Unequal and Morganatic Marriages in German Law

In this essay I try to clarify a set of related concepts: unequal marriage, mismarriage, morganatic marriage. They represent an important aspect of dynastic and succession laws in German dynasties. The approach I take is legal-historical: I want to understand these concepts as legal concepts in their historical context.

The essay proceeds as follows. The rest of this introduction provides the context for unequal marriages in European dynasties and in German society. I then provide and analyze definitions of these concepts (1), and describe their joint history (2). I then consider in turn separately unequal marriages and mismarriages through examples (3) and then turn to a general discussion (4) and examples (5) of morganatic marriages. An appendix provides examples of equality requirements in house laws, another appendix lists the marriages mentioned in this page in chronological order, and the bibliography is organized by topic.

Rules on marriages in European royalty

From the late 18th c. most European monarchies have adopted various rules controlling whom their dynasts could marry and how. Early examples include the Royal Marriages Act in Britain (1772), the Pragmatic Sanction in Spain (Mar 23, 1776), the Regie Patenti in the kingdom of Sardinia (Sep 7, 1780 and Jul 16, 1782), the French imperial family statute (1806), the Russian Pauline laws (1820), etc. The rules varied in their requirements and in their effects, making contravening marriages either null or else imperfect. They have in common that, in almost all cases, they were written rules edicted by a sovereign.

Concerning these marriage rules, Germany's history is unique for several reasons.

Until 1806, inside the area of Germany (or the Holy Roman Empire) there existed a large number of more or less autonomous dynasties, under the nominal lordship of an elected monarch (the Emperor). They were much more powerful than titled nobles in other countries, while not quite achieving full-fledged independence and sovereignty. In these as in other matters, the Emperor had powers, albeit limited, to intervene or regulate family affairs of these families, but for the most part these dynasties developped their own rules, more or less experimentally. It was acknowledged that these families could operate, at least as far as family and inheritance was concerned, outside of the normal laws, although the degree of autonomy they enjoyed was a matter of dispute. The families derived these rules partly in common, partly independently of each other. There were enough of these families that something like a common law peculiar to them could develop. It was part of what came to be known as Privatfürstenrecht, the private law of princes; a body of law that was heterogeneous and hybrid: in-between private and public, based on individuals acts, group practice, and court rulings.

Another peculiarity of Germany was its basic feudal law, of Germanic origin, which prescribed equal division of lands among male siblings. This well-known feature (although restricted in 1356 in the case of electorates) led to fragmentation of estates and principalities over time. Dynasties striving to maintain size and coherence fought over time against the strength of this general norm, and against the competing demands of younger siblings, looking for ways to curb this fragmentation. One direct approach was to introduce primogeniture, the rule that everything went to the eldest born; but few (aside from Brandenburg in the late 15th c.) were successful, at least early enough. Another approach was to limit the ability of younger sons to marry, or to curtail the claims of their offspring.

Another characteristic of Germany, not unrelated (in my opinion) to the previous one, was a growing obsession from the 15th c. with the concept of equality in marriages. Of course, most European monarchies show the same trend of marrying their members only within the most elevated class, which by the 16th c. means royalty of other countries. In the Holy Roman Empire, only a handful of powerful princes, essentially the lay electors (Austria, Prussia, Palatinate, Bavaria, Saxony) could aspire to a status equal with other European royalty. Others had to define their own group of eligible spouses within the confines of the Holy Roman Empire. This group is known as the upper nobility (Hochadel). What is peculiar in Germany is that dynasties tried to establish the principle that marriages that were contracted outside of this group were less valid; and, in particular, that the offspring's claims were automatically curtailed, as a matter of law.

Finally, German law had a peculiar institution (derived from Lombard law) called "morganatic marriage." This was a marriage in which, by virtue of the contract itself, the claims of the spouse and offspring were limited in certain ways. This institution was unique to German law (as far as I know, it was unknown in French, Spanish, English, Scandinavian, Austrian, or Russian law). The concept of morganatic marriage was always closely related to that of unequal marriage, because it was a useful legal tool to achieve a particular aim (curtail the rights of spouse and offspring). Part of this essay attempts to explain exactly the nature of this relationship.

Estates and nobility in Germany

To understand what "unequal marriage" might mean, some notions about class distinctions in Germany are necessary.

German society, like others shaped by feudalism, was divided in states or estates (Standen). Such divisions can be found also in English common law: for example, Blackstone divides English subjects into the clergy and the laity; the laity into the civil, military and maritime states, the civil state into the nobility and the commonalty. French society was similarly divided into three estates, the clergy, the nobility, and the "Third estate". Further gradations could be made: Blackstone distinguished within the nobility the degrees of the peerage, and within the commonalty knights, esquires, gentlemen, tradesmen, artificers and laborers; but ultimately, in English law, the only distinction that really mattered was that between peers and commoners.

In German society, these distinctions mattered quite a bit more than in England. A person's Stand (state) was more than simply his or her station in life, or occupation. Rather, it indicated to which legally defined class of society he or she belonged: upper nobility, lower nobility, burgher, peasant. Members of each state had distinct rights and obligations, privileges and restrictions.

A person's state could be changed; in particular, the Emperor had the power of raising one's state (Standeserhöhung). However, a person's Geburtstand was the state in which he or she was born, and that obviously could not be changed. Which one mattered for which purpose could be a controversial question.

Upper nobility (Hochadel) in the Middle Ages

As German jurists (e.g., Pütter) saw it, the original division of estates in Germany was between nobles (nobiles, Edle), free (liberi, ingenui, Freie), and unfree or serfs (servi, Knechte); the nobles possessing either land or public functions that distinguished them from other free men; the unfree being the medieval equivalent of slaves. This division later evolved as in other European societies with the emergence of urban residents (burghers) and the transformation of serfs through emancipation into plain peasantry in the 12th and 13th c. Where Germany differed from the rest of Europe was in the further distinction between the upper and the lower nobility (Hochadel, Niederadel). Whereas in most other European societies, the king stood alone at the apex of the feudal society, distinct from the nobility and the commonalty, in German's fragmented political constitution, sovereignty was shared by dozens of noble families, which together constituted a distinct stratum of the nobility. In German law, this distinction was almost as important as that between nobility and commonalty.

The Hochadel, then, consisted of the princes, counts and lords of the Empire (Fürsten, Grafen, Herren), who were represented in the Imperial Diet (Reichstag) by the late Middle Ages: sometimes called the herrschender Adel, it constituted the class of rulers. They were all members of a few dozen families; the princes being distinguished from the counts by greater possessions, and the lords being agnates (related in male line) to the princes and counts.

State of the Empire (Reichsstand)

The special status of these families manifested itself in the constitution of the Empire as it evolved in the 16th c. (Please see first a general presentation of the constitution of the Holy Roman Empire.) To the status of territorial ruler corresponded a seat and vote in one of the colleges of the Reichstag, the Imperial Diet. In the late 16th c., the multiplication of votes due to territorial fragmentation led to reforms. After the Diet held at Augsburg in 1582, the list of votes remained fixed, notwithstanding further territorial divisions. Furthermore, the right to vote became attached to a land, rather than to a person or family (of course, land was inheritable within families). A member of the Diet with seat and vote (individual or shared) was called a Reichsstand, or state of the Empire.

At some point (Abt 1911, 103 n2 cites various possible dates, from the turn of the 16th c. to 1653 to the 18th c.), the definition of Hochadel became congruent with being a Reichsstand (adjective: reichsständisch). The reason is that the Emperor, as "fons nobilitatium," had the power to create new princes, counts and barons of the Empire, a power which he began to use more frequently. The existing princes, counts and barons were obviously loathe to see the value of their title diminished. The members of the Diet complained and, after 1582, it became the rule that such new princes and counts would not of right have a seat at the Diet. Furthermore, in 1653 the Electoral Capitulation included strict rules on the process by which the Emperor could create new states of the Empire. In particular, any new member had to possess an immediate territory of sufficient size, and had to be accepted by his peers (princes or counts).

Thus a distinction emerged between

families that were part of the Diet in 1582 : the "old princely" and "old comital" (altfürstliche, altgräfliche) families
families who were admitted to the Diet between 1582 and 1803: the "new princely" (neufürstliche) and "new comital" (neugräfliche) families
families or individuals who received the title of Reichsfreiherr, Reichsgraf or Reichsfürst but were not admitted to the Diet

Only the first two groups were part of the Hochadel. Those in the third group were titular counts and princes but in no way accepted as part of the Hochadel.

Thus it would seem that having seat and vote in the Reichstag would be a clear criterion for belonging to the Hochadel. But there were further complications:

In principle, the possession of a territory was a pre-condition for admission in the Diet. However, in the second half of the 18th century a number of counts sat on the counts' benches without any such territory. They were called "personalists" because they had been admitted on a personal basis (ad personam), and some jurists did not consider them to be part of the upper nobility (e.g., Pütter 1795, 143).
Possession of a large immediate territory was a condition for entry, but not a condition for remaining in the Diet. It happened that territories became subjected to another state of the Empire, thus losing immediate status; yet the owner remained in the Diet. Examples include XXX.

Consequently, whereas, in the 16th century, it was fairly easy to say who was in the upper nobility and who wasn't, it had become more difficulty by the turn of the 19th century.

Three concepts came into play:

immediate status (Reichsunmittelbarkeit),
sovereignty over a territory (Landeshoheit),
seat and vote at the Diet (Reichsstandschaft).

The three were "usually" related, in that the sovereign of a territory was a state of the Empire, and a state of the Empire usually had sovereignty over an immediate territory; but there were exceptions both ways. Various authors emphasized one or a combination of these elements. Thus, Runde (1791) required all three; Pütter emphasized sovereignty; Gönner and Leist emphasized seat and vote at the Diet (in distinction with the imperial knighthood, see below). Among 19th century authors, the main division was between those who required all three criteria , and those who considered Reichsstandschaft to be the sole criterion (Hohler, Klüber, Zoepf, Rehm).

Using the second, slightly broader concept, at the end of the 18th century the high nobility consisted of those families which had seat and vote at the Imperial Diet, with title of either prince or count (the last baronial family died out in 1775), numbering about 25 princely (fürstliche) and 80 comital (gräfliche) families.

Imperial knighthood (Reichsritterschaft)

The imperial knights (Reichsritter) formed the Imperial knighthood (Reichsritterschaft) or Imperial nobility (Reichsadel), a hereditary class that stood in between upper and lower nobility. Concentrated in southwest Germany (Swabia, Franconia, Rhine valley, Alsace), in particular the ancient possessions of the Hohenstaufens, they were never considered part of the upper nobility, but they did have a limited special status, being immediate vassals of the Emperor, thus not part of the local nobility, and winning in the 17th c. the right to form regional corporations (although never represented at the Diet). They frequently intermarried with the comital families. By the end of the Empire, there were about 350 families of imperial knights.

Lower nobility (Niederadel)

The rest of the nobility consisted, by definition, or people who were neither territorially sovereign nor immediate vassals of the Emperor. They were therefore vassals of someone else (e.g., a member of the upper nobility) and subject to the authority of that local sovereign (Landesherr) and the local laws. Such nobility was called lower nobility (Niederadel) or local nobility (Landesadel, landsäßiger Adel). They enjoyed nobiliary privileges under local law, as did nobles elsewhere in Europe, but their legal status within the Empire was nothing like that of the upper nobility.

Within the nobility, various distinctions could be made depending on the ancestry of the individual. Since the 14th century, the Emperor granted letters (Briefen) of ennoblement, thus creating what was called Briefadel. The Elector Palatine, the archdukes of Austria held from the Emperor the power of ennoblement and used it within their domains independently of the emperor from the 16th c., soon followed in the 17th century by several other states (Prussia, Bavaria).

A distinction could also be made depending on how many ancestors of a given person had been nobles themselves. One could examine the person's grandparents (4 ancestors), or great-grandparents (8), or great-great-grandparents (16) and require that they all be nobles. Such degrees of nobility were called Vierahnenadel, Achtahnenadel, Sechszehnahnenadel. Nobility proofs (Ahnenprobe) of this type became common from the 15th c. for entry into a variety of institutions, particularly the diocesan chapters (Stifter) of sees which were states of the Empire, and whose members elected the bishops (often from their own number). The term stift(s)mäßig refers to the degree of nobility needed to enter chapters that required nobility (those of Strasburg, Salzburg, Augsburg, Cologne were sometimes explicitly cited): typically, chapters required 8 quarters, that is, all great-grandparents of noble birth.

How long the particular family had been noble could be a criterion. The vague phrase alter Adel, old nobility, did not preclude ennoblement, but presumed that it took place, if at all, in a sufficiently distant past (for example, before 1582, the cut-off for "old" princely and comital families). In the late 19th c. a term came in vogue to designate families that were noble since before some cut-off date (1300 or 1400): Uradel, ancient or original nobility, but it does not appear much in discussions of equality requirements. In such requirements, only one line of ascent (the male or patronymic line) came under consideration.

The absence of any particular degree of nobility was denoted by the phrase 'simple' or 'common nobility' (einfacher, gemeiner Adel).

Equal and Unequal

It is useful to define a couple terms that will be used repeatedly, and that both relate to equality or unequality

standesmäßig: of equal state, or commensurate rank
(opposite: unstandesmäßig)
ebenbürtig: of suitable birth for marriage purposes.
(opposite: unebenbürtig)

In medieval law codes such as the Sachsenspiegel, ebenbürtig simply meant of the same state (free or unfree), but, because of the emergence of house laws, 19th c. jurists (e.g., Abt 1911, 133) came to make a distinction with standesmäßig.

Ebenbürtigkeit, being grounded in specific house laws, is necessarily a relative concept: A may be suitable for B, but not B for A, depending on A's house laws and B's house laws. Thus, the arbitration panel that decided the Lippe dispute in 1897 noted that the Schaumburg-Lippe princes were ebenbürtig (as sovereign princes) for marriage with other families (including that of Lippe), but (as descendants of a disputed marriage) might not have dynastic rights in Lippe. By contrast, Standesmäßigkeit is an absolute concept: either A and B are of the same estate, or they aren't

1. Unequal marriages and morganatic marriages

1.1 Definitions

There is considerable confusion over those two terms, which are commonly taken to be mere synonyms. Yet it is clear from the legal literature that the two were originally quite distinct concepts. I follow here the definitions given by Zoepfl (1863).

unequal marriage (unstandesmässige Ehe, ungleiche Ehe; matrimonium impar/dispar, matrimonium inaequale): a marriage between spouses of different estates: for example, a man of the upper nobility with a daughter of an imperial knight or a burghess.

mismarriage (Mißheirat; disparagium, matrimonium ex lege inaequale): a marriage that is valid under canon and civil law, but does not have full legal effects, because it violates some requirement of the private law of princes. In particular, it is an unequal marriage in which the inequality between the spouses by law deprives the lower-ranking spouses and her children by that marriage of the full legal effects of marriage.
morganatic marriage (morganatische Ehe, Ehe zur linken Hand; matrimonium ad legem morganaticam, ad legem salicam): a marriage for which it was specified in the original contract that the spouse and any children would not share the husband/father's rank and would have no claims to his inheritance.

The term "mismarriage" is not of my invention (it is in the Oxford English Dictionary, defined as "an unsuitable marriage"). I use it to translate Mißheirat and preserve the distinction with unequal marriage. The French term mésalliance does not make the distinction either. An alternative would be to resurrect the English noun "disparage" in its original sense ("Inequality of rank in marriage; an unequal match; disgrace resulting from marriage with one of inferior rank" OED2).

1.2 What is the difference?

All three are sub-species of marriages, but they do not coincide.

The statement that a marriage is unequal is a statement about the ranks of the two spouses. It is essentially a "sociological" statement, keeping in mind that the distinction between estates was also very much a legal one. It could be applied to all sorts of marriages between all sorts of individuals who married across classes or states: burgher and peasant, noble and burgher, etc. Whether a given unequal marriage was legally different from an equal marriage (i.e., was a mismarriage) depended on the applicable laws, and typically such a difference could exist only for the upper nobility (see Häberlin 1793).

A mismarriage might have nothing to do with inequality, for example, when the house laws require prior approval of the head of house: a marriage contracted without that consent would be a mismarriage (Abt 1911, 134). Some house laws make such marriages null and void, in which case they are not marriages at all; others accept that they are canonically and/or civilly valid, but deprive them of legal effects with respect to succession rights and family inheritance.

A mismarriage also results when applicable laws (public laws, house laws, or family customs) make an unequal marriage legally different from an equal marriage. If, for a given unequal marriage, the applicable laws (say, the house laws of the husband's family) state that such marriages do not have full effect, then it is so, whether or not or or both spouses agree or say that they agree.

A morganatic marriage is a kind of marriage (usually, but not necessarily unequal) without full legal effects. It looks on the surface very much like a mismarriage: typically, spouse and children are denied their higher-ranking parent's rank, and children have no claims on that parent's patrimony. Thus, the legal effects (or lack thereof) are often the same. But the reason why that marriage lacks such effects is quite different. In a morganatic marriage, the reason is the marriage contract itself, voluntarily entered into (in particular, with the consent of both spouses, in principle, since it is a contract). In a mismarriage, the reason is the (in principle) automatic application of relevant laws.

Notice how the concepts fail to overlap exactly:

an unequal marriage may not be a mismarriage (if the relevant house laws authorize that particular degree of inequality)
a mismarriage may not be unequal (case of a marriage contracted without the consent of head of house)
a morganatic marriage may not be (unambiguously) unequal

1.3 Does the difference matter in practice?

Depending on the context (particularly the historical period), yes or no.

By the end of the 19th century, the people in Germany who could enter into morganatic marriages were the same as the people for whom an unequal marriage was, by virtue of almost all house laws, automatically a mismarriage, namely the upper nobility. Moreover, morganatic contracts had become exceptional, if not extinct. So, for practical purposes, the distinction is moot.

However, the institution of the morganatic marriage long precedes that of the mismarriage (between free people); so, prior to the 19th century, the distinction does matter. This will become clearer after the historical remarks that follow.

The fundamental difference is that, even if the consequences of a mismarriage and those of a morganatic marriage may appear to be the same, the (legal) causes are not (Häberlin 1793, 8). This has practical implications.

One practical difference is that the clauses of a morganatic marriage clauses can vary, depending on the wishes of the contracting party, and the rights of spouse and issue can be more or less restricted.

As Klüber (1818, 8:176) puts it: "Die durch Vertrag festgesetzte Rechtsungleichheit, kann sich beziehen: auf einen von beiden Ehegatten, und auf alle Kinder; bloß auf einen von beiden Ehegatten, und nicht auf die Kinder; bloß auf die Kinder, und nicht auf einen Ehegatten; auf einen von beiden Ehegatten, und nur auf gewisse Kinder, z. B. die Töchter; auf Standes- und Erbfolgerecht; bloß auf Standesrecht, und nicht auf Erbfolgerecht; bloß auf Erbfolgerecht, und nicht auf Standesrecht."

This cannot be the case for a mismarriage, since the contracting parties do not have the power to alter or limit the application of laws that are binding on them.

Another practical difference lies in who could contract which type of marriage. If local law explicitly provided for such contracts (as in Prussia), then anyone authorized to do so could make one, and the legal consequences were clear. Mismarriages depended on the applicable house law or custom, which proved often difficult to ascertain.

1.4 When is an unequal marriage a mismarriage?

There is, of course, a gigantic literature on this question.

Notes from Zoepfl

Häberlin: the rule is that the wife takes the rank of her husband and the children can inherit. A mismarriage is an exception to the rule, and must therefore follow from a clear law or binding custom; and, in doubt, the rule prevails, not the exception. Häberlin was of the opinion that this could only happen by virtue of a law or binding custom. For him, the introduction of equality requirements by anyone other than the first owner could not be binding, because no one but him could change the succession rules and deprive part of the issue of the original owner of their rights. He rejected the counter-example of introduction of primogeniture, saying that these did not deprive anyone of their rights, but only postponed them (and potentially made them larger, since the second-born stands a chance to inherit everything).

To be completed.

Some opinions cited in RGZ 2:150-51

any marriage between Hochadel and non-Hochadel is a mismarriage:
Pütter 1796, 350; Eichhorn , deutsch. Pr. R. §292; Gerber deutsch. Pr. R. §224. Kohler §40ff. Göhrum II §77ff. Beseler deutsch. Pr. R. §171. Zachariä d. St. u. B.R. §68. von Holtzendorff Rechtslexicon s.v. Ebenbürtigkeit. Dieck: die Gewissensehe u. Mißheirat, p. 219ff. Sommer, neues Archiv für preuß. Recht 10:592.
Hochadel and Niederadel (unless explicitly forbidden) is equal:
Moser 2:130ff. Runde, deutsch. Pr. R.§576ff. Heffter Beiträge zum deutschen Staats- und Fürstenrecht I:1. Heffter die Sonderrechte, §58ff. Leift: deutsches Staatrecht §26. Klüber: öffentliches Recht des deutschen Bundes §303. Pözl die Comptenzfrage in dem Bentinckshen Successionstreite p. 88. Klüber Abhandlungen I:225. Zöpfl über Mißheirathen p. 74f. Gengler, deutsch. Pr. R.§134. Weiske Rechtslexicon 7:222.
only Hochadel and lower commonalty (niederer Bürgerstand): Bluntschli, deutsch. Pr. R. §195; cf. Heffter I:28.
only Hochadel and serfs: Zöpfl über hohen Adel u Ebenbürtigkeit p. 137ff. Mittermaier deutsch. Pr. R. (7th ed.) §378, 379

2. Historical Development

2.1 Medieval law

As mentioned above, medieval German law knew of three states: noble, free and serf. The rules of German law originally prohibited marriages between free and unfree; later, under the influence of Church law which allowed such marriages, they became accepted as marriages, but with the consequence that the children had the status of their unfree parent. But, within the class of free people, customs make no distinction as far as marriage is concerned between nobles and simple free (Abt 1911). In particular, the 13th c. Sachsenspiegel explicitly states that a woman's son can be of higher rank than she is (I. 51 §2) and that a son inherits his father's rank as lord or knight even if the father is of higher birth than the mother (III. 72); and the 14th c. gloss says that a man ennobles his wife as soon as she enters his bed (gloss to Landr. III. 45 §3). Zoepfl (1863, 1:616) does cite the Schwabenspiegel to the effect that the child of a Mittelfrei parent and a Semperfrei parent is Mittelfrei, but finds the statement doubtful. Abt (1911, 62) concurs and conjectures that this later, less reliable compilation reflects misunderstandings as to the meaning of these words; other passages show that the author used the term Mittelfrei at times to designate free men, at other times to designate ministerials. Abt (1911, 70-71) cites one exception: customs of Frisia stated that children inherited only if the father had married an equal mother. Also, it seems that some feudal laws on inheritance of a knight's fee required four grandparents of knightly rank to inherit.

The examples of free/unfree marriages that one finds are between nobles or free men and wives from ministerial families. Ministerials were a particular form of unfree people who served at the courts of nobles, and over time many of them rose in the ranks of society to a station not far below that of the nobility; some even made it into the nobility (Waldburg, Erbach). Abt cites a catalog of 74 such unequal marriages before 1400, of which 52 are with ministerials, most (45) in the 14th c. Up to the mid-14th century, some of these marriages have the characteristics of mismarriages, in that the children do not have the rank and rights of their noble parent. Thus, as long as the ministerial origins of the mother were still remembered, the old rules still applied By the end of the Middle Ages, however, the origins of these families was forgotten or irrelevant. The last emancipation of the children of a noble and the daughter of a ministerial dates from 1408 (see below).

Starting with Pütter (1796), some writers have tried to relate later concepts of unequal marriages to these earlier rules (or even to claim that all lower nobility was descended from ministerials!). Pütter's thesis was that these ancient norms of German law were obscured by the influence of canon law and the reception of Roman law in the late medieval period, and only gradually recovered in later centuries. Zoepfl (1853) argues strenuously against these views. He argues that the history of equality requirements really begins at the close of the medieval period, and is unconnected to the early medieval rules about marriages between free and unfree.

2.2 House laws (15th-17th c.)

In the 15th century one sees the first appearance of house laws containing rules against marriages outside of the upper nobility.

In 1396 Johann von Isenburg-Limburg (d. 1407) specified that his fief (1/3 of Limburg an der Lahn) would go to his daughters Klara and Kunegunde in absence of sons, and that, if they were to marry, they should marry "mit ihren gleichen edeln Mannen" in which case their husbands woud hold the fief (Pütter 55). Although he was a dynast of the upper nobility, the fief he was restricting was not an immediate territory, and the clause was specific to his children, not a general rule. But it represents an early example of the trend.

The first actual examples of house laws making such prohibitions are the successoral pacts of the counts of Werdemberg and Heiligenberg in 1473 and 1494 (approved by the emperors Friedrich III and Maximilian I); they specified that only legitimate sons of "grafynen oder frynen" (countesses or baronesses) would be entitled to succeed. In 1489, a ruling by the emperor on a long-running dispute between the Stuttgart and Urach lines of the counts of Württemberg prescribed that Eberhard VI, should he remarry, should do so only "mit ainer die sin genoss ist", but if he should marry "mit ainer myndern und nydern person" the issue would have no succession rights. In the second half of the 16th c. similar rules multiply and become common in the 17th c., although some families (Wittelsbach, Oldenburg, Lippe) still adopt no explicit rules.

The rules that were adopted varied considerably, however:

Some rules forbid marriages with persons of lower rank (Wittgenstein 1607: "mit einer geringen Standsperson", Leiningen 1614: "mit geringern Stands-Personen", Württemberg 1617);
some allow marriages with the old nobility (von der Leyen 1661, Schlick Graf zu Passau, will of 1672: "auss dem alten Herrn Stand") or with nobility of certain quarters (Fürstenberg 1658: stiftsmässig) or simple nobility, explicitly or implicitly (Limburg 1604: only prohibits marriage "zu einer Bürgerin oder Bäurin").
Others prohibit marriages with the lower nobility (will of Viktor Amadeus von Anhalt-Bernburg, 1678).
Some excluded the foreign nobility (Johann Wilhelm of Saxe-Weimar, will of 1573; Ernst of Saxe-Gotha, will of 1654),
some required a specific religion (Ernst of Saxe-Gotha 1654, Eberhard III of Württemberg, will of 1664).
Some even prohibited marriages with a higher-ranking family (Reuß von Plauen 1668).
Finally, some expressed a preference for equal marriages but allowed marrying for money (landgrave Ludwig V of Hessen, will of 1625, told his sons to marry with "solche Personen und Örter ... von dannen ihnen etwas namhaftes von Vermögen und Nahrung zukomme") and others required only a legitimate marriage but conspicuously failed to state any requirement on the spouse (Fürstenberg 1562).

The consequences of the marriage also varied. Usually the issue was deprived of all rights, but not always (count Johann zu Nassau-Katzenellenbogen, will of 1597: reduced to 1/3 of the father's estates). In some families those contracting the unequal marriages themselves saw their rights restricted or taken away (Schenken von Limburg 1604, Leiningen 1614: "bey Verlierung aller seiner Erbschafft, Land und Leut"; Waldeck 1678, Fürstenberg family compact of 1699; Saxe-Weimar 1724; Anhalt-Schaumburg 1752; in the Oettingen pact of 1766, which instituted primogeniture in the house, it was specified that if the mis-married prince held or was heir to the primogeniture, it automatically passed to the next in line who was unmarried or properly married, and he received instead an apanage; if an apanaged prince mis-married, he kept his apanage but lost the succession to the primogeniture; Moser 108).

What were the effective powers of such house laws? The answer is not quite clear. It was generally accepted that princely families enjoyed autonomy in their private affairs, and could arrange them as they wished, without prejudice to binding Imperial laws and customs, or to the rights of others. But how much did equality clauses violate existing customs and the rights of others? Pütter (1796, 514) cites the remarkable opinion of the law faculty of Helmstädt, that the house law of Anhalt-Dessau (1637) against unequal marriages was unenforceable, because men were equal to each other by nature, the natural liberty to marry could not be restricted, the princely rank being an element of public law could not be modified by private contracts, and that imperial confirmation did not make the house law enforceable because it always contained an implicit reservation saving the rights of others (nisi juri sint contraria quorum confirmatio petitur). Moser (1775, 2:162-63) follows similar arguments. Having concluded to the existence of a custom to the effect that marriages between the upper and lower nobility are not mismarriages, he derives the following implication. House laws that were formulated before the emergence of that custom remain valid, but now that such a custom exists, a clause making such marriages mismarriages would be invalid, as it would violate existing law and the rights of third parties (namely, the lower nobility which enjoys a right to marry the upper nobility). Another argument limiting the power of such clauses is that only the original recipient of the fief or possessor of the estate could place restrictions on its inheritability (Häberlin 1793). Most jurists, however, recognized that the autonomy of princely families was wide-ranging, as it was grounded in their territorial sovereignty. It was also held by some that the approval of emperor was not required in principle for such laws to be valid. On the other hand, without imperial approval the changes of enforcing such laws through the Imperial courts were diminished.

2.3 Common law until 1742

What if the house laws are silent or ambiguous? It is generally accepted that the sources of the private law of princes are, in that order:

house laws: treaties, compacts, testaments, contracts of the house;
actual practice in the house, to the extent that it is consistent and unambiguous, and
the "common law" (gemeines Recht).

The first two pertain to the family under consideration (that of the bridegroom), the third pertains to all families of the upper nobility collectively. If the first two are silent, then the third comes into play. but for the common law of princes to provide a binding rule, it must be that practice (as followed by families and enforced by courts) is uniform, and the doctrine among jurists is consistent. The doctrine was consistent, but against equality requirements, and practice was far from uniform. Thus, common law provides little guidance except in the most clear-cut cases.

Doctrine

Here I follow Pütter's very useful, albeit sometimes biased, discussion of the literature.

In the 16th and 17th c. the vast majority of jurists considered as fully valid marriages between princes and women of knightly or burgher rank. The only question of dispute is whether the spouse is entitled to the rank of her husband without imperial intervention.

Petrus am Andlau, doctor of both laws and canon in Colmar, wrote ca. 1460 a treatise on the Roman Empire (de imperio Romano). in the 15th c.: he mentions the claims of some Swabian families for the existence of a customary rule against unequal marriages, and who rejects it as invalid (Zoepfl 618; Pütter 78-80 interprets him as an reluctant witness for the existence of an old German custom).

Pütter (1796, 92-99, 491-93) credits (or blames) Franz Pfeil (1600) (also quoted by Abt 1911, 85 n4) for having buried the true German law under Roman law and canon law, and having argued in 1550 in and opinion on the Brunswick/Campen case that a legally married wife received the rank of her husband, and that no contract between parents could deprive their children of any rights. He considered that morganatic marriages were only valid in Milanese custom and for widowers. Regner Sixtinus (1543-1617) and Hermann Vultejus (1565-1634) and Sixtin, both professors in Marburg, argued (probably in the 1580s) that a non-noble was ennobled by marrying a noble and their children were noble, by general custom (generali consuetudine). These authors stated their proposition in general terms about noble/non-noble marriages, but their successors explicitly applied it to marriages of the upper nobility:

Georg Obrecht (1547-1612) argued that the son of a duke or count did not suffer from being born of an unequal mother (De regalibus, Strasburg 1604, thes. 118). Johann Georg Becht did contradict this opinion in passing, saying it was disroved by "notoria experientia" (de securitate et salvo conductu, Basel 1607, p. 743).
Heinrich Bocer (1561-1630): Tractatus de regalibus, Tübingen: Cellianus, 1608, p. 66-69
Matthias Stephani (1576-1646): de nobilitate civili. Frankfurt 1617, p. 67f
Martin Rümelin: dissertatio ad prooemium Aureae Bullae. Stuttgart 1619, 3d ed. 1655, p. 432)
Christoph Besold (1577-1638): Consilia Tubingensia, vol. 2, Tübingen: Cellius, 1661, p. 290-95, cons. 88, on the case of a baronial family of B. raised in 1442 to the rank of count, whose head had recently (in 1628) entered into an unequal marriage. Besold argued that it was not a mismarriage, citing Pfeil, and also the precedent of Baden/Rosenfeld, and the usual arguments drawn from Roman and canon law.

In addition, Zoepfl (1863, 1:618) cites Horn, Titius, Schilter. Indeed, Pütter has a hard time finding any contradictors in this period. Christoph Lehmann (Speierische Chronik, Frankfurt 1612, p. 91-95) says that children of an unequal marriage follow their mother's status (der ärgern Hand folgen). One jurist, Bernhard Bertram (d. 1640): De comitiis Imperii Romano-Germanici Basel, 1621 argues in his dissertation that children of unequal marriages cannot succeed to their father's vote and seat in the Reichstag, on the basis of a clause in the Reichtag's Regimentsordnung of 1521 (a conclusion which Pütter admits is rather dubious) and the practice of Stifter requiring nobility of father and mother. Pütter admits that these arguments are presented more for the purpose of debate than as decisive. At any rate, this dissertation presented at Iena in 1615 prompted a strong response in the form of Georg Schubhard (1594-1630) whose dissertation De austregis hoc est privilegiatis instantiis ordinum S. Rom. Germ. Imp (Basel, 1619) countered with the examples of imperial elevations of spouses, and cited an army of writers from Pfeil to Josias Nolden.

The first printed work expounding a legal theory on mismarriages, in the form of a legal opinion on a particular case, is Salmuth (1660). The author was formerly a counsellor and auditor in Bremen-Verden, and chancellor of Lippe; given the details of the case, it was probably written ca 1637 in the Anhalt-Dessau/Krosigk case. The work is, according to Pütter, very long and full of digressions. It is usually cited as arguing that the marriage of a prince and a noble-woman is not a mismarriage; in fact it argues that the Anhalt-Dessau/Krosigk marriage was a valid but morganatic marriage, whose clauses had to be executed, thereby excluding the issue from succession "ob pactum speciale".

Myler von Ehrenbach (1664) argued that marriages of princes and nobles were not unequal, on the basis of roman and canon law, as well as the classic examples. His work was extremely influential, and his conclusions followed closely in their general treatises by a number of jurist (many cited in Moser):

Heinrich Henniges: De summa imperatoris romani potestate circa profana. Nürnberg: Endter, 1677. cap. 2 §18
Johann Wilhelm Itter (d. 1725): De feudis imperii. Frankfurt: Martius, 1685. 2d ed. Frankfurt: Johann Friedrich Rudiger, 1714. cap. 14 §9
Heinrich von Cocceji (1644-1719): Juris [Iuris] Publici Prudentia Compendio exhibita. Frankfurt: Schrey & Meyer, 1695. cap. 28 §29
Johann Friedrich Pfeffinger (1667-1730): corpus iuris publici i.e. Vitriarium illustratum universum. Gotha 1739, 4:196: "nobilis cum ignobili verum legitimumque esse matrimonium arbitror, natosque inde liberos iisdem gaudere praerogativis, quibus alias liberi ex aequali thoro suscepti, nisi consuetudo vel lex provicinialis, aliud involvant".

Others were more cautious: for example, Johann Friedrich Rhetz [Rhetius] (1633-1707) in his institutiones iuris publici (1683; 2d ed. 1698, lib. 1, tit. 21, §9) said that "consuetudo et praxis fere diversi quid induxit".

One of Ehrenbach's followers was Feltman (1691), whose work was written in the context of the Zelst case. He argues, as most of the literature on the 1679-97 period did, that a morganatic marriage could later be declared equal unilaterally by the person who contracted it. Another interesting document, produced in the Anhalt-Dessau/Föse case, was the opinion of the law faculty of Helmstädt (1698), which held that the house law agreed by the princes of Anhalt-Dessau in 1637 against unequal marriages was not enforceable.

The Weede, Eichelberg, Witzleben cases were the occasion of various anonymous pamphlets; one was by Johann Nicolaus Hert (1706). Pütter credits an "enlightenment" spreading our of Halle for the emergence of a group of writers reacting against the Mylerian thesis: Ludolf (1711), Struve (1711), Gundling (1715), Ludewig all posited a fundamental differece between upper and lower nobility, with legal consequences for the issue of unequal marriages. The Nüßler case prompted opinions of the faculties of Halle and Helmstadt in 1717, wholly in line with Myler's argumentation (in Hempel, Staatsrechts-Lexicum, 2:843, 855). The Wuthenau case prompted an opinion of the Wittenberg faculty, drafted by Johann Balthazar Wernher (1738). Several works were written asserting the equality of the imperial knighthood: Estor (1727), Kopp (1728), Wolfart (1734). From the rest of the rather unequal literature on unequal marriages, Pütter cites Mannsbach (1740) who follows mostly historical examples from comital families to conclude that marriages of princes with imperial knighthood are not unequal; Estor (1740), Gonne (1744). Bauer (1750) asserts that for princes, unequal marriages are mismarriages, but the issue cannot be deprived of a residual right in case of extinction of the issue of equal marriages; for counts, he allows the opposite rules of Roman law to prevail.

Moser vs. Pütter

Johann Jakob Moser (1701-85) and Johann Stephan Pütter (1725-1807) were the most prominent jurists of public law in 18th c. Germany.

Moser trained at Tübingen where he became professor at age 19, moved in 1736 to Frankfurt-an-der-Oder but quit in 1739 because of differences with the Prussian king. The rest of his life, aside from a judicial position in Württemberg where his principles landed him in jail, were devoted to the compilation and study of materials relating to German public law, the result being two colossal collections, 54-volume Teutsches Staatsrecht and the 23-volume Neues Teutsches Staatsrecht. Vol. 19 of the former and vol. 12 of the latter contain material related to mismarriages. He is called the "arch-publicist" of the Old Empire and the father of German public law.

Moser begins with a bibliography of the literature up to his time, then collects examples of mismarriages, morganatic marriages, and then describes the legislative history (chiefly the capitulation of 1742). He then turns to his own thoughts on the matter (123-74). He begins by stating that the question is not what is right, or what should be, but what the law is. There is no modern imperial statute, otherwise there wouldn't be any debate. People have turned to various sources. Some have looked at the laws of Merovingian and Carolingian times, and to medieval law (Schwabenspiegel, Sachsenspiegel). But those laws are not applicable to the present time, and their exact tenor is uncertain. Others turn to Roman law, canon law, Lombard feudal law, or natural or divine law. But the question at hand is specific to Germany, and its peculiar constitution and gradation of the nobility. Finally, many have more recently turned to German customs and practices as a source. Some have only considered what customs were in force in medieval times, when the various categories of the German society were not allowed to intermarry. But it is far from clear to what these categories correspond in the 18th century, and in this as in so many other things the German constitution can well have changed (tempora mutantur et nos mutamur in illis). Another method is to consider modern precedents, but only in cases of tournament requirements, membership in chapters, etc. But it is difficult to find any guidance among the extreme diversity of requirements among the chapters of spiritual states of the Empire, ranging from no nobiliary requirement to 16 quarters. Furthermore, the rank as state of the Empire and the precedence of the bishops elected from among these canons has nothing to do with the entry requirements into the chapter. And it is well known that admission into the Reichstag is not conditional on producing any pedigree: thus the prince Piccolomini and the duke of Marlborough were admitted in the college of princes despite the lack of any (German) princely ancestry, and the counts of Holzapfel (of non-noble birth) and the count of Wartemberg (married to a non-noble) were admitted on counts' benches without any reservation or dispensation.

The only possible source, according to Moser, is contemporary practice and rulings, particularly of the Reichshofrat, whose jurisdiction in the matter in uncontested.

To be completed.

Pütter, trained in Marburg, Halle and Iena, taught at Göttingen from 1746 to his death; his works on all topics were widely read, but he is particularly regarded as the pre-eminent specialist of public law. in the 18th c.

Pütter wrote a whole treatise on mismarriages, which I have used extensively here. His work follows Moser's structure (with a slight change of order), with first a historical part collecting examples of mismarriages (relying heavily but also expanding on Moser's work), a legal part with his own opinions, and a critical literature review at the end.

To be completed.

Quote to use: Juristenfakultät Erlangen, 1872 (in Abt 86, n2): "[die mannigfachen Klagen über einreißende Mißheiraten] ... sind lediglich Zeugnisse einer tief eingewurzelten sozialen Anschauung; völlig unkritisch und unjuristisch ist es, sie als Zeugnisse eines bestehenden rechtlichen Herkommens verwerten zu sollen"

Practice

There are two aspects to the practice: one is how families actually married, the other is what standards courts were willing to uphold.

Concerning the first aspect, I provide below a number of examples of unequal marriages that were not seen as necessarily mismarriages. As for the practice of the law, Zoepfl notes how Emperor Ferdinand I had to invoke (13 Sept. 1561) the fullness of his imperial powers in order to deprive the issue of archduke Ferdinand of Tirol and Philippine Welser of their rights, an indication that the act required a departure from normal imperial law. Abt cites the Isenburg case as a remarkable instance where the Reichskammergericht, one of the two highest courts, accepted that the children of a marriage between a count and a peasant's daughter were entitled to succeed to the title and inheritance of their father. Most court cases were taken to the other high court of the Empire, the Reichshofrat, located in Vienna, which could easily be influenced by political considerations (this is how the decision in the Baden-Durlach case in 1620 is often explained), but which nevertheless accepted with remarkable frequency unequal marriages as fully valid (Gelnhausen in 1715, Holstein-Plön in 1731).

As the Schiedsspruch of 1897 in the Lippe case notes, Moser's Staatsrecht (19:333) cites seven cases of unequal marriages among princes that were not treated as mismarriages. As for the comital families, it cites Mannsbach (1740, 37ff) and Burgermeister (Grafen- und Rittersaal III, sect. xiii).

To be completed: analysis. Notes from Zoepfl

2.4 The Electoral Capitulation of 1742 and its consequences

The year 1742 represents a turning point, because in that year the concept of unequal marriage clearly entered the statutes of the Empire, at the highest level.

First attempts at concerted action by princely houses

In 1708, on the occasion of a visit in Braunschweig by the dukes of Eisenach and Gotha, the margrave of Anspach, and the landgrave of Hesse-Cassel, these princes and their host duke Anton Ulrich of Braunschweig decided to inform the Emperor of their concern over the elevations of unequal spouses and their damaging consequences, and to propose a sort of conference of princes to decide on a common constitution in matters of marriage. This proposal went nowhere.

In 1713, Anton Ulrich, ruling duke of Saxe-Meiningen, married Philippine Cäsar, a non-noble woman (see details below); the marriage, and the two sons born of it, became public around 1716 or 1717. The dukes of Saxony and Anhalt held a conference in Braunschweig in 1717 and signed a convention, committing themselves (1) to forbid marriages below the rank of imperial count, (2) to consider such marriages as morganatic should they occur, (3-4) to refuse to treat such spouses as princesses and the issue as princes or as having any rights as long as there were princes born of equal marriages ("die aus solchen Ehen entspriessende Kinder aber gar nicht als Fürsten consideriren, noch denenselben eher die Landes-Succeßion eingestehen, als wenn keine Prinzen mehr vorhanden, so von beyderseits Fürstlichen Standesmäßigen Eltern gebohren"), (5) to assist each other in enforcing the convention, (6) to seek the emperor's approval of the convention, and (7) to use all their powers to prevent elevations of unequal spouses by the emperor. The emperor, Karl VI, declined to approve the convention, and Moser cites the direct testimony to him of the imperial vice-chancellor stating that the court in Vienna did not wish to bind its hands in the matter. Worse, the Emperor raised the spouse of Anton Ulrich to princely rank and declared their issue apt to succeed in 1727.

The imperial election of 1742

Karl VI, the last Habsburg, died in 1740. At his death, for the first time in over two centuries, there was no obvious heir. His eldest daughter Maria Theresia was married to the ex-duke of Lorraine, but even her right to inherit her father's hereditary possessions was contested, among others by the Elector of Bavaria who claimed the crown of Hungary and Bohemia. These disputes led to the War of Austrian Succession (1740-48).

Meanwhile, a new emperor had to be elected. It was customary for the emperor to sign an electoral capitulation, negotiated during the election with the electors, which bound the emperor for the duration of his reign and served as a written constitution for the Empire. In anticipation of these negotiations, a group of princes (Saxe-Gotha, Saxe-Coburg Meiningen and Saalfeld, Braunschweig, Bayreuth, Anspach, Würtemberg, Holstein-Glückstadt, Hesse-Darmstadt, Hesse-Cassel, Baden-Durlach, Vorpommern) held a convention in Offenbach on 16 Oct 1741 and proposed a clause according to which the emperor should not allow the issue of princely mismarriages to succeed, and should be prohibited from elevation of rank or "rectifying" (rectificiren) such mismarriages to the detriment of agnates or parties to succession pacts; they also specifically requested that the issue of the current marriage of Anton-Ulrich be excluded from the succession. The reigning duke of Saxe-Meiningen and the duke of Saxe-Gotha also wrote letters in December 1741 to each elector.

The electors gathered in Frankfurt (with the exception of the delegate from Bohemia, whose vote was suspended due to the succession dispute; thus excluding Maria Theresia). During their negotiations, they broached the topic of mismarriages, on January 5, 1742. Brunswick and Saxony had both presented monita proposing an insertion in art. 22 §3. Trier said it was not opposed to the insertion but reserved the definition of what a mismarriage was. Cologne expressed strong reservations, because the matter needed to be legislated upon, but proposed that the issue be raised with the Emperor by way of a collegial letter (Collegialschreiben). Bavaria opined that the matter was of great importance and that a regulation could not be made easily, therefore voted in favor of the insertion. Saxony rebutted Cologne's position. Brandenburg agreed with the substance of the monitum, but expressed misgivings about the fact that mismarriage was not defined in imperial laws. Palatinate agreed with Bavaria, but also opined in favor of the collegial letter in addition to the insertion. Brunswick agreed in substance with Saxony. Mainz voted in favor of the collegial letter. Afterwards Trier and Saxony agreed to the collegial letter, and Saxony proposed to make the insertion clearer by inserting the words "unstreitig notorische Mißheirathen" in its draft. The electoral conclusum of the same day adopted the modified wording, and the draft of a collegial letter to the emperor asking that a more precise definition of mismarriages to resolve doubtful cases be the subject of imperial legislation. (Moser 120-22).

Consequently, the electoral capitulation to which the new emperor Karl VII (formerly elector of Bavaria) agreed, contained the following clause:

Art. 22, §4: "Noch auch denen aus ohnstrittig notorischer Miß-Heurath erzeugten Kindern eines Standes des Reiches, oder aus solchem Hause entsprossenen Herrens zu Verkleinerung des Hauses die väterlichen Titul, Ehren und Würden beyzulegen, viel weniger dieselbe zum Nachtheil derer wahren Erbfolger und ohne deren besondere Einwilligung für ebenbürtig und successionsfähig zu erklären, auch wo dergleichen vorhin bereits geschehen, solches für null und nichtig anzusehen und zu achten."

According to Estor, the insertion of the words "unstreitig notorische Mißheirathen" was proposed by Saxony to mollify the ambassadors of the spiritual electors, who were uncomfortable with the idea of declaring marriages with nobles as unequal.

In 1745, after Karl VII's death, there were attempts at revising the article of the capitulation. Mainz proposed that the last words "solches für null und nichtig anzusehen und zu achten" be changed to "solches nach dem entscheiden, was die Haus-Verfassung und obhandene Verträge, oder sonstige rechtliche Umstände, mist sich bringen", in effect weakening the norm to be no stronger than the relevant house laws. Trier, Cologne and Bohemia agreed, but Bavaria, Saxony, Brandenburg, Palatinate, and Hanover preferred to keep the text unchanged. Brandenburg proposed to add words binding the Emperor to maintain the decisions made in 1744, but Trier argued that this was unnecessary and a majority concurred. (Moser 122). There was also a proposal made to define equality as nobility of 4 quarters (Pütter 290, Abt 111 n2: "Personen, wleche nicht wenigstens vier adelige Ahnen aufzuweisen haben") but it went nowhere.

The only revision to the capitulation took place in 1790, when the words "oder einer gleich anfangs eingegangenen morganatischen Heirath" were inserted after "notorischer Miß-Heurath", thus extending the enforcement from notorious mismarriages to explicitly morganatic marriages (Pütter 309-10).

Analysis of the new clause

What is the import of this clause of the electoral capitulation?

The capitulation is as close to a written constitution as the Empire ever got, but it is of a peculiar kind. Literally, the capitulation is a contract between the elected emperor and his electors, negotiated at the time of the election. It represents a set of limitations on the emperor's powers, to which he consents willingly, but to which he is bound. The custom was that, once a limitation entered into the capitation, it could not be removed (although this was only a custom, and attempts at drafting a "perpetual capitulation" never succeeded before the end of the Empire). There was a debate as to whether his powers were only those enumerated in the capitulation, or whether they were all the normal powers of a sovereign that were not restricted by the capitulation; contemporary jurists favored the latter interpretation.

At any rate, the practical effect of Art. 22, §4 is to establish a new legal norm binding on the emperor: he cannot grant to the children of a mismarriage in the upper nobility the titles, honors and dignities of their father, much less declare them to be equal and entitled to succeed to the detriment of the true heirs and without their explicit consent, and where this has already happened, such act is to be null and void (this last part was specifically aimed at the Meiningen case). But the new legal norm is not binding on all families. It protects them from violations of a standard, but does not compel them to adopt that standard for themselves.

Other aspects of the clause limit its import. One is the fact that mismarriage is not defined, and the applicability is limited to cases of notorious and indisputed mismarriages: it certainly doesn't help in deciding ambiguous or controversial cases.

Complete.

Emperor refuses to ratify inequality clauses:

When the prince of Nassau-Saarbrücken submitted for imperial confirmation his law of primogeniture which contained a clause defining equal marriage, the emperor (on Apr 25, 1769) withheld his consent from that particular clause, reserving for himself jurisdiction over the matter ("Fiat petita confirmatio constitutionis primogeniturae, jedoch mit Auschluß der im §8 enthaltenen Bestimmung einer standesmäßigen Vermählung, imgleichen des §13, in so fern sich dieser auf den obigen passum des §8 bezieht; immaßen Ihre kaiserliche Majestät sich dieserhalb begebenden Falls die allerhöchste Cognition alleine vorbehalten"; Pütter 307).

The emperor used almost exactly the same words on 23 Oct 1770 when confirming the law of primogeniture of Löwenstein of 14 Apr 1767 (Moser 130; Pütter 307): "Ihre kaiserliche Majestät haben gehorsamsten Reichshofraths allerunterthänigstes Gutachten dahin allergnädisgst resolvirt: Fiat petita confirmatio constitutionis primogeniturae, jedoch mit Auschluß der im §1 enthaltenen Bestimmung einer ebenbürtigen; immaßen Ihre kaiserliche Majestät sich dieserhalb begebenden Falls Dero alleinige allerhöchste Cognition hiermit ausdrücklich vorbehalten. This refusal would have interesting legal consequences more than a hundred years later.

Likewise the primogeniture law of the house of Erbach-Erbach of June 25, 1783, specified in its 5th paragraph that children from an unequal marriage were prohibited from ruling, using the title and arms, and were to be only considered as noble and receive a specified pension. As long as no imperial law had decided what an unequal marriage was, the descendants were prohibited from marrying with anyone below the rank of count or of a rank inconsistent with the custom and prior examples of the house. A woman of knightly but stiftsmäßig rank would not be acceptable unless approved by all agnates or, in case of objections, by the Emperor himself. The Emperor confirmed on 28 May 1784 the law, with the exception of the whole 5th paragraph. (Pütter 308-09).

Letter of the king of Prussia to Karl VII: "Wir sollen auch aus Teutschpatriotischer Gesinnung ganz unvorgreiflich dafür halten, daß Eurer kaiserlichen Majestät Reichshofrath sowohl als Reichshokcanzley pro norma regulativa bey dieser Gelegenheit ein vor alles zu bescheiden seyen, daß alle diejenigen fürstlichen Heirathen schlechterdings für ungleich zu achten, welche mit Personen unter dem alten reichsgräflichen Sitz und Stimme in comitiis habenden Stande contrahirt werden, und daß die aus solcher Ehe zu erzeugenden Kinder weder zur fürstlichen Würde, Titel und Wappen ihres Vaters, noch zur Succession in dessen Reichslande niemals fähig seyen, noch dazu gelassen werden sollen. Wo dieses geschieht, würde dem bisher fast einreißenden Uebel dadurch auf einmal gesteuert, und die kaiserliche so rühmlichst als geerchteste Beeiferung für das Lüstre der alten Teutschen fürstlichen Häuser, jetzt und bey der späten Nachkommenschaft, zu einer unverwelklichen kaiserlichen höchsten Glorie gereichen". [Pütter 287-88, complete text printed undated in Estor 339-342].

Doctrine

Pütter (1796, 537) cites an anonymous writer on the case of Nassau/Montbarrey concluding that, unless the agnates were unanimous, cases of mismarriages were decided by political whims at the court in Vienna: "hier entscheidet oft Hoflust mehr, als Recht".

Until the end of the Empire in 1806, the powers of the Emperor, even restricted by the Capitulation of 1742, remained a real constraint on the legal autonomy of the upper nobility. And, although the question of mismarriages was a hotly disputed one, the doctrine was in consensus that, for the comital and new-princely families, there was no general custom restricting equality of marriage to the upper nobility.

2.5 Marriages with foreigners

(Abt 117ff)

How would the standards of equality apply to marriages with foreigners? The question is very difficult since the German Reichsstände are an institution without parallel in the rest of Europe.

Their constitutional position (exclusive membership in a legislative body) has some similarity with that of the British peers, but not their numbers. In 1760 there were 174 peers in Great Britain, ranging from dukes to barons, and their numbers increased considerably over the next half-century (161 net additions under George III), while in the Reichstag perhaps half that number of families were represented (Germany's population being 3 to 4 times larger at the time), and additions were very limited. The French peerage (in a country with a similar or larger population) was roughly of the same size as the German upper nobility, but its constitutional role was negligible, being limited to occasional participation in the Parlement of Paris, a court of justice.

Where the German upper nobility was somewhat unique was in its power over Land und Leute (land and people), that is, its quasi-sovereignty. Members of the German upper nobility were not merely large landlords, they exercised over their territories many functions that we associate with government rather than ownership, in particular judicial and legal powers (powers to pass and enforce laws, to administer justice and ensure law and order). The German case is not absolutely unique: a number of Italian princes ruled over territories in Northern Italy that were similar to the holdings of German counts or even some princes. But, in general, any standard of equality that excluded the German lower nobility would logically exclude foreign nobility that did not hold a similar position: in effect, anyone but a member of a ruling dynasty. This was certainly the position of Pütter (1796, 465-68).

The practice, however, does not conform to this theory, and shows no general pattern. A few house laws explicitly prohibited marriages with foreigners (testament of Johann Wilhelm of Saxe-Weimar, 1573; testament of Ernst the Pious of Saxe-Gotha of 1654; law of primogeniture of Oettingern-Wallerstein of 1765). But in other families, even those with explicit standards, marriages with foreigners can be found.

In particular, Dutch heiresses played the role in the 17th and 18th c. of American heiresses in the 19th c. (Abt, 120). Examples of marriages with Dutch women (given in Abt):

1584: Margrave Jakob von Baden-Durlach (1562-90) with Elisabeth (1565-1620), daughter and heiress of count Floris van Culemborg; their daughter Anna married Wolrad von Waldeck-Eisenberg
1591: Karl von Hohenzollern-Sigmaringen (1547-1606), with the same; their daughters by both marriages married into the German upper nobility
1648: Freiherr Wilhelm Thomas von Quadt-Wykradt (d. 1670) with Maria Tork, Torck or Jurk
1674: their son Freiherr Wilhelm Bertram von Quadt-Wykradt (1652-1713) with Baroness Maria von Gent (1654-82); the mediatized house of Quadt zu Wykradt und Isny descends from both marriages
1670: Graf Georg Reinhard zu Wied-Runkel (1640-90), with Anna Trajektina (d. 1672), daughter of Johann Wohlfarth von Brederode, hereditary burgrave of Utrecht (no issue)
1703: Johann Ernst Ferdinand von Holstein-Plön (1684-1729), with Maria Coelestine (1679-1725), daughter of Claude François de Merode (no surviving issue)
1743: Heinrich IX von Reuß-Plauen (1711-80), with Amalie Esperance von Wartensleben und Flodorff (1715-87), with issue (house of Reuß-Köstritz)
1773: Hermann Friedrich von Hohenzollern-Hechingen (1748-1810), with Luise, Gräfin von Merode-Westerloo (1747-74) (one daughter)

Moser's answer to the question, what to think of a marriage with a Russian or Polish princess, or the daughter of an Italian prince, marquess or count, is rather jaded. In the old days, he says, no one would have considered such nobles to be comparable with the German upper nobility; "bey der jezigen Confusion aber ist es genug, wann der Vater gewisser massen Fürst oder Graf ist, der übrige Verhalt desselben gegen einen Teutschen Fürsten oder Grafen mag nun seyn, wie er will, und die Ahnen mögen so wunderseltsam aussehen, als sie können" (Moser 2:150).

(Pütter 465-58) XXX

2.6 The German Bund (1806-66)

In 1806 the old empire disappeared, when the Emperor relinquished his title and absolved his vassals of their obligations to him and to the old body of imperial law. The electoral capitulation, limiting as it did the imperial powers, became moot once those powers disappeared.

Between 1806 and 1815, when Germany was reorganized by the Congress of Vienna, two things happened in the upper nobility:

some of the previously immediate individuals, having lost their overlord and not gained a new one, became fully sovereign in international law;
others, by virtue of various treaties and events between 1806 and 1815, became subjected to one of those new sovereigns: they were mediatized. But they retained a special position in German law until 1918.

Sovereign families

Those that became fully sovereign formed the German Confederation (deutsches Bund), a confederation of sovereign entities with common institutions. The newly sovereign dynasties became free to adopt whatever rules they wished to govern themselves and their succession, and almost all of them did. Also, while under the Empire the members of these dynasties were immediate subjects of the Emperor and answerable only to his courts, they now all found themselves under the legal authority of their head of house: thus, their behavior could be and increasingly was explicitly regulated by house laws, in particular placing limits on their ability to marry.

In parallel, a process of "constitutionalization" took place: more or less rapidly, the various German monarchies granted or were compelled by events to grant constitutions and limit their powers. In some cases, this restricted their powers to change succession rules, but only to the extent that the constitutions explicitly imposed such restrictions (by requiring the consent of parliament, for example).

The surviving states numbered 35 (to which were added 4 former imperial cities).

Non-sovereign families

From the end of the empire to the Vienna Congress (1806-1815)

By the Rheinbundsakte of July 12, 1806, a group of German states consisting in Bavaria, Wurttemberg, Baden, Hesse-Darmstadt, Nassau and a few others, seceded from the German Empire. Article 24 specified a long list of domains, hitherto the properties of various princes and counts who were states of the Empire, henceforth to be ruled by the members of the new Confederation. These 72 princes and counts were "mediatized" (the old German term was "eximiert"; the word "mediatize" appears in French and English about the same time, in 1815).

The process of mediatization was not unknown. It was called "exemption" (from the obligations to the Empire). There were also cases of partial mediatization, in which the territories of a family were partly or wholly placed under the sovereignty of another state, but the family nevertheless retained its seat and vote at the Reichstag: Giech (subjected to Prussia 1791), Stolberg-Wernigerode (sovereignty shared with Prussia, 1714), Stolberg-Stolberg and Stolberg-Roßla (1730-38 partial subjection to Saxony), Schönburg (subjected to Saxony, 4 May 1740), Ortenburg (ceded its county to Bavaria, 1805), counts Fugger (to Bavaria, 7 June 1806).

Refer to the page on mediatization.

A few weeks later, on August 6, 1806, the German Emperor relinquished his title and dignity, and absolved all his subjects from their obligations under the old Empire, leaving all other former states at the mercy of political events. No rights were guaranteed to the mediatized princes. Not before 1815 was their status defined.

An important feature of the 1806-15 period was the introduction of the Napoleonic code in several German regions (grand-duchy of Berg and Cleves, kingdom of Westphalia, the regions annexed to France in December 1810, and Nassau). Since the Napoleonic code did not recognize mismarriages, this would have legal consequences (see the Salm case).

The Bundesakt of June 8, 1815, a document that became part of the final act of the Congress of Vienna, founded the German confederation. In that act, the mediatized families finally obtained recognition, in article 14.

Art. XIV. Um den im Jahr 1806 und seitdem mittelbar gewordenen ehemaligen Reichsständen und Reichsangehörigen in Gemäßheit der gegenwärtigen Verhältnisse in allen Bundesstaaten einen gleichförmig bleibenden Rechtszustand zu verschaffen, so vereinigen die Bundesstaaten sich dahin:

daß diese fürstlichen und gräflichen Häuser fortan nichts desto weniger zu dem hohen Adel in Deutschland gerechnet werden, und ihnen das Recht der Ebenbürtigkeit, in dem bisher damit verbundenen Begriff verbleibt;

sind die Häupter dieser Häuser die ersten Standesherren in dem Staate zu dem sie gehören; - Sie und ihre Familien bilden die privilegirteste Classe in demselben, insbesondere in Ansehung der Besteuerung;

es sollen ihnen überhaupt in Rücksicht. ihrer Personen, Familien und Besitzungen alle diejenigen Rechte und Vorzüge zugesichert werden oder bleiben, welche aus ihrem Eigenthum und dessen ungestörten Genusse herrühren, und nicht zu der Staatsgewalt und den höhern Regierungsrechten gehörenn. Unter vorerwähnten Rechten sind insbesondere und namentlich begriffen:

die unbeschränkte Freiheit ihren Aufenthalt in jedem zu dem Bunde gehörenden, oder mit demselben im Frieden lebenden Staat zu nehmen;

werden nach den Grundsätzen der früheren deutschen Verfassung die noch bestehenden Familienverträge aufrecht erhalten, und ihnen die Befugniß zugesichert über ihre Güter und Familienverhältnisse verbindliche Verfügungen zu treffen, welche jedoch dem Souverain vorgelegt und bei den höchsten Landesstellen zur allgemeinen Kenntniß und Nachachtung gebracht werden müssen. Alle bisher dagegen erlassenen Verordnungen sollen für künftige Fälle nicht weiter anwendbar seyn;

privilegirter Gerichtsstand und Befreiung von aller Militärpflichtigkeit für sich und ihre Familien.

die Ausübung der bürgerlichen und peinlichen Gerechtigkeitspflege in erster, und wo die Besitzung groß genug ist in zweiter Instanz, der Forstgerichtsbarkeit, Ortspolizei und Aufsicht in Kirchen- und Schulsachen, auch über milde Stiftungen, jedoch nach Vorschrift der Landesgesetze, welchen sie, so wie der Militärverfassung und der Oberaufsicht der Regierungen über jene Zuständigkeiten unterworfen bleiben.

Bei der näheren Bestimmung der angeführten Befugnisse sowohl, wie überhaupt und in allen übrigen Puncten wird zur weitern Begründung und Feststellung eines in allen deutschen Bundesstaaten übereinstimmenden Rechtszustandes der mittelbar gewordenen Fürsten, Grafen und Herren die in dem Betreff erlassene Königlich Baierische Verordnung vom Jahr 1807 als Basis und Norm unterlegt werden.
Dem ehemaligen Reichsadel werden die sub Nr. 1 und 2 angeführten Rechte, Antheil der Begüterten an Landstandschaft, Patrimonial- und Forstgerichtsbarkeit, Ortspolizei, Kirchenpatronat und der privilegirte Gerichtsstand zugesichert. Diese Rechte werden jedoch nur nach der Vorschrift der Landesgesetze ausgeübt.
In den durch den Frieden von Lüneville vom 9. Februar 1801 von Deutschland abgetretenen und jetzt wieder damit vereinigten Provinzen werden bei Anwendung der obigen Grundsätze auf den ehemaligen unmittelbaren Reichsadel diejenigen Beschränkungen statt finden, welche die dort bestehenden besondern Verhältnisse nothwendig machen.

Article 14 did several things:

it defined in law (and in international law, under the guarantee of the Great Powers) a status for the upper nobility that had not attained sovereignty. Until that point, their status had been wholly dependent on the laws of each sovereign state where they resided or had their properties
it guaranteed their status as ebenbürtig with the sovereign families (and with each other). This guarantee did not alter in any way the concept of equality, in fact it explicitly refers to the concept as it existed "bisher", until then. Thus this clause did not restrict equality to the upper nobility, which would have been a modification of the concept. It did prevent the sovereign families from henceforth excluding the upper nobility from its marriages (as Württemberg had done with its house law of 1808).
it established their autonomy in family matters (clause c2), based on the principles of the German constitution of pre-1806. This meant that they could continue to establish house laws, subject only to a notification requirement to (but not assent of) the local sovereign.

The Standesherren after 1815

Gollwitzer (1957) uses the term Standesherren.

Article 14 gave rights to the former states of the Empire who had become mediatized in 1806 and later ("die im Jahr 1806 und seitdem mittelbar gewordenen ehemaligen Reichsständen "); it did not list them. Furthermore, the privileges and guarantees were fairly explicit, but had to be implemented in local law by each member of the Confederation. Thus, it was up to the member states to decide which were the mediatized families and what to do with them, subject eventually to appeals to the Diet of the Confederation (Bundessammlung).

In the event, each member state provided a list of the mediatized families among its subjects. Refer back to the page on mediatization.

2.7 The North-German Confederation and the German Empire (1867-1918)

The German Confederation ceased to exist (formally on 24 Aug 1866) as a result of the Austro-Prussian War of 1866. At that time, the number of members of the Confederation had fallen from 35 to 28 (plus the 4 cities) as a result of four extinctions (Saxe-Coburg, Anhalt-Bernburg, Anhalt-Cöthen, Hesse-Homburg), one annexation (Holstein) and two renunciations (the Hohenzollern principalities). During the war Prussia annexed 3 states (Hanover, electoral Hesse, Nassau) and the city of Frankfurt. Of the remaining 23 states + 3 cities Prussia formed an alliance (18 Aug 1866) with 14 states + 3 cities, enlarged by the end of 1866 to 20 + 3 cities, to form the North German Confederation (April 1867; began functioning in July 1867). (Hesse-Darmstadt joined only for the part of its territory north of the Main). The 3 south German states (Baden, Württemberg, Bavaria) and the rest of Hesse-Darmstadt joined in 1870, to form the German Empire. Three states never joined: Liechtenstein, Austria, Luxemburg.

This resulted in important changes for mediatized families. The guarantees of article 14 of the Bundes-Akte were now obsolete, since the Confederation had ceased to exist. The constituent states ceased to be bound by that article 14. Furthermore, whereas the German Bund was a very loose confederation of sovereign states with no overall coercive authority, the constitution of 1867 introduced federal institutions: executive, legislative and judiciary.

The German Parliament, by legislation, could and did bring about some changes:

the Judicature Act of 1879 created a supreme court for all of Germany, the Reichsgericht to which cases could be remitted for questions of law (cassation or revision). From 1880 to 1918 (and even later) the Reichsgericht ruled on cases involving mismarriages and morganatic marriages, some of which are presented here.
a uniform code of civil law (Bürgerliches Gesetzbuch, or BGB) was introduced in 1900, which superseded local law. However, an implementation law (Einführungsgesetz) made important reservations.

Finally, the new institutions offered a potential for resolution of disputes over successions in states. This was demonstrated by the Lippe case. In 1895, the last of the senior Lippe-Detmold line became prince, but was insane. There followed a dispute for the regency and the eventual rights of succession between various Lippe branches (Lippe-Biesterfeld. Lippe-Weissenfeld, and Schaumburg-Lippe), which centered in part on the equality of a particular marriage in the Biesterfeld line. An arbitration court was created by a resolution of the Bundesrat, a federal institution that claimed jurisdiction over what it considered a conflict between member states. The court was composed in large part of judges of the Reichsgericht, whose decisions in 1905 definitively settled the dispute.

The new civil code (1900)

The unification of civil law throughout Germany was facilitated by the fact that Roman law had long permeated German civil law irrespective of Germany's political fragmentation. The task was completed with the adoption of the bürgerliches Gesetzbuch (BGB) in 1896, which came into force on Jan 1, 1900. The code was adopted along with an "introductory law" (Einführungsgesetz) which made special arrangements; with respect to the upper nobility, the relevant part is articles 57 and 58 (Achilles-Greiff, BGB, 21.st edition, p. 1168):

Art. 57. In Ansehung der Landesherren und der Mitglieder der landesherrlichen Familien sowie der Mitglieder der Fürstlichen Familie Hohenzollern finden die Vorschriften des Bürgerlichen Gesetzbuchs nur insoweit Anwendung, als nicht besondere Vorschriften der Hausverfassungen oder der Landesgesetze abweichende Bestimmungen enthalten. Das gleiche gilt in Ansehung der Mitglieder der vormaligen Hannoverschen Königshauses, des vormaligen Kurhessischen und des vormaligen Herzoglich Nassauischen Fürstenhauses.

Art. 57. With respect to sovereigns and members of sovereign families as well as members of the princely family of Hohenzollern, the rules of the BGB apply only insofar as the house laws and local laws do not contain contradictory dispositions. The same applies to members of the former royal house of Hanover, the former electoral house of Hesse and the former ducal house of Nassau. [note: this was extended to the ducal house of Holstein by imperial law of 25 March 1904.]

Art. 58. In Ansehung der Familienverhältnisse und der Güter derjenigen Häusern welche vormals reichsständisch gewesen und seit 1806 mittelbar geworden sind oder welche diesen Häusern bezüglich der Familienverhältnisse und der Güter durch Beschluß der vormaligen deutschen Bundesversammlung oder vor dem Inkrafttreten des Bürgerlichen Gesetzbuchs durch Landesgesetz gleichgestellt worden sind, bleiben die Vorschriften der Landesgesetze und nach Maßgabe der Landesgesetze die Vorschriften der Hausverfassungen unberührt. Das gleiche gilt zugunsten des vormaligen Reichsadels und derjenigen Familien der landsässigen Adels, welche vor dem Inkrafttreten des Bürgerlichen Gesetzbuchs dem vormaligen Reichsadel durch Landesgesetz gleichgestellt worden sind.

Art. 58. With respect to the family relations and estates of those houses that were states of the Empire and have been mediatized since 1806, or those that have been given the same status with respect to their family relations and estates by decision of the former German Federal Assembly or by local laws passed before the coming into force of the BGB, the dispositions of local laws and, pursuant to local laws, those of the house laws, remain unaltered. The same is true of the former imperial nobility and those families of the local nobility that have been given the same status by local laws before the coming into force of the BGB.

Note that article 58 offered the mediatized and imperial nobility a more limited preservation of their particular law. In particular, the house laws of mediatized families were no subjected to local laws: they lost the autonomy which the Bundes-Akte had preserved.

The jurisprudence decided that the protection of house laws and local laws from the rules of the BGB also extended to the general German princely law. In other words, was exempted from the BGB:

anything in the existing body of private law that applied to sovereign houses (art. 57),
that part of the body of private law that concerned the family relations and estates of mediatized houses and assimilated (art. 58), and of former imperial nobility and assimilated (art. 58; particularly relevant for Württemberg).

As a consequence, the institution of mismarriage (and of morganatic marriage) were preserved from the general "abolition by omission", but only for members of those categories.

However, the purpose of the Einführungsgesetz was only to preserve the status quo; nothing in it protected house laws from changes brought about within local law. This was decided on 8 Jul 1924 by the Reichsgericht when it threw out a suit brought by Sizzo von Schwarzburg-Rudolstadt, who denied that the then-reigning prince Günther of Schwarzburg-Sondershausen had the power to abolish, as he did by law of Nov 22 1918, right before abdicating, the family entail (fideicommis) and transfer the princely estates to the Free State of Schwarzburg, and its successor in 1923, the state of Thuringia (Entscheidungen des Reichsgerichts, Civilsachen 109:11).

2.8 After 1919

Articles 57 and 58 were never formally abolished at the national or federal level, but were abolished at the Land level. That is because the 1919 Weimar constitution's article 109 par. III, 1st sentence, gave a mandate for passing laws abolishing legal inequalities based on birth or status, but did not itself abolish them ("Öffentlich-rechtliche Vorrechte oder Nachteile der Geburt oder des Standes sind aufzuheben", privileges and disadvantages in public law based on birth or estate are to be abolished).

This abolition was done in whole or part:

in Prussia by the law of 23 June 1920, §1 (Preußische Gesetzsammlung 1920, nr. 32, p. 367):

in Bavaria by the constitution of 14 Aug 1919 §15 ("Alle Bayern sind vor dem Gesetze gleich", all Bavarians are equal before the law) and the law of 28 March 1919 which abolished fideicommis or entails (Bereinigte Sammlung des bayerischen Landesrechts, 1802-1956 vol. 3, p. 118).
in Saxony by the constitution of 1 Nov 1920 §51 which abolished the special rights of the houses of Schönburg and Solms-Wildenfels
in Mecklenburg-Schwerin by law of 17 May 1920, §25 which abolished the privileges of the nobility
in Baden by the constitution of 21 March 1919 § 66 which abolished the entails of the grand-ducal and mediatized houses

In this connection there is an interesting ruling of the Reichsgericht of Nov. 17, 1921 (Entscheidungen des Reichsgerichts, Zivilsachen 103:190). Wilhelm, prince of Löwenstein-Wertheim-Freudenberg (1817-87) married Clara von Schönburg and, after her death, Bertha Hagen, who was made baroness of Grünau in Baden. After the adoption of the Weimar constitution, the two children by the second marriage, Curt and Werner von Grünau, sued their half-brother prince Ernst zu Löwenstein-Wertheim-Freudenberg for the right to bear the name of Löwenstein-Wertheim-Freudenberg. The suit was rejected by the courts in Berlin in first instance and on appeal, confirmed by the supreme court. The courts found that the clause of the Weimar constitution did not, in of itself, abolish privileges or disadvantages, that the Prussian law of 23 June 1920 did not apply to the house of Löwenstein because that house was not subject to Prussian law, and that the Länder in whose it could be considered (Bavaria, Württemberg, Baden) had not passed any laws retroactively abolishing privileges and disadvantages (as would be required to give the princely name to individuals born before 1919; note that, as far as I can tell, there is nothing retroactive in the Prussian law of 1920 anyway: see §22 of that law on names of former nobles). The courts also rejected the argument that the second sentence of the constitution's article 109 par. III on titles could have any retroactive application.

Discussion.

General rules about equality in the 19th c.

Consent of head of house superseding equality requirement.

Sovereign families

What follows is a summary of the provisions regarding equal marriages among the 35 dynasties of the German Confederation. Note that the phrase "equality required" means that legitimate birth from an equal marriage was a necessary condition to be able to succeed to the throne (Successionsfähigkeit). For the complete texts, see my page on German succession laws.

State	Constitution	House law	Observance
Austria (left 1866)
Prussia	1850 succession according to house laws: "Die Krone ist, den Königlichen Hausgesetzen gemäß, erblich [...]"	no single document
Saxony	1831 equality required (Tit. I, § 6)	1837 equality required for membership in the house (title I § 1)
Bavaria	1808 requirements delegated to house law (title II § 4) 1818 equality required (title II § 3)	1819 (first version 1816) equality required for membership in the house (title I § 1)
Hannover (annexed 1866)	1840 equality required (chap. 1, § 12)	1831 consent cannot be refused without reasons for equal marriage 1836 equality required for membership in the house; equality defined: "Mitgliedern eines anderen souverainen Hauses, oder aber mit ebenbürtigen Mitgliedern solcher Häuser, welche laut Art. 14 der deutschen BundesAkte den Souverains ebenbürtig ist" (chap. III § 2)
Württemberg	1819 equality required (Chap. 2 § 8)	1828 equality required for membership in the house; consent cannot be refused without reasons for equal marriage
Baden	1818 orders the succession according to the house law	1817 requires equal marriages for transmission in female line only
Electoral Hesse (annexed 1866)	1831 equality required (Tit. I, § 3)
Grand-ducal Hesse (Darmstadt)	1820 equality required (Tit. I, § 5)
Holstein (ruled by the king of Denmark; annexed 1864)
Luxemburg (ruled by the king of the Netherlands; left 1866)
Brunswick (under Prussian administration 1884-1913)	1832 equality required (chap. I § 14)	1836 equality defined (same law as Hanover)
Mecklenburg-Schwerin	(1755) silent	1821 equality required (art. 6)	altfürstlich
Nassau (annexed 1866)	1814 ?
Saxe-Weimar	1816/1850 silent
Saxe-Gotha (extinct 1825)	1818 ?
Saxe-Coburg-Saalfeld (Saxe-Coburg-Gotha after 1826)	1821/1852 equality required (sect. 1, § 6)	1855 equality defined: "Fürstliche oder gut Gräfliche Häuser"
Saxe-Coburg-Meiningen (Saxe-Meiningen after 1826)	1829 succession according to the house law of 1802 and the standards of the ducal, grand-ducal and royal houses of Saxony (Tit. 1, § 3)	law of 9 Mar 1896
Saxe-Hildburgshausen (Saxe-Altenburg after 1826)	1831 succession according to the house law of 1702 and 1705 (Tit. 1, § 13)
Mecklenburg-Strelitz	(1755) silent	no house laws; testaments of 1841 and 1851, unpublished
Oldenburg	1852 equality requirement introduced explicitly by amendment of 1904	1872, revised 1904 equality defined: "Mitgliedern eines anderen christlichen souverainen Hauses, oder mit Mitgliedern solcher Häuser, welchen nach Art. 14 der deutschen Bundesakte das Recht der Ebenbürtigkeit zusteht"
Anhalt-Dessau (Anhalt-Dessau-Cöthen after 1853)	1859 silent
Anhalt-Bernburg (extinct 1863)	1850 ?
Anhalt-Cöthen (extinct 1847)	?
Schwarzburg-Sondershausen	1857 silent on equality; explicit requirement introduced by amendment of 1896
Schwarzburg-Rudolstadt	1854 silent on the succession amendment of 1896 identical to S-Sondershausen
Hohenzollern-Hechingen (sovereign until 1849; extinct 1869)	?	24 Jan 1821 equality defined: "aus dem alten hohen Adel oder aus einer dem Grafenstande gleich geachteten Familie" (Kap. III, §2)
Hohenzollern-Siegmaringen (sovereign until 1849)	1833 equality required (Tit. I § 5)
Liechtenstein (left 1866)
Waldeck-Pyrmont	1852 succession according to house laws: "Die übrigen Verhältnisse des Fürstlichen Hauses ordnen die Hausgesetze."	22 Sep 1857 equality defined: members of other sovereign houses or of families equal by virtue of Confederation laws (tit. II, §7)
Reuß senior	1867 succession according to house laws: "den Reußischen Haus- und Familienverträgen gemäß"	10 Nov 1844 consent cannot be refused for marriage to members of the confederation or families equal by virtue of art. 14. see also law of 1893 (in Schmidt: die Reußen. 1903)
Reuß junior (Reuß-Lobenstein extinct 1824, Reuß-Ebersdorf renounces 1848)	1852 succession according to house laws: "den Hausgesetzen gemäß"
Schaumburg-Lippe	1868 succession according to house laws: "Im übrigen werden die Verhältnisse des Fürstenhauses durch Hausgesetze geregelt."
Lippe (Detmold)	1836 silent	declaration 10 Mai 1853 requires consent of head of house
Hesse-Homburg (admitted 1817, with vote 1838; extinct 1866)	1850/1852 ?

Mediatized families

Abt's work is the only one to seriously enquire into the actual house laws and practices of the mediatized families. A table listing the equality requirements for 88 out of 108 existing families is provided here. The summary statistics are as follows:

no house law

no requirement

requirements:

5	upper nobility
5	comital nobility
5	stiftsmäßig
10	Ahnenprobe
8	old nobility
8	simple nobility
9	standesmäßig or prohibition against "geringer Stand" (undefined)

no response (probably no laws)

refused to respond

In Abt's opinion, an undefined equality requirement can only be intrepreted as the general common law. He cites the case of the Löwenstein house law of 1737 that required undefined equality and was approved by the Emperor, but the strengthened requirement of 1767 to princely or old-comital families submitted by the same family was rejected by the Emperor, implying that the former requirement could not mean upper nobility.

Abt's interpretation of the common law is that marriages with non-nobles are the only ones that are clearly unequal, and that neither the practice or the house laws of the upper nobility allow one to deduce a stronger requirement. He notes that a decision of the general assembly of the Union of the German Standesherren (Verein der deutschen Standesherren) of 24 Feb 1899 declared as equal marriages with families noble since 1582. Ad hoc ennoblement was obviously not valid for the purposes of meeting a nobility requirement.

To be complete, Abt's analysis should include the actual practice, particularly for those families without written house laws. The problem, of course, is that one only observes allowed marriages, and it is much harder to know which marriages were considered but discouraged or forbidden. Thus, analyzing the practice through genealogical tables only give a maximal standard (one that is sure to be at least as strict, possibly stricter, than the true standard of the family).

3. Examples of unequal marriages and mismarriages

The following examples are mostly drawn from Moser's Familien-Staatsrecht and Pütter's (1796) book, which means that some particulars are probably incomplete or perhaps incorrect. Where possible I have completed with more recent sources (including Siebmacher's volume on Reichsfürsten). I have used Miroslav Marek's site for many biographical details. I am currently checking each marriage using L'Allemagne Dynastique (vols. 1 and 3 done).

I have divided the examples between unequal marriages/mismarriages on one hand, morganatic marriages on the other hand. Those marriages falling in the second category are cases where the persons contracting the marriage themselves took actions or made arrangements concerning rank, status, and rights of spouse and issue. The first category is a listing of various marriages that could be classified as unequal, some of which were mismarriages and some of which weren't.

Early cases (13th-14th c.)
Anhalt
Austria
Baden
Brunswick
Hesse
Holstein
Hohenzollern
Nassau
Ostfriesland
Palatinate & Bavaria (Wittelsbach)
Saxony (Wettin)
Württemberg
Bentheim
Fürstenberg
Isenburg
Podiebrad
Lippe
Öttingen
Waldburg
Miscellaneous examples (comital families)
19th century examples
19th century court cases
The Lippe succession

Early cases (13th c.)

Pütter (1796, 30) admits that the early examples are obscure and poorly documented.

The earliest case he finds is in the Chronicon Weingartensis that of Ethico, brother of Conrad bishop of Constance, who died unmarried but leaving a daughter by a ministerial concubine. She was emancipated by Ethico's brother Rudolf, endowed with a dowry and married to a nobleman, from which several families were issued; but the chronicler does not say that these families were noble themselves. Lambrecht of Aschaffenburg wrote of Otto (d. 1067), brother of Wihelm margrave of Meissen, that he was "matrimonio impari, matre scilicet Slavica natus" and raised in Bohemia. but at the death of his brother in 1062 he returned to Saxony to claim his inheritance and was accepted because of his personal qualities. Neither story is a particularly clear precedent of any kind.

In the 13th c. we have slightly clearer examples.

Heinrich "the illustrious", margrave of Meissen and landgrave of Thuringen (1218-88), had a third marriage in 1267 or 1268 with Elisabeth von Maltitz, the daughter of a ministerial. She received a diploma from Emperor Rudolf in 1278 which emancipated her "ab omni servilis vel ministerialis conditionis respectu" and allowed her children to inherit as "ingenuos" or nobles (the full text is in Pütter 1796, 35 note c). After Heinrich's death his issue by his first marriage with Konstanze of Austria, namely, his son Albrecht and his grandson Friedrich, shared the margraviate. His one child by his 3d marriage, Friedrich "der Kleine" (1273-1316) inherited only Dresden (at that time a rather insignificant estate), and was never considered a margrave (he called himself "dominus de Dresden"; his mother, as widow, called herself "Nos Elisabeth illustris domini Henrici Misnensis et orientalis marchionis relicta"). [Pütter 1796, 34-39]

Albrecht "the degenerate" (c1240-1314), margrave of Meissen, while married had by Kunigunde von Eisenberg (of a noble family) a son Albrecht; after his first wife's death in 1270 he married Kunigunde, thus legitimating his son Albrecht, whom he treated as margrave, in spite of the opposition of the land's estates. The son Apitz died in 1299 during the lifetime of his father, however, and the question of his ability to succeed never arose.

The first example of elevation of a spouse comes in 1393, in the case of Johann [Hans] von Habsburg who married Agnes [Nezen] von Landenberg, who was not noble. He asked the emperor to ennoble his children, and the emperor did so [Pütter 1796, 50-51]. They had only two daughters, one of which, Ursula, married count Rudolf von Sulz and brought him the lordships of Rotenberg and Krenkingen, and the county of Klettgau; the county of Laufenburg returned to the Habsburg agnates.

Emancipations of ministerials

Reinhard von Hanau married Adelheit von Münzenberg, the daughter of a ministerial: a diploma of Emperor Rudolph I in 1273 declared her free and any children of this marriage to be "nobiles et ingenuos de utroque parente". Another diploma of 1287 for their son Rudolf reiterated this. The comital family of Hanau is descended from this marriage. Adelheid's great-niece Isengard von Falkenstein, daughter of the ministerial Werner and the countess Mechtild von Dietz, married Siegfried von Eppstein and had a son Gottfried. In 1298, she and her son received a similar diploma, placing them among the ranks of the free and barons as if born of a free mother ("inter liberos et barones, quasi de libero geniti ventre"; cited in Dungern 1906, 163). In 1331, emperor Ludwig IV gave count Philipp von Spanheim, whose mother was Kunigunde von Bolanden, a ministerial, all the rights and privileges of freedom as his predecessors had enjoyed them. The latest such emancipation, according to Dungern (1906), was for Anna von Waldburg (d. 1429) who remarried with Stephan von Gundelfingen (d. 1428). She was a member of the Waldburg family which eventually became a state of the Empire, but had ministerial
origins. The fact that her paternal grandmother was a duchess of Teck, her maternal grandfather a Habsburg and her maternal grandmother a Werd shows that (1) even the most noble families intermarried with ministerials, and (2) these emancipations have nothing to do with "curing" mismarriages, nor do they prove anything about the existence of equality standards at the time.

Anhalt

After the death in 1586 of Joachim Ernst, who held all the lands of the house of Anhalt, his children divided the lands and the house split in 1606/1611 into the branches of Dessau, Bernburg, Plötzkau (later Köthen), Köthen and Zerbst. All branches present examples of unequal marriages, several of which were nevertheless dynastic.

Dessau

Georg Aribert (1606-43), younger son of the founder of the Dessau line, ruled jointly with his elder brother Johann Casimir until a partition treaty of Jan 28, 1632 left him in the possession of a few places: Wörlitz, Kleutsch and Radegast. That same year, he decided to marry Johanna Elisabeth von Krosigk, daughter of Christoph von Krosigk, "Cammerrath, Marschall und Hauptmann in Diensten" at the court of Johann Casimir. The decision created many difficulties with his relatives and ended with a contract of 10 Feb 1637 making the marriage morganatic.

The contract gave the prince's wife all the rights of a legitimate spouse, but maintained her in her rank as member of the old nobility, without raising her to the rank of princely, comital or barionial nobility. The prince promised not to ask the emperor to raise her status. The children of the marriage were to be nobles only, and bear the name of von Aribert; they were denied any rights to princely status, name, title or arms. They were excluded from the succession to Anhalt, and were assigned certain estates as well as a rent of 45,000 Thaler. The Estates (Landstände) of Anhalt-Dessau confirmed the contract the next day and promised never to recognize anyone excluded by the contract as prince. The emperor also confirmed the contract on Sep 1, 1637.

Nevertheless, after the father's death in 1643, the only son of that marriage, Christian Aribert, wrote in 1660 to his cousin Johann Georg (son of Johann Casimir) to dispute the validity of the contract and claim the rank of prince of Anhalt. The emperor issued a rescript to the princes of Anhalt in 1661 where he claimed that he wanted to uphold the contract but could not deny justice to Christian Aribert. In the end, the duke Ernst of Saxe-Gotha offered his mediation, and an agreement was reached on Feb 6, 1671 with the princes of Anhalt. The agreement gave Christian Aribert the title of "Graf von Bähringen, Herr zu Waldersee und Radegast", and allowed him to style himself "legitimate and only son of Prince Georg Aribert of Anhalt". As arms he was allowed the bear of Anhalt impaling Waldersee. No opposition would be made to his elevation to the rank of prince, as long as it was not that of prince of Anhalt. In case of extinction of the whole house of Anhalt in all male lines, they also had no opposition to him or his male-line legitimate heirs making a claim to the principality of Anhalt. He died unmarried on Jul 14, 1677 in Koblenz. His sister Eleonore (d. 1677) married in 1675 Johann Georg zu Solms-Baruth and Sophie married in 1682 Gebhard Siegfrid Edle Herr von Plotho (d. 1683). [Pütter 143-150]

Leopold I of Anhalt-Dessau (1676-1747) succeeded his father Johann Georg II in Dessau in 1693 under the regency of his mother. He had fallen in love withAnna Luise Föse [Fösen] (22 March 1677-5 Feb 1744), the daughter of an apothecary. His mother tried to break up the relation, sending her son abroad for extended travel, to no avail. He came of age in 1697 and the following year, married his beloved, on 8 Sep 1698 ; she was made a princess of Anhalt by the Emperor on 29 Dec 1701 who also declared that their children would be considered princes and princesses of Anhalt ("für rechtgebohrne aus beiderseits gleichbürtiger Abkunft herstammende Fürsten und Fürstinnen zu Anhalt") and would enjoy all the rights that other princes of the Empire enjoy. The king of Prussia extended his personal guarantee on 12 March 1702, promising to recognize the rights of the issue of this marriage. The agnates also gave their agreement a few days later, on 21 Mar 1702, and agreed to extend to the issue of that marriage the terms of the family compact made with his father on 4 June 1687. From this marriage descends the still extant line of Anhalt-Dessau (Anhalt since 1863). [Pütter 186-89]

His eldest son Wilhelm Gustav (1699-1737), hereditary prince, married secretly on 14 Mar 1726 Johanna Sophia Herr [Herre, Herrin]. She lived in Kleckewitz and bore him four sons and two daughters. In 1737, during her ninth pregnancy, he came down with smallpox and, wanting to see her, he had her and his eldest son brought to Dessau, revealed the secret to his father, and entrusted their care to him. Prince Leopold raised the eldest son at his court and gave a secret pension to the widow and her other children in Kleckewitz. Leopold was succeeded by his younger son Leopold Max who gave his brother's widow a house in Dessau and obtained from the empero

Unequal and Morganatic Marriages in German Law

Contents

Introduction

Rules on marriages in European royalty

Estates and nobility in Germany

Upper nobility (Hochadel) in the Middle Ages

State of the Empire (Reichsstand)

Imperial knighthood (Reichsritterschaft)

Lower nobility (Niederadel)

Equal and Unequal

1. Unequal marriages and morganatic marriages

1.1 Definitions

1.2 What is the difference?

1.3 Does the difference matter in practice?

1.4 When is an unequal marriage a mismarriage?

2. Historical Development

2.1 Medieval law

2.2 House laws (15th-17th c.)

2.3 Common law until 1742

Doctrine

Moser vs. Pütter

Practice

2.4 The Electoral Capitulation of 1742 and its consequences

First attempts at concerted action by princely houses

The imperial election of 1742

Analysis of the new clause

Doctrine

2.5 Marriages with foreigners

2.6 The German Bund (1806-66)

Sovereign families

Non-sovereign families

From the end of the empire to the Vienna Congress (1806-1815)

The Standesherren after 1815

2.7 The North-German Confederation and the German Empire (1867-1918)

The new civil code (1900)

2.8 After 1919

General rules about equality in the 19th c.

Sovereign families

Mediatized families

3. Examples of unequal marriages and mismarriages

Table of contents

Early cases (13th c.)

Emancipations of ministerials

Anhalt

Dessau