Unequal and Morganatic Marriages in German Law

First published May 2004. Still under construction.

Contents

Introduction

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

  1. families that were part of the Diet in 1582 : the "old princely" and "old comital" (altfürstliche, altgräfliche) families
  2. families who were admitted to the Diet between 1582 and 1803:  the "new princely" (neufürstliche) and "new comital" (neugräfliche) families
  3. 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:
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:
  1. immediate status (Reichsunmittelbarkeit),
  2. sovereignty over a territory (Landeshoheit),
  3. 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.
"Unstandesmässig ist eine jede Ehe, bei welcher die Ehegatten nicht von gleichem Geburtsstande sind" (Zoepfl 1863, 1:609)
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.
"Unter Missheirat versteht man insbesondere eine unstandesmässige Ehe, welche wegen Standesungleichheit der Ehegatten von Rechtswegen (sei es zufolge eines Staats- oder Hausgesetzes, allgemein oder Familienherkommens) keine volle Rechtswirkung für den standesniederen Ehegatten und die aus solcher Ehe erzeugten Kinder haben kann [...]" (Zoepfl, ibid.)

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.
"Unter morganatischer Ehe versteht man eine Ehe, bei deren Eingebung in den Ehepakten festgesetzt wird, dass die Gemahlin und Kinder an dem Range und Stande des Gemahls und Vaters keinen Antheil nehmen, und letztere auch keine Successionsrechte in die Regierung und die damit zusammenhängenden Stamm-, Lehen- und Fideicommissgüter [...] des regierenden Hauses haben sollen." (Zoepfl, ibid. p. 636)
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:

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

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:

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:
  1. house laws: treaties, compacts, testaments, contracts of the house;
  2. actual practice in the house, to the extent that it is consistent and unambiguous, and
  3. 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:
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):
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):

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:

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:
  1. 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;
  2. 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;
  3. 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:
    1. die unbeschränkte Freiheit ihren Aufenthalt in jedem zu dem Bunde gehörenden, oder mit demselben im Frieden lebenden Staat zu nehmen;
    2. 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;
    3. privilegirter Gerichtsstand und Befreiung von aller Militärpflichtigkeit für sich und ihre Familien.
    4. 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:

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:

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:

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 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:

38
 no house law
2
 no requirement
50
 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)

7
 no response (probably no laws)
13
 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.

Table of contents

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 emperor the title ofGrafen von Anhalt on 19 Sep 1749, without any succession rights (The line became extinct in 1823).  [Pütter 259-60]

Bernburg

In his testament of 1714, Victor Amadeus prince of Anhalt-Bernburg (1634-1718) recommended to his two sons (the eldest then a widower, the younger remarried) that they remarry with equal spouses in the following terms (Moser):
"Dafern auch Unser ältester Sohn, Prinz Carl Friedrich, Fürst zu Anhalt etc. bey seinem jezigen Fürstlichen Wittwerstand zu anderweiter Vermählung sich revolviren, oder Unser jüngster Sohn, Prinz Lebrecht Fürst zu Anhalt, wider Verhoffen, zum zweytenmal auch in den Wittwerstand gesezet würde, und zur dritten Ehe schreiten solle; erinnern und recommendiren Wir Ihnen, Unsern geliebten Söhnen, hiemit treuväterlich, sich zuforderst für ungleichen Heurathen zu hüten, noch dadurch Ihr uraltes Fürstliches Haus zu vernachtheiligen; vilmehr solchen Falls auf standesmäßige tugendhaffte Personen Ihr Absehen zu richten, und dadurch Ihres Fürstlichen Hauses Lustre zu befördern; welches Wir denn auch Ihrer Lbden beyderseits sammentlichen Fürstlichen Nachkommen hiedurch ebenmäßig angelegentlichst eingebunden haben wollen."
The reason for this clause was that the hereditary prince Carl Friedrich (1668-1721), who was widowed since 1708, was living since 1712 with Wilhelmine Charlotte Nüßler (1683-1740), the daughter of a non-noble chancery counselor, who bore him a son in 1713.  Then the prince learned that his son and heir had secretly married on May 1, 1715 and was trying to have his wife raised to a countess by the Emperor.  He wrote on Nov 15, 1715 to the Emperor to prevent this, and added a codicill to his testament dated June 13, 1716 (approved by the Emperor July 15, 1717) denying the children of that marriage any succession rights.  The Emperor also sent a rescript to the hereditary prince dated 20 Aug 1717 instructing him not to call his wife princess or their children princes.  Nevertheless, after the death of his father in 1718, Carl Friedrich succeeded in Bernburg and obtained from the Emperor that his wife be made Gräfin von Ballenstätt on 19 Dec 1719, and the two sons of that marriage, Friedrich (1713-58) and Karl Leopold (1717-69) Reichsgrafen von Bä[h]renfeld on 12 Jun 1723; this, however, without prejudice of the rights of the agnates ("jedoch Uns, dem Heil. Röm. Reich und sonsten männiglich auch besonders den Vor-Kindern und Agnaten des Fürstlichen Hauses Anhalt-Bernburg an ihrem Recht und Gerechtigkeit unangegriffen und unschädlich"; cited in Schoen 1905, 12 n2).   In 1722, the Reichshofrat forbade the prince's widow to use the princely title for herself or her children.

However, on 16 Nov 1742 Emperor Charles VII raised the counts of Bährenfeld to the rank of princes of Bernburg, and they assumed the name of Anhalt.  Victor Amadeus Adolf,  prince of Anhalt-Schaumburg protested, but the Emperor died in 1745.   The prince brought up the matter to the college of electors gathered in 1745, but they declined to take up the matter in the electoral capitulation.  He then brought the matter to the Reichshofrat, which ruled on May 6, 1748 by repealing the diploma of 1742, forbidding the counts of Bährenfeld from calling themselves princes of Bernburg or princes of Anhalt-Bernburg, and allowing them only to call themselves Princes of Bährenfeld.  They died unmarried in 1758 and 1769. [Moser 55-58, Pütter 250-55, 297-98]

Bernburg-Hoym and Bernburg-Schaumburg

Victor Amadeus's younger son Leberecht (1669-1727), who founded the line of Anhalt-Bernburg-Hoym, did no better: see below for his 2nd, morganatic marriage. He married a third time on Sep 14, 1725 to Sofie von Ingersleben, a lady at his court and daughter of Just Adam von Ingersleben of well-known Anhalt nobility. The Reichshofrat denied her the right to the styles "princely" and "Durchlaucht".  She died on March 31, 1726. 

Leberecht's surviving son and successor Viktor Amadeus Adolf (1693-1772) married first a countess of Isenburg and had by her two surviving sons.  He remarried on Feb 14, 1740 Hedwig Sophie Henckel von Donnersmark, daughter of count Wenzel Ludwig.  This was an old family in Silesia but only raised in 1651 to the title of count.  She and her issue were nevertheless considered equal by the rest of the family. [Pütter 260-61]

Viktor's eldest son Karl Ludwig (1723-1806), an officer in a regiment at the service of the Netherlands, married on Mar 25, 1748 Benjamine Kaiserinn [Keiser, Keyser], daughter of a Dutch captain, in Stevensweert, Netherlands, without parental consent.  The marriage was declared void by a court in the Hague on26 July 1757, and the spouse's attempts to have her daughter recognized as a princess of Anhalt were rejected by the Reichshofrat on May 11, 1778; likewise an attempt to obtain the title of countess of Anhalt (Sep 14, 1780). The daughter was Viktoria Karoline Hedwig (9 Jan 1749-26 June 1841).  She had married on 21 Nov 1776 Thomas de Mahy, "marquis" de Favras (1744-90), an officer in the guards of the comte de Provence, brother of Louis XVIII. The marquis was involved in a counter-revolutionary plot at the beginning of the Revolution, arrested, tried and executed on Feb. 19, 1790. They had a son Charles who served in the Austrian army and had no issue, and a daughter Caroline who married a baron von Stillfried-Rattonitz [Ratenicz]. [Dictionnaire de biographie française, s.v. Favras.]  [Pütter 302-03; Stephan. Kekule von Stradonitz in  Intermédiaire des Chercheurs et Curieux June 1904, n. 1044, col. 972-73. Pütter also wrote a piece on her claims in Rechtsfällen (1777) vol. 3 part 1, p. 98f.]

Viktor's younger son by the first marriage, Franz Adolf (1724-84), married on Oct 19, 1762 Josefa von Hasslingen, daughter of Johann Wolfgang, of Silesian nobility.  She was raised to the rank of countess by the Emperor, against which Franz Adolf's brothers asked the Reichshofrat for a declaration that this elevation would not be to their disadvantage in any way (Sep 4, 1766)but they were rebuffed (9 Jan 1767).   The two children of that marriage were considered dynasts, and the daughter married a prince of Hesse-Philippsthal.  The surviving son of that marriage, Friedrich Franz (1769-1807) married Caroline Westarp; the descendants of that marriage (still extant) were made Grafen von Westarp in Prussia. [Pütter 313-14, 320]

The line ended with Karl Ludwig's only son by his second (equal) marriage, Viktor Karl Friedrich (1767-1812) who left only daughters.

Köthen

The founder of the line, August, was succeeded in 1653 by his three sons, two of whom died without issue.  The third, Emanuel, had a posthumous son Emanuel Lebrecht or Ruprecht (1671-1704).  As a young man he fell in love with Gisela Agnes von Rath [Rathen], of old nobility of Anhalt, but the prince's mother arranged to have her sent to Stadthagen, where her sister was married to a man named von Puttkammer.  The prince's mother died in 1690 and her son came of age in Jan 1692.  He brought her back and married her on 30 Sept. 1692.  She bore him 3 sons and 2 daughters, and was made an imperial countess under the name of Nienburgon 23 July 1694 .  The agnates refused to accept the marriage as dynastically valid and Emanuel Lebrecht sued them before the Reichshofrat for libel in 1696; in the end, by treaty of 28 Jun 1698, the princes of Anhalt-Bernburg, Harzgerode, Zerbst and Dessau recognized the male issue of that marriage as lawful heirs and all descendants as princes and princesses of Anhalt with all appertaining rights, without however creating any precedent against the prescriptions of the house laws of Anhalt; and Emanuel Lebrecht was required to recognize and acceptthem as his father and grandfather had done before him.  Imperial confirmation came on 12 March 1699.   On 3 Aug 1699 Emanuel Lebrecht assigned to his wife the castle, city and bailiwick of Nienburg as dowage and made her tutrix and regent in case of minority of his successor (this again was approved by the agnates); after hsi death in 1704 she in fact was regent for her son until he came of age in 1715, and thereafter she lived in Nienburg until her death on 12 March 1740.  The ducal house of Anhalt-Köthen (extinct in 1847 in male line) descends from that unequal marriage. [Pütter 174-77]

Emanuel Lebrecht's younger son, August Ludwig, had reached an agreement with his older brother in 1716, accepting for himself Warmsdorf instead of joint sovereignty.  He decided to marry Agnes von Wuthenau (d. Jan 15, 1725), lady-in-waiting of his mother, and she was created Gräfin von Warmsdorf by the Emperor on Nov 18, 1721.  He married her on Jan 13, 1722.  They had only daughters who died unmarried.  He remarried on Jan 14, 1726 with Christiana Johanna Aemilia Gräfin von Promnitz (d. 1732).  At the time his older brother Leopold was married with a princess of Nassau-Siegen, who had a son; but the son died soon, and so did Leopold in 1729, making August Ludwig the ruling prince in Köthen.  His children by his second marriage succeeded him.  He later married his second wife's sister Anna Friederika (d. 1750). [Pütter 256-58]

Zerbt

The founder of the line, Rudolf, was succeeded by his son Johann (1621-67), who instituted a form of primogeniture.  His 4th son Johann Ludwig von Anhalt-Dornburg (1656-1704), after some time spent abroad, including in a military campaign in Hungary in 1684, settled in Dornburg and married on 23 Jul 1687 Christine Eleonore von Zeutsch (5 Jun 1666-17 May 1699), of an old Saxon noble family.  She bore him 5 sons and 2 daughters.  On the occasion of a family compact of 1689 which was submitted to the Emperor for confirmation, he obtained from the Emperor the insertion of a clause in that confirmation reserving the rights of Johann Ludwig's children as born of a legitimate and lawful marriage.  In 1693 the younger son of Johann Ludwig's eldest brother died, leaving only one sibling; Johann Ludwig's next two older brothers were either unmarried or without male heirs, all of which made the possibility of the Zerbst inheritance passing to his line more likely.  Consequently he took further steps to insure the succession for his children, and on 7 Jan 1698 secured an imperial decree making the children of his marriage with Christine von Zeutsch princes and princesses.  The children of the marriage were indeed considered dynastic, and at the death without heirs of the younger son of Johann Ludwig's eldest brother in 1742, the son of Johann Ludwig succeeded.  One of the grandchildren became empress Catherine II of Russia.  The line became extinct in 1793. [Pütter 166-69]

Johann Ludwig's older brother Günther (1653-1714) had an affair with Auguste Antonie Marschall von Biberstein, a lady-in-waiting to his mother, who bore him a daughter in 1680.  She lived under the name of Madame Güntherode in Naumburg.  He served in various wars and returned home in January 1705 to marry his beloved.  He lived quielty in Mülingen until his death.  She retired to Calbe an der Saale and died on 27 Dec 1736.  Their only child, a daughter, married twice, both times to junior military officers.

Austria (Habsburg)

In 1546 and 1547, having won the victory of Mühlberg against the Protestant princes led by the elector of Saxony, Emperor Charles V held a Reichstag in Augsburg.  Ferdinand, then king of the Romans, attended and brought along his 18-year old son, archduke Ferdinand (1529-95).  The latter fell in love with the Philippine Welser (1527-80), daughter of Franz Welser, a patrician of Augsburg, and Anna von Zinnenberg.  In 1554 king Ferdinand devised a division of his lands between his sons, giving Bohemia and Hungary to his eldest son, and dividing the Autrian lands between the three sons, so that Ferdinand would receive Tirol.  Ferdinand and Philippine were married secretly in 1557 in Bohemia, where he was governor.  She gave birth to two sons, Andreas and Carl.  When Ferdinand learned of the marriage he refused to see his son and threatened to annull the marriage, but Philippine managed to gain access to him and pleaded successfully her cause. 

A document signed by the spouses on 6 Sept. 1561 and the Emperor on 13 Sept. 1561 stated that the archduke and his "humble and unworthy spouse" ("Seiner fürstlichen Durchlaucht demüthige und unwürdige Ehegemahl") recognized the imperial wrath they had incurred by marrying secretly and without his knowledge and consent, particularly given the disparity in rank, and humbly seeked his forgiveness; the Emperor left it to God and the church to decide the validity of the marriage, and pardoned them on the following terms.  The children of the marriage would not be admitted to succeed in the hereditary principalities and territories which the archduke would receive from the Emperor; of the sons, those in clerical stand would be content with their benfices, those who remained lay would collectively receive an annual 30,000 Gulden; the daughters would receive a dowry of 10,000 Gulden.  If the archduke were able to earn or save anything, he could give it to his sons.  In case of complete extinction of the male line of the Austrian family, the children of that marriage would succeed in all Austrian lands held in fief from the Empire, but not in the kingdoms of Bohemia and Hungary and lands appertaining.  The children would bear the name N. von Oesterreich and the arms of Austria, but none of the royal titles and arms of the house of Austria.  Should she survive her husband, she would receive an income of 3,000 Gulden which would go after her death to her children.  In case any child died, his entitlement passed to the others; on extinction of the male issue all incomes return to the house of Austria.  Should he survive her and remarry  equally, the children of that second marriage would have full rights.  The marriage, which had been revealed to the archduke's brothers, was to remain secret and be known only of a few officers of the archdukes court.  And to this effect the Emperor, of his full imperial authority, derogated from any law written or unwritten that concerned the succession of the children. 

Ferdinand ruled Tirol after the death of the Emperor in 1564 and lived with Philippine Welser until her death; he remarried with Catarina of Mantua and had two daughters by her  Of his sons, Andreas (1558-1600) became bishop of Brixen and cardinal in 1579; from 1597 to 1599 he served as interim governor of the Netherlands while archduke Albrecht travelled to Spain for his marriage.  In 1559 Ferdinand had received the margraviate of Burgau from the Emperor, and she bore, with the Emperor's permission, the title of "Marggräfinn zu Burgau, Landgräfinn zu Nellenburg und Gräfinn zu Hochenberg".  It took Ferdinand's other son Carl 14 years to come into possession of the margraviate, and under the conditions (made with the Emperor in 1608) that he renounce the title and arms of an archduke of Austria, receive Burgau in fief from the senior archduke of the house of Austria, which title and land would pass it only to children born of a princely marriage (he had married a princess of Julich), and return to the house of Austria on extinction of the male line.  Carl died in 1618 without children from his marriage.

[Pütter 103-117]

Baden

Moser.  Klüber.  Schoell, Histoire des traités de paix, 1:175-77.

The house of Baden split in 1533 into the Baden-Baden and Baden-Durlach lines.

Margrave Ernst zu Baden, founder of the Durlach line, was widowed in 1518 of a princess of Brandenburg-Ansbach, of whom he had two sons. Of his brothers two were clerics and three were lay (one of whom, Bernhard, founded the Baden-Baden line).  He remarried in 1518 (Abt) or 1520 (Pütter) with Ursula von Rosenfeld [Rosenfels] (d. 1538), a lady of the court (Hofdame) of an old noble family extinct in the mid-16th c.,, by whom he had one son and two daughters (one born in 1518).  In 1537 he drafted a division of his lands between his three sons, giving the larger share with the margraviate to his eldest son, dividing the rest in two and giving his second son the choice between the two part; the third son having eventual rights to the shares of his eldest brothers in case of extinction of their male issue.  In 1542 Ernst's eldest son died.  Ernst obtained imperial confirmation of his testament in 1550.  In 1552 he ceded the government of his lands to his two sons jointly; but his second son died in 1553, a few days before Ernst. Karl was thus the only surviving son and succeeded his father in Durlach, without any opposition from the agnates (in particular the two sons of Bernhard of Baden-Baden, who were under guardianship).  From Karl descends the whole Durlach line (including the grand-ducal house).   Ursula's tomb does not seem to show her family arms, but she is called in the epitaph "ill[ustra] Dna Ursula marchionissa in Baden et Hochb. illustris princ. Dni Ernesti March. in Baden et Hochb. Coniux".  [According to Pütter, but see O. K. Roller in Schau ins Land, 33. Jahrlauf, s. 40]. Ernst had remarried a third time to Anna Bombast von Hohenheim, of Wurttemberg nobility, but without issue. [Pütter 83-91, based on Spittler 1789]

In the senior Baden-Baden line, the ruling margrave Philibert had assigned to his younger brother Christoph the meager lordship of Rodemachern.  Christoph nevertheless married a royal princess, Caecilie, daughter of the king of Sweden.  They led a costly and peripatetic life, and their son Eduard Fortunatus von Baden-Baden (1565-1600) was born in London.  He was raised a Catholic.  In 1588 he succeeded his first cousin Philipp II as margrave.  He met in Brussels  noblewoman named Maria von Eicken, daughter of the marshall of the court of the prince of Orange and governor of Breda, and married her on March 13, 1591  They went to Italy where she gave birth to a daughter, but he only made his marriage official upon his return to Baden on July 30, 1593  A few months later she gave birth to a son Wilhelm.   In 1594 he declared that she should be treated as a princely widow after his death and his sons by her should succeed him.

Eduard's finances fell into such disarray that the Emperor put him in receivership and entrusted his estates to the dukes of Bavaria and Lorraine.  The trustees were going to sell the margraviate to the Fuggers when Ernst-Friedrich, margrave of Baden-Durlach, asked to exercise his right of preemption and took possession of the margraviate in 1595.  When Eduard Fortunatus died in 1600 (allegedly falling down stairs while chasing a young girl), the margrave of Baden-Durlach questioned the status of the issue of that marriage, claiming that the marriage was void, and gave the margraviate of Baden-Baden to his brother Georg Friedrich.  He also obtained a favorable imperial decree on 26 Feb. 1605.  At the Reichstag of 1613 a dispute arose as to the exercise of the Baden-Baden vote. 

When the Thirty Years war broke out, the branch of Baden-Durlach, which was protestant, took sides against the Emperor, and Georg Friedrich, who had ceded his estates to his son Friedrich, was beaten by Tilly at Wimpfen on May 6, 1622.  Not surprisingly, on 4 Sep. 1622 the Reichshofrat ruled in favor of the children of Eduard Fortunatus and ordered the restitution of the margraviate, as well as the income of 28 years, to them; the sentence was enforced by the Emperor's armies.  By a transaction at Ettlingen in 1629, the 28 years' worth of income was replaced by a sum of 380,000 Gulden, with the bailliwicks of Stein and Remchingen as pledge.  Wilhelm, son of Eduard Fortunatus, appeared in person in the Reichstag of 1640 and 1641 and no one questioned his presence.  The peace of Westphalia saw the matter raised again, with the margrave of Baden-Durlach demanding restitution, but in the end Wilhelm retained the margraviate (art. IV, §26); however the transaction of Ettlingen was cancelled and no further claims were allowed the Baden-Baden branch.  [Pütter 125-135]

See also the morganatic marriage of Margrave Carl-Friedrich in 1787.

Brunswick

Moser 52-55.

Some writers report that duke Erich of Brunswick-Calenberg (1470-1540) had a third marriage with Catharina von Wodan [Weldam], the issue of which had the title of Freiherren von Haren [Harem] und Lißfeld [Lysfelt], but others report her as a concubine.

The dukes of Gloucester and and Cumberland

In 1714, Georg Ludwig, Elector of Hanover, became king of Great Britain and Ireland and moved to London.  Although he and his son George II returned to Hanover almost annually, under George III the ties with Germany became looser.  British law knew nothing of equality requirements and mismarriages.  

George III had three brothers who survived to adulthood, the dukes of York (who died unmarried in 1767), Gloucester and Cumberland. In Sept. 6 1766, William Henry, duke of Gloucester, secretly married Mary Walpole, dowager countess Waldegrave and illegitimate child of Sir Robert Walpole, a younger son of the famous Prime Minister.  On Oct. 2, 1771, George III's only other surviving brother Henry Frederick, duke of Cumberland married Anne Luttrell, daughter of Baron Ingram, and revealed his marriage to the king on November 2.  Gloucester revealed his own marriage to the king on Sept. 13, 1772, when his wife was pregnant with their first child.  The king was furious at both of his brothers and pushed through Parliament the Royal Marriages Act of 1772.  An inquiry into the legality of Gloucester's marriage concluded that it was legal.

The duke of Cumberland died without issue in 1790, having been reconciled with his brother in 1780. The duke of Gloucester, who also returned to court in 1780, had two surviving children: Prince William of Gloucester (1776-1834) who succeeded his father as duke of Gloucester, and Princess Sophia Mathilda (1773-1844), who never married (a third child died in infancy).  Both children were styled Highnesses in Great Britain (Annual Register 1794, 1795, 1799 for Prince William of Gloucester; ibid., 1816 for Princess Sophia Mathilda; Journal of the House of Lords 1806 for the 2nd duke of Gloucester).  The 2d duke of Gloucester married on July 22, 1816 his first cousin Mary, daughter of George III, and on the occasion of his marriage he was granted the style of Royal Highness (Complete Peerage 5:745). There is no doubt that they were treated as full members of the British dynasty; their status in Hanover was very much in question.  The official Königlicher Gross-Britannisch- und Chur-Fürstlicher Braunschweig-Lüneburgischer Staats-Kalender did not list the 1st duke of Gloucester's spouse or children either child until 1802 (when it ceased publication), and the 2nd duke was not asked to sign, like other agnates of the house, the family compacts such as the pact of 1831.  The status is the Gloucester marriage is discussed by Häberlin in his Staats-Archiv, vol. 1 [1796], p. 91. See a discussion of the duke of Gloucester in the context of British styles and titles.

Hesse

Landgrave Ernst-Ludwig of Hesse-Darmstadt (1667-1739), widowed with three sons, remarried in 1727 Louise Sophie von Spiegel, Freyin von Desenberg (1690-1751), widow of the Bavarian lieutenant-general Christoph von Seiboldsdorff [Seibelsdorf].  Their two daughters took the title of Gräfin von Eppstein [alias Darmstadt]. [Moser 62-63, Pütter 271]

His grandson landgrave Ludwig IX (1719-90) remarried on Oct 23 1775 Marie Adélaïde Cheirouze, who was made countess of Lemberg on Oct 23, 1775.  This was actually a morganatic marriage; the contract of that date gives her the title of countess of Lemberg.  The landgrave petitioned the emperor for a title on Dec 10, 1777 but it was withdrawn on Jan 31 after she had escaped.  She was arrested and interned  (there was no issue).

Friedrich (1677-1708), a younger son of landgrave Ludwig VI, married in 1704 Petronella von Stockmann-Detting.  Their only daughter married Karl Anton, count von Gianini.

Ludwig Georg Karl of Hesse-Darmstadt (1749-1823), nephew of Ludwig IX, married on Jan 26, 1788 Friederike Schmidt (1751-1803), the daughter of a merchant.  [Pütter]  She was created baroness of Hessenheim on Mar 25, 1793.

His brother Friedrich Georg August (1759-1808) married in 1788 Karoline Luise Salome Seitz (1768-1812).  Their only son was ennobled and created baron von Friedrich on Aug 6, 1827 by the grand-duke.

Georg (1780-1856), second son of landgrave Ludwig X, married in 1804 Caroline Ottilie Török de Szendrö (1786-1862), created baroness of Menden in 1804, countess of Nidda in 1808, princess of Nidda in 1821.  A daughter of this marriage bore the title of princess of Nidda.
Constantin of Hesse-Rheinfels-Rotenburg (1716-78), younger son of landgrave Ernst Leopold,  married in 1745 Marie Eve Sophie (1722-73), daughter of count Conrad Sigmund Anton von Stahrenberg in 1745. She was the widow of Wilhelm Hyacinth von Nassau-Siegen.  The family was issued from the margraves of Styria and belonged to the ranks of Herren; it was raised in 1643 to the rank of count and Conrad Sigmund had taken his seat in the college of Counts of Franconia in 1719.  This Notwithstanding, the senior line of Hesse-Cassel tried to have the issue declared as unable to succeed, but by a treaty of 1754, the landgrave of Hesse-Cassel renounced any objections against the issue of Constantin's ability to succeed. (Moser 63).  The issue became extinct in male line in 1834. [Pütter 302]  He remarried in 1775 with Marie-Johanette, comtesse de Bombelles (1750-1822), with no issue.

Ernst of Hesse-Rotenburg (1758-84), youngest son of Constantin, married in 1778 Christine von Berdeleben, the daughter of the governor of Cassel, who bore him one son (d. 1787).  He was an officer in the Russian army and was killed in a skirmish in the Caucasus mountains.  She was given the rank of princess in Cassel, ranking first after all other princesses of the house; but she was not named among the members of the house in the State Calendar of Cassel. [Pütter 316]

Ludwig of Hesse-Philippstal (1766-1816), a son of landgrave Wilhelm, married in 1791 Marie Franciske Berghe von Trips (1771-1805); only a daughter, Caroline, survived to adulthood. [Pütter 320.]  She married in 1810 Ferdinand de la Ville sur Illon

Holstein

Christian Adolf von Holstein-Sonderburg was obliged to cede his territory of Sonderburg to the king of Denmark to pay off his debts and settled in Franzhagen, in Lauenburg.  His son Ludwig Carl zu Holstein-Franzhagen (1684-1708) married on 20 Dec 1705 Anna [alias Barbara] Dorothea von Winterfeld (1670-1739); they had two children who died both in infancy. [Pütter 229]

Alexander Heinrich zu Holstein-Sonderburg (1608-67), second son of duke Alexander, married in 1643 or 1644 Dorotha Maria Heshus(ius), daughter of the court preacher.  He entered imperial service and became a Catholic. The children of this marriage (4 sons and 5 daughters) were excluded from the Holstein succession; two sons became clerics, the third joined the army, all died without heirs; the daughters married Austrian counts[Pütter 150-51].

 Friderich zu Holstein-Sonderburg-Augustenburg (1652-92) married in 1692 Anna Christina Bereuter, daughter of a barber of Kiel; he died the same year at the battle of Enghien (3 Aug 1692) without issue. [Pütter 159-60.]

Ernst August zu Augustenburg (1660-1731) married in 1695 Marie Therese (Freyin according to some) von Velbrück, daughter of the Master of the Horse of the Elector Palatine; they had no issue.  He converted to Catholicism and obtained a position as canon in Cologne, but later returned to Protestantism. {Pütter 170]

Ernst Casimir zu Beck (1668-95) married in 1693 Maria Christina, daughter of Wolfgang Ehrenreich Graf von Prösing; she died in March 1696 without issue. [Pütter 177]
See also the Plön case.

Hohenzollern

Georg Albrecht von Brandenburg-Kulmbach (1666-1703), younger son of margrave Georg Albrecht, lived on the apanage of Oberkotzau.  He married Regina Magdalena Lutz, daughter of Johann Peter Lutz, an administrator in Oberkotzau, on 27 Apr 1699.  The issue of the marriage took the name of Freiherren von Kotzau, and became extinct in 1976. [Pütter 189-190]

Margrave Christian Friedrich Karl Alexander of Brandenburg-Ansbach (1736-1806) remarried on 20 (alias 30) Oct 1791 Elisabeth Berkeley (1750-1838), daughter of the earl of Berkeley.  She was created Prinzessin von Berkeley by the emperor on 20 Feb 1801.  There was no issue.

Nassau

In the Usingen branch of the Walramian line, Ludwig of Nassau-Saarbrücken (1745-94) married first equally and had three sons.  Widowed in 1780, he fell in love with a maid named Catharine Margarethe Köst (1757-1829), daughter of a peasant.  He took her as a mistress, had her ennobled by a count palatine under the name Ludwigsberg, then had her created baroness von Ottweiler by the Emperor (Nov 24, 1781) and her children legitimated under that name as barons; then on July 27, 1784 she was made an imperial countess.  This took place with the consent of the agnates of Usingen and Weilburg, but always with the express exclusion of the children from the succession.  Finally the prince married her on Feb 28, 1787 assigned her a princely dowage, and tried to get the agnates to recognize his children as able to succeed.  This was going a bit far, and on a request of the agnates the Reichshofrat told the prince not to give his wife or children title, name and arms of the princes of Nassau.  He supposedly obtained from the king of France the hereditary title of duchess of Dillingen for her in 1789 (allegedly registered in the parlement of Nancy, May 23, 1789). All his sons by the second marriage died unmarried, the last one in 1812. [Pütter 318-19, AD 3:421, 437-39]

His eldest son by the first marriage Heinrich Ludwig (1768-99), while hereditary prince, married on Oct 3, 1779 (at the age of 11!) Marie-Françoise-Maximilienne de St.Mauris de Montbarrey (2 Nov 1759-1838), daughter of the French minister of war, of Franche-Comté nobility, created a Spanish grandee 1st class in 1780 and prince of Montbarrey in the HRE in 1774. There was no issue.  (See the father-in-law's Memoires(1826) for details on this curious marriage).

Ostfriesland

Count Edzard Eberhard Wilhelm (1666-1707) married in 1701 Sophia Maria Föltin, a commoner, and asked the Emperor to ennoble her and approve the marriage, but his mother Anna Dorothea von Criechingen (d. 1705) petitioned the emperor to have said Föltin declared "majoris dignitatis indigna" and their children unable to succeed, which the Emperor did. [Moser 98, citing Struve, Jurispr. Heroic., 2:102; Pütter 217-18].

Palatinate and Bavaria (Wittelsbach)

The Wittelsbach had split in the early 14th c. into the elder Palatine (Rudolfine) branch and the younger Bavarian (Wilhelmine) branch, the latter extinct in 1777.  The Palatine branch split into a senior line (extinct 1559) and a younger line of Simmern, which further split into Simmern (electoral in 1559, extinct 1685) and Zweibrücken.  Zweibrücken split in 1569 into Neuburg (extinct 1799), Zweibrücken (extinct 1731) and Birkenfeld (renamed Zweibrücken in 1731).  Neuburg inherited the electorate in 1685 and its senior line became extinct in 1742, it junior Sulzbach line (which inherited Bavaria in 1777) in 1799.   Birkenfeld had split in 1654 into Birkenfeld (renamed Zweibrücken in 1731) and Gelnhausen (renamed Birkenfeld). Zweibrücken inherited Bavaria in 1799, became the royal Bavarian line in 1806; the junior line of Gelnhausen/Birkenfeld became known as the ducal Bavarian line (Herzog in Bayern).

See also examples of morganatic marriages in the house of Wittelsbach.

The case of duke Albrecht III of Bavaria (1401-60) and Agnes Bernauer (d. 1435) is unclear; she is dressed in princely robes on her tomb.

Gustav Samuel Leopold (1689-1731), was the last of the line of  Zweibrücken.  He had become Catholic in 1696, but married in 1707 a Protestant princess who was his second cousin, without seeking papal dispensation for the degree of consanguinity.  He inherited the title at the death of his kinsman king Charles XII of Sweden in 1718.  He was secretly married by the Catholic parish priest of Zweybrücken on Oct 10, 1722 Luise Dorothea von Hofmann (1700-45), son of the ennobled deputy master of the horse (unter-Stallmeister) of the prince of Nassau-Saarbrücken and of the daughter of a butcher in Metz.  Meanwhile he asked the Pope for an annullment of his first marriage so that he could remarry; the Pope was well disposed toward a prince who might have a Catholic heir, and the matter was promptly referred to the bishop of Metz, who annulled the marriage on Apr 2, 1723, requiring the duke to pay 1000 French livres to the churches in his domains as penance for having lived so many years in an invalid marriage.  On May 13, 1723 he announced his second marriage.    The duke insisted that his servants treat her as a princess and give her the style of "hochgeborene Fürstin."  The announcement of his marriage sent to the imperial court was unanswered, and in a ruling by the Reichshofrat on a separate matter, she was only called "Gemahlin des Herrn Herzogs". But she was eventually created by the emperor Gräfin von Hoffmann ( Aug 31, 1724). After her husband's death in 1731 she used the titles and arms of the Palatine house; she was forbidden to do so by a decree of the Reichshofrat of 13 Feb 1734, confirmed by an imperial resolution of 9 May 1736, and ordered to style herself only as "Gräfin von Hoffmann, hinterlassene Wittib des Verstorbenen Herrn Herzogs zu Pfalz-Zweybrücken Gustav Samuels" [Moser 49-51, Pütter 265-67] (see a depiction of the offending arms).

Christian IV von Zweibrücken (1722-75), married on 3 Sep. 1757 Maria Johanna (Marie Jeanne) Camasse (born 1734 in Strasbourg, + 1807 in Paris), a performer at the Paris Opera. She had bought the county of Forbach, in Lorraine, in 1756 and taken the title of countess of Forbach, which was confirmed by letters patent of Louis XVI in July 1774 for her and her children. It was alleged that a secret marriage took place in 1751 but it is not documented. The marriage was not revealed publicly until after the death of Christian IV, although he recognized the issue in september 1771. The children did not succeed to any of their father's estates, but the eldest son was made baron of Zweibrücken in 1782 and matriculated in Bavaria in 1813. The male posterity died out in 1859. They had born the arms fusilly per pend argent and azure a lion gules (the countess of Forbach had used or a fess gules). (See Annuaire de la Noblesse de France, 1910, p. 294).

Pfalz-Gelnhausen/Witzleben (1696)

Christian I, Pfalzgraf von Bischweiler, younger son of the founder of the Birkenfeld line, died in 1654 leaving Christian II (d. 1717), and Johann Karl zu Gelnhausen (1638-1704).  From these two brothers are descended the line of Birkenfeld (in 1775 Zweibrücken, in 1799 elector of Bavaria, in 1806 royal line of Bavaria) and Gelnhausen (in 1775 Birkenfeld, in 1799 ducal line of Bavaria).

The two brothers inherited Birkenfeld in 1671, and agreed on 15 Apr 1673 to share the patrimony so that Christian II received Birkenfeld and Bischweiler, and the younger son received as apanage a third of the total income of the lands assigned on the principality of Neuburg (as well as 4 cart-loads of Moselle wine from the cellars of Trarbach every year!). 

Johann Karl married first his kinswoman Sofie Amalie von Zweibrücken, by whom he had one daughter.  After his first wife's death, he married one of her ladies-in-waiting, Esther Marie von Witzleben (1666-1725), of local nobility of Thuringen and Misnia, the daughter of a Oberforstmeister of Saxe-Romhild, widowed c.1690 of a von Bromsee [Brömse], on 28 Jul 1696 (her 30th birthday).  Soon after (there is a letter of  August 22, 1696) Johann Carl entered into an agrement (Vertrag) with his older brother, but later changed his mind and asked the emperor to make his wife a Reichsgräfin.; he died before a decision in 1704.  Christian II refused to recognize the children (three sons and two daughters) as agnates.  Johann Karls' widow sued on 3 Sep. 1708 in the Reichshofrat and obtained on April 11, 1715 the following ruling:
"Fiat Sententia. Daß die zwischen weyland Herrn Pfalzgrafen Johann Carl und seiner hinterlassener Fürstlichen Frauen Wittib Esther Maria, gebohrner von Wizleben, getroffene Ehe, vor ein ordentliches, gültiges und vollständiges Matrimonium, des von Herrn Beklagten Pfalz-Grafen Christian, aus dem brüderlichen Vergleich vom 15 Apr. 1673 darwider angezogenen Passus und gethanen andern Einwendens ungehindert, allerdings zu achten, und um deßwillen die darinn erzeugte Kinder vor des Pfalzgräflichen Namens, Standes und Würden, und der Succession in alle ihrem Herrn Vatter zuständig geweßte Stamm- und Fideicommiss-Güter, Fürstliche Gerechtsame und Prärogativen ohne Ausnahm, und insonderheit den dermalen unbefugt in Streit gezogenen würcklichen Besiz und Genuß des jährlichen auf dem Fürstenthum Neuburg hafftenden Stamm-Deputats und der jährlichen Renten der vier Fuder Moßler Wein aus der Kelleren Trarbach, wie solchen, wegen nur benannter beeder Fürstlichen Gefällten, ihr Herr Vater selbst gehabt, oder hätte haben sollen, fähig zu erklären. etc."
Christian II acquiesced and signed an agreement with her, raising the allowance from 6,000 to 50,000 Gulden and securing succession rights for her children.  The other agnates initially refused to recognize the children of Johann Karl (possibly because they were Protestants), and the status of the Gelnhausen branch remained unclear for a while.  Of the sons of Johann Karl only Johann (1698-1780) left issue, Karl Johann Ludwig (1745-89, unmarried) and Wilhelm (1752-1837).

The family compact of 26 Feb 1771 (44 CTS 429) reiterated reciprocal succession rights between the Bavarian branch and the Rudolfine branch, whose extinction was described as the case where
"...Wie Carl Theodor Churfürst, und Unsere freundlich geliebte Herren Vettern die dermalige Pfalzgrafen und Herzogen zu Zweybrücken, und Unsere, auch ihre anhoffende Eheleiblich Mannliche Erben, und Nachkommen, als Weil. von Pfalzgrafen Rudolph des Kayser Ludwigs Herrn Brudern abkommende, und in dieser Linie zum Haus der Pfalzgrafen bey Rhein gehörige Fürsten, ohne Hinterlassung Männlicher Successions-fähiger Leibs-Erben, Ehelich und nicht ex dispari matrimonio entsprossen, gar ab- und austerben würde..."
The clause could well be taken to exclude the issue of Johann Carl, if his marriage to a Witzleben were considered "matrimonium dispar".  Furthermore, article 5 stipulated that any successor in Bavaria should be Catholic.  But that religion clause was in contradiction with the principles of the peace of Westphalia; and, Karl Johann Ludwig remained Protestant, he was unmarried, and his younger brother Wilhelm became Catholic in 1769 and married a Catholic princess, of the Birkenfeld (now Zweibrücken) branch, in 1780.

When the Elector Maximilian Joseph of Bavaria died in 1777, the court of Vienna had been planning to seize a large share of Bavaria for itself, under a variety of complex and dubious legal arguments.  It was already negotiating with the heir presumptive, the Elector Palatine Carl Theodor (of the Sulzbach line), and when the Bavarian elector died an agreement was rushed and signed on 3 Jan 1778, essentially giving away most of the Bavarian inheritance to Austria.  But the consent of the agnates would have been required, and Frederic II of Prussia prevailed upon the duke of Zweibrücken (formerly the Birkenfeld line) to refuse; negotiations between Prussia and Austria floundered, war broke out in the summer of 1778 and armies were fielded, although little fighting actually took place.  The war of the Bavarian Succession, such as it was, ended with the peace of Teschen of May 13, 1779.  Its article 8 states:

"Les Hautes Puissances contractantes [Austria and Prussia] et médiatrices [Russia and France] du présent Traité, sont convenues de garantir et garantissent formellement à toute la Maison Palatine, et nommément à la ligne de Birkenfeld, les Traités et Pactes de Famille de 1766 [5/22 Sep, 43 CTS 409], 1771 et 1774 [19 Jun, 45 CTS 345], en tant qu'ils sont conformes au Traité de Paix de Westphalie et qu'il n'y est pas dérogé par les cessions faites par le présent Traité et Conventions, ainsi que l'Acte signé aujourdhui entre le Serenissime Electeur Palatin et Mr. le Duc des Deux-Ponts, sur l'observation et l'execution de leurs susdits Pactes de Famille, lequel est annexé au présent Traité, et censé en faire partie, comme s'il y étoit inséré mot à mot."
Thus the rights of the line of Gelnhausen (renamed Birkenfeld in 1775) were explicitly recognized.  Carl Theodor apparently made great difficulties in accepting this; he seemed to be hoping to establish some kind of rights for his numerous illegitimate children.

Wilhelm took on Feb. 16, 1799 the title of "Herzog in Bayern", received on Nov 30, 1803 the duchy of Berg which he ceded in 1806 to Joachim Murat and for which he was compensated in Bavaria.  From him descends the "ducal line" of Bavaria.

[Schulze, 1:250. Moser, 51-52.  ADB 43:669.  Schoell 3:297-339.  Pütter 182-86.]

Saxony (Wettin)

Wilhelm III, duke of Saxony, landgrave of Thuringia (1425-83), was the younger brother of the elector Friedrich of Saxony.  He married first with a daughter of emperor Albrecht II, who bore him two daughters. After becoming a widower in 1462, he decided to marry Catharina von Brandenstein (d. 1492), daughter of Eberhard, a nobleman from Roßla, and widow of a knight named von Heßberg (no children), who had already earned his favor.  He secured the approval of his brother and nephews.  On 6 Jul 1463 with She was married by the archbishop of Magdeburg in the presence of many noblemen, and treated as an equal spouse.  She received Saalfeld as dowage.  Ernst and Albrecht, the sons of Wilhelm's elder brother (ancestors of the Ernestine and Albertine lines), called her "hochgeborene Fürstin, Frau Catharina, Herzogin zu Sachsen, Wittbe, unsere liebe Muhme."  There was no issue from the marriage.
[Pütter 56-62]

Johann Adolf I of Saxe-Weissenfels (1648-97), a grandson of elector Johann Georg I of Saxony, had ten children by his first marriage.  On 3 Feb 1692 he made a marriage contract with Christina Wilhelmina von Bünau (1666-24 Apr 1707), promising to take her as lawful spouse, to give her 6,000 Thaler as Morgengabe and an annual rent of 3,000 Thaler as dowage as well as the use of the castle of Dahma.  He admonished his sons to show her due respect, and should any children come from this marriage he would make further provisions.  The completion of the marriage in the presence of a priest was left at his discretion.  He lived with her 5 years and had her raised to the rank of imperial countess.  There was no issue.  Pütter, rather unconvincingly, says this resembled more a morganatic marriage than an equal marriage.  [Pütter 172-73]

Albrecht of Saxe-Coburg (1648-99), one of the sons of Ernst of Saxe-Gotha, married for the 2d time on May 24, 1688 Susanna Elisabeth, Frau auf Limburg und Amthof (1643-1717), daughter of Nicolai Kempinsky von Schwisiz und Altenhofen, a Styrian nobleman. and had her created an imperial countess on May 2, 1689.  She was called "Fürstin" in the marriage contract, which was signed by his brothers.  Pütter suggests this happened 5 years after the marriage, and possibly because the marriage was childless. [Moser 36, Pütter 169-70]

Friedrich Josias of Saxe-Coburg (1737-1815) married sometime before 1789 Therese Stroffek, daughter of a forest warden in Bohemia. Their son Friedrich (1789-1873) was ennobled in Austria on Aug 25, 1808 and received the title of baron von Rohmann in Gotha on Feb 17, 1853.

[AD 1:465, 477-78]
Christian Ernst of Saxe-Saalfeld (1683-1745) married on 18 [alias 29] Aug 1724 Christiana Friderica von Coss [Koss] (16 Aug 1686-15 May 1743), daughter of the master of the Horse in Saalfeld.  An agreement was reportedly passed between him and his brother Franz Josias on 14 Oct 1724 (Schulze, 1881, 50; text in J. A. von Schultes, Sachsen-Koburg-Saalfeldische Landgeschichte. Koburg, 1820-22. Vol. 2, annex 1).  But in Saalfeld she was always considered as duchess, including at her funeral (Moser).  Some writers claim that she was elevated to the rank of princess [Pütter 246]. The brothers jointly ruled after the death of their father in 1729.  The marriage was childless, and Franz Josias was the founder of the Saxe-Coburg-Gotha line.

Carl of Saxony (1733-96), third son of Augustus III of Saxony, king of Poland, was created duke of Curland on 16 Nov 1758.  On 25 Mar 1760 he married Franziska von Corvin-Krasinska, of Polish nobility.  She was created a princess by the emperor in June 1775.  Their only child, a daughter, married the prince of Carignano: their son Carlo Alberto became king of Sardinia in 1831 and their daughter married a son of Emperor Leopold II.

The case of Anton-Ulrich of Saxe-Meiningen (1713)

This case is particularly famous as it brought about the insertion of a clause against unequal marriages in the imperial electoral capitulation of 1742.

This account is taken from Schulze (1881, 37-39), Moser (36-47), Pütter (232-94).

The house of Saxe-Meiningen descends from Bernhard, the third son of Ernst of Saxony, duke of Gotha (1601-74), whose seven children divided his inheritance in 1680.  Bernhard (1649-1706) received Meiningen, Wasungen, Salzungen, Massfeld, Sand, Frauenbretungen and Henneberg.

Bernhard chose Meiningen as residence and built his palace, the Elisabethschloß.  In his testament of 1688, he ordered that his lands never be divided, but that they should be owned jointly by all sons until such time as each is able to acquire a principality commensurate with his rank.  He explains at length his opposition to primogeniture, claiming that it was not only contrary to the house laws, testaments, and customs of the house of Saxony, but also that it only brought bad luck to those who introduced it in their families.

At his death, his three sons accordingly succeeded him: Ernst Ludwig, Friedrich Wilhelm and Anton Ulrich (1687-1763), under the rule of the eldest one.  Ernst Ludwig disobeyed his father's will and, in his own will of 1721 (which received imperial confirmation in 1725) instituted primogeniture in his own line and required "alter Grafenstand" for marriages (see the text below); but that line became extinct with his son Karl Friedrich in 1743, at which point the two other brothers ruled jointly.  When Friedrich Wilhelm died without issue in 1746, Anton Ulrich was left as sole ruler of the Meiningen lands.

Anton Ulrich's marriage was a milestone in the history of German house laws.  In 1713, he secretly married Philippine Elisabeth Cäsar (d. 1744), the daughter of a Hessian officer, and lady-in-waiting of his sister the abbess of Gandersheim. [Many authors call her Schurmann, the name of her brother-in-law, Kapellmeister of Meiningen.]  Anton Ulrich  had with her two sons born in 1716 and 1717, and later more children.  He decided to have his wife and children titled princes by the emperor in order to make them of equal rank and thus apt to succeed him.  At that time the dukes of Saxony and Anhalt made a convention against morganatic marriages, and Anton Ulrich was informed by his brother Ernst Ludwig that it would apply to his marriage (1 Aug 1717).  Anton Ulrich wrote himself a protest, declaring the convention disgraceful, un-christian, erroneous, without force, incoherent, and unlawful; and he went to Vienna in 1718 to ask the emperor not to confirm the convention.

In spite of the furious protests of his eldest brother, as well as those of all Saxon agnates and even other German princes, on 21 Feb 1727 Emperor Charles VI raised her to the rank of Imperial countess with the style of Hochgeboren, and declared that their children were princes and princesses, dukes and duchesses of Saxony and fully entitled to the same claims and rights as those of any equal marriage:

"Wie Wir dann auch dadurch und mithin nicht allein obernannte ihre mitgedachtes Anton Ulrichs, Herzogs zu Sachsen Lbd. ehelich erzeugte drey Töchter und drey Söhne, als Philippinam Antoniam, Philippinam Elisabetham, Philippinam Ludovicam, und Bernhardum Ernestum, Antonium Augustum und Carolum Ludovicum, sondern auch alle andere hinfüro aus diser Ehe etwa weiter überkommende Erben, Mannes- und Frauens-Personen, und deren Erbens-Erben, nach gemeinem Rechten und Ordnung, für rechtgebohrne, aus voll- und beyderseits gleichbürtiger Abkunfft herstammende Fürsten und Fürstinnen, mithin auch, von ihres Vaters wegen, Herzoge und Herzoginnen zu Sachsen, mit aller Lehens- und Erbfolgs-Gerechtig- und Fähigkeit, so wohl in denen jezigen, von Sr. Lbd. bereits besizenden, als allen andern, durch göttlichen Seegen über kurz oder lang etwa, auf was Recht oder Art es immer seyn könne, anfallenden Landen und Leuten, mit allen Fürstlichen Rechten und Befugnissen allerdings würdig, fähig und berechtigt erklären."
The Reichshofrat could do nothing but accept the imperial decree, although on 26 Nov 1727 it added the condition that "obgedacht dero jezig und künftige eheliche Leibeserben sich für dergleichen Mißheurath zum Nachtheil des Teutschen hohen Fürstenwesens hüten und davon abstehen, widrigen Falls der- order dieselbe dieser Kayserlichen Gnade und davon abhangenden Fürstlichen Rechten verlustiget seyn sollen."  The decision was appealed by Anton Ulrich's brothers but confirmed by the Emperor on 4 Feb 1733.

After the death of Charles VI in 1740 the matter was brought up during the election of the new emperor in 1741.  Some princes wanted to define Vierahnenadel as equality requirements for members of the upper nobility (Abt 1911, 111 n2), but clearly there was not enough agreement on such a high standard.  Ultimately a clause was inserted in the Electoral Capitulation of the next emperor, Charles VII, according to which the emperor promised never to raise to the status of equal children born of a "notoriously unequal" marriage.

As for Anton Ulrich's marriage, a ruling of the Reichshofrat of 25 Sep. 1744 annulled the diploma of 1727 inasfar as it concerned Saxon titles and inheritance.  Anton Ulrich appealed to the Reichstag which unanimously upheld the ruling on 24 Jul 1747, confirmed by imperial court decree of 4 Sep. 1747.

Anton Ulrich did not quite give in.  Widowed, he remarried, equally this time to Charlotte Amalie of Hesse-Philippsthal, by whom he had four sons andf five daughters. Yet, shortly before his death in 1763, he wrote a will (27 Jan 1763) declaring his two eldest sons to be dukes of Saxony, leaving his wife as regent until such time as the emperor resolved the matter in their favor.  His widow dutifully appealed and the Reichshofrat confirmed on 25 Feb 1763 that the two sons were ineligible to succeed.  In any event all his children by this first marriage died without issue.

Anton Ulrich's two surviving sons by his second (and equal) marriage,  Karl and Georg, succeeded him under the regency of their mother, until Karl's death in 1782 which left Georg sole ruler, and sole male of the Saxe-Meiningen line.

Württemberg

As early as 1489 an agreement between the cousins Eberhard (1445-96) and Eberhard (1447-1510) stipulated that if the younger should be widowed and remarried, he should do so with "einer die sein Gnos ist", but that if he should marry with "einer mindern und niedern Person" any children from that marriage would have no claim to his lands ot the lordship of Wurttemberg, but if he should marry with the consent of the elder, the wife would receive 2000 Gulden as his first wife had.

The house of Württemberg split in 1608 into three branches: Stuttgart (which eventually became the royal house of Württemberg), Mömpelgard or Montbéliard (extinct 1723) and Öls (extinct 1792).  The family pact of 1617 contracted between the three branches stipulated: "Haben auch hiermit, als an sich selbsten löblich, Fürst- und billig, die fernere Verordnung gethan, daß keiner unter Ihren Fürstlichen Gn. Gn. Gn. Gn. Gn. Sich ohne der Andern... Rath, Vorwissen, Willen und Belieben, zumal aber nicht ausser dem Fürstlichen Stand verheurathen soll noch will."

Karl Rudolf zu Württemberg-Neuenstadt (1667-1742), of a junior branch of Stuttgart, married unequally with Marie-Thérèse de la Contrie, who was only called "Madame", but after he succeeded in 1716 she was made a countess by the Emperor; they had no children.

Mömpelgard

This is probably the most complex case, involving a morganatic marriage, a divorce, bastards by an adultery later legitimated, a second morganatic marriage with the sister of the adulteress, adoption of the adulteress's children, and intermarriage between children and stepchildren.

Duke Leopold Eberhard of Württemberg-Mömpelgard (1670-1723), married first on 1 Jun 1695 Anna Sabine von Hedwiger (1676-1735), of a noble family of Silesia, in Rejowiz near Posen (Poznan).  In 1699 he succeeded his father as duke: he was the last male of the Mömpelgard branch.

They had four children of which two survived to adulthood:  Leopoldine Eberhardine (1697-1786) and Georg Leopold (1697-1750).  They became separated in 1700.  On 1 Aug 1701 the Emperor created her and their children Gräfinn von Sponeck.

Shortly thereafter the duke began living with Henriette Curie de l'Espérance, daughter of a captain in the imperial army, divorced on 1 March 1701 from her husband Johann Ludwig von Sandersleben, by whom she had had three children: Karl Leopold, Ferdinand Eberhard, Eleonore Charlotte (1700-73).   The duke and Henriette had 5 illegitimate children, of which two daughters: Eberhardine (b. 1703) and Leopoldine Eberhardine (b. 1705) survived to adulthood were legitimated under the name of Coligny.  Henriette died on 9 Nov 1707.  In 1714, the duke adopted Henriette's children by her first marriage and gave them the county of Coligny in Bresse (which he held from his mother Anne de Coligny).  In 1714, the duke's first marriage to Anna Sabina von Hedwiger was dissolved by the consistorium of Mömpelgard, under the condition that neither one remarry.  Nevertheless, the duke remarried in 1718, with the sister of his concubine, Elisabeth Charlotte de l'Espérance (1684-1733), by whom he had 6 children (some before, some after the marriage).  To make things even worse, the duke's children by his first marriage each married one of Henriette's children by her first marriage in 1719.

As if the duke hadn't broken enough rules, he then sought to have all of his children declared legitimate and apt to succeed him.  He had signed in 1715 in Wildbade a document, admitting to his kinsman Eberhard Ludwig that he had never married equally and that none of his children had any succession rights.  To undo this, he decided to renew the French naturalization granted to his father in 1651, which he obtained in 1719.  In 1721 he asked the emperor for the title of princess for his (second) wife and named his son (by his first marriage) Georg Leopold hereditary prince, and the latter's wife (his mistress's daughter by her first marriage and his own adoptive daughter as well) hereditary princess.  This unilateral move did not please the Emperor, who declared these actions null and void (8 Nov 1721) as "an open attack on the power and privileges of the emperor and the Holy Roman Empire".

He died on Mar 25, 1723 and his children Graf Georg Leopold von Sponeck as well as the barons de l'Espérance sued, but their claims were rejected by the Reichshofrat on 8 Apr 1723, which said that "according to the known laws and customs of Germany and the family compact of 1617, the children were unable to inherit to the princely dignity and to succeed to the immediate imperial estates and fiefs".  The children then took the dispute to French courts, which sequestered the estates in Mömpelgard (Montbéliard). Finally the French courts rejected their claims in 1747 and in 1748 the duke of Würtemberg came into possession of Mömpelgard.  The dispute dragged on for years and the duke's descendants did not give in until 1761. Pütter notes that both Georg Leopold von Sponeck (in 1731) and the duke of Würtemberg (in 1712) had become Catholics, so that religion was not a likely issue. [Moser 68-94, Pütter 177-182]

Carl Alexander of Würtemberg-Stuttgart (d. 1737) left three sons, the middle one Ludwig (1731-95) married unequally on Aug 10, 1762 Sophie Albertine von Beichlingen (1728-1807), of Thuringian nobility.  The marriage was apparently treated as morganatic, and for a number of years neither she nor their three daughters were given any princely rank and titles.  But the absence of male issue of that marriage may have decided the two other brothers to relent and grant her the title of duchess and the daughters that of princesses.  [Pütter 311-312]

The eldest brother Carl (1728-93),widowed in 1780, and with no surviving children, himself remarried unequally on Feb 2, 1786 Franciske Therese von Bernedin [Bernardin], previously married to a von Leutrum.  She was created by the Emperor Gräfin von Hohenheim.  The duke then declared that she should be recognized as duchess, and was accepted as so by the agnates; and after the duke's death she received a duchess's dowage. They had no issue.  [Pütter 316-17]

Bentheim

The small county of Bentheim was wedged between the United Provinces and the vast dominions of the bishop of Münster.  The house of Bentheim became Calvinist under Arnold II.  It split at the death of Arnold III (1606) in the lines of Tecklenburg and Steinfurt.  Of the latter line, Arnold Jobst left two sons, Ernst Wilhelm (1623-1693) in Bentheim and Philipp Konrad (1627-68) in Steinfurt (an enclave in the bishopric of Münster). Ernst Wilhelm married on 22 Aug 1661 at Bentheim castle Gertraut [Gertrud] von [van] Zelst, daughter of Hartger von Zelst, a non-noble, judge in Zellen near Zutphen.   He had by her six sons, the first born 18 Nov 1661 (less than three months after the marriage) of which four reached adulthood.  In a contract passed with his younger brother on 26 Aug 1663, Ernst Wilhelm put in writing a verbal promise to let the county of Bentheim go after his death to that younger brother, and recognized him as his heir.  The only reservation was that he wanted to ensure an appropriate estate for his wife and children after his death, and until such an arrangement could be made with his relatives and the Estates of Bentheim, he assigned to them the nearby castle and bailiwick of Schüttorf.

Then, on 9 May 1665 he declared that his marriage was not morganatic, that he ceded the ownership of his county and lordships to his children, and retained the administration of the same as their tutor.   On 23 Jan 1666, at his request, his wife was raised to the rank of Countess by the Emperor, with the same rank for their issue.  The agnates and the bishop of Munster were not happy with this, however.  In 1668, on the occasion of the burial of Philipp Konrad in Steinfurt, the bishop of Munster Christoph Bernhard von Galen seized Ernst Wilhelm and his wife as they returned to Bentheim and took them with him to Coesfeld, where he pressured them to convert to Catholicism.  Ernst Wilhelm agreed but his wife refused and escaped to the Netherlands with her children, disguised in peasants' clothing.  As it happened, Münster and the Netherlands had been at war in 1665-66, and were again at war from 1672 to 1674 (the hostilities involved France and Cologne).  The peace of Cologne of 22 Apr 1674 included an undertaking by both parties to restore marital unity in the house of Bentheim. 

But Ernst Wilhelm had no intention of returning to his wife and asked the bishop of Münster for a divorce on grounds of abandonment (malitiosa desertio) and obtained it in 1678.  He remarried in 1679 with Anna Isabella von Limburg-Styrum, over the protests of his first wife, but only had a daughter by her.  Gertraut died in 1679, but her sons remained under the protection of the States General of the Netherlands, and, with the help of other Protestant German states, negotiated with their Bentheim cousins.  The emperor appointed a commission in 1687 to examine the matter, and an agreement was reached in 1690 in Bielefeld, whereby the sons of Gertraut were recognized as counts, and were to receive Steinfurt after the death of their father as well as a 1000 Thaler rent on Bentheim, while Bentheim should pass to Ernst Wilhelm's nephew Arnold Moritz Wilhelm.  The current princely house of Bentheim-Steinfurt descends from Gertraut's eldest son Ernst. [Pütter 150-57]

Fürstenberg

Anton Egon (1654-1716) married in 1677 Marie de Ligny (d.1711), daughter of Jean de Ligny, maître des requêtes in France. It is not clear to Moser whether she was considered a princess; their only son died at 8, their three daughters married into the French nobility. [Moser 94]

Isenburg

[Moser 114-118; Pütter 117-121].

The house of Isenburg had split in 1511 between Kelsterbach and Birstein.  Count Anton zu Isenburg-Kelsterbach (1501-60), having three sons by his first wife born Wied, had a second marriage in 1554 to Katharina Gumpel, the daughter of a peasant in Gelenhaar (d. 1559).  According to the Isenburg side, their children (one son Hans Otto and four daughters, one of whom Maria survived) were raised not in the castle but in a separate house in the nearby village, and were never treated by anyone as members of the count's family.  After Anton's death his three sons by his first marriage succeeded (Georg, d. 1577, Wolfgang, d. 1597, and Heinrich, d. 1601) without difficulty, and after them the inheritance passed to the closest relative Wolf Ernst zu Isenburg-Büdingen (1560-1633).

Starting around 1600, Hans Otto (d. 1635) asserted his legitimate birth, then claimed to be a nobleman and then took the title of Graf zu Isenburg and made claims to his father's inheritance in the Reichskammergericht by suing the counts of Isenburg and the bishop of Würzburg (why him, I don't know) (citation, 7 May 1604).  He received assistance in this from Hesse-Darmstadt with whom he made an agreement in 1604.  The Isenburg cousins and the counts of the Wetterau obtained a rescript from emperor Rudolf II against him (9 Nov 1609) forbidding him from using the title of count.  As for the suit in the Kammergericht, count Wolfgang Ernst argued that the existence of the marriage needed to be proven first, and the Reichskammergericht agreed in 1615 to hear Hans Otto's case if he were able to prove his legitimate birth.  Hans Otto chose the archiepiscopal consistorium of Mainz to rule on his legitimacy, a forum which the counts (as Protestants) refused to accept, and which the bishop of Würzburg also recused as being immediate under the papal see.  In any event the consistorium ruled on 15 Dec 1622 that Hans Otto was legitimate.  The Thirty Years War suspended the proceedings, during which time Hans Otto died, leaving three daughters by a noble wife (Margaretha Dorothea von Storndorf).

The proceedings resumed in the Kammergericht in 1651. A preliminary ruling on 4 Feb. 1670 ruled the complaint admissible, but asked for a decision from the Emperor and the Diet on the competence of the Mainz consositorium; in the meantime (ad interim) an execution order (Exekutionsbefehl) was issued in 1672 to the Isenburg-Birstein branch, ordering it to turn over Hans Otto's claimed inheritance to his daughters, in exchange for a surety bond.  The order was stayed at the request of the Isneburg-Birstein counts, but the income was ordered to be paid to the daughters. The case continued to drag until the last daughter died in 1708.

Other examples of unequal/morganatic marriages in the Isenburg family:

Löwenstein

On Nov 13,1738 a Philippine Müller who claimed to be the spouse of a count of Löwenstein was forbidden by the Reichshofrat from using the title of countess of Löwenstein. [Pütter 273]

Carl Ludwig (1712-79), who ruled jointly with his brothers, married on Jan 28, 1742 with Anna Charlotte Deym von Stricicz [Stritez] (1722-93), who bore him 3 sons and 3 daughters.  His brothers wanted to have the marriage declared unequal, and he brought suit against them in the Reichshofrat, which gave two rulings on Jul 16, 1751 and Sep 11, 1752 whose meaning is impenetrable to me, but seem favorable to Carl Ludwig.  The brothers declined to press the matter further and in 1754 Carl Ludwig informed the court that his elder brother had desisted from his objections to the marriage. On his death his son succeeded him [Moser 107-08, Pütter 300-01]  Karl Ludwig's brother Wilhelm Heinrich (1715-73) married in 1751 Anna Marie Konstanze von Wilson, daughter of a Russian officer, but no children were born of that marriage.

Carl (1714-89) had a daughter from his first, equal marriage.  Widowed, he married on Feb 4, 1770 Marie Josephe Stipplin (1735-99), daughter of a former court administrator.  She styled herslef princess of Löwenstein.  There was no issue from the marriage.  [Pütter 313-14]

Podiebrad

Konrad von Oels (1420-92), of the Piast ducal line in Silesia, with Dorothea Reynkenberg (d. 1471), daughter of a coppersmith. [Abt 96, n1]

Heinrich Wenzel, Herzog zu Münsterberg-Oels and Bernstadt (1592-1639) married on 26 Aug 1636 Anna Ursula von Reibnitz (d. 1658).  She was created on 16 Jan 1637 Herzogin von Bernstadt, with the same title and rank for her eventual children, although there was no issue of the marriage.

Lippe

Ludwig Heinrich (1743-94), younger son of the count of Lippe-Biesterfeld, a captain in the imperial army, married on 30 Mar 1786 Elisabeth Kellner (1765-94), daughter of a master-butcher. She bore him a son less than three months later.  He gave his son comital rank and titles at baptism and in the announcement he sent to his agnates, who obtained from the Reichshofrat an injunction on 19 Oct 1786 forbidding his children from bearing name, title or arms of Lippe, and claiming any inheritance (see Journal von und für Deutschland 1787 , 4.Jg.,1.St. , S. 58 online).  By a treaty with all the agnates on May 11, 1787 he renounced any claims and dignities for his issue, in exchange for a pension of 1200 Thaler paid by the head of the Biesterfeld line.  In 1792 she was created Gräfin von Falkenflucht.  Their issue, still extant, bears that title. [Schulze 2:140)].

The house of Schaumburg-Lippe (junior branch of Lippe) had split in 1681 into the lines of Bückeburg and Alverdissen. In the latter line, count Friedrich Ernst (1694-1777) married on Sep 22, 1722 and Philippine Elisabeth von Friesenhausen (1696-1764), a lady in waiting of his mother, in the lifetime of his father.  The issue of this marriage outlived that of the senior branch of Bückeburg (exinct 1777).  The landgrave of Cassel, overlord of the county of Schaumburg, claimed that the marriage was not dynastic, having been contracted with a person of inferior rank without parental consent by an officer of the Hessian army without consent of the landgrave.  The letter of investiture issued by Cassel in 1749, when mentioning the eventual rights of Friedrich Ernst and his issue, inserted the word "able to succeed" (successionsfähige) before the word "heirs of the body in male line".   The count had his wife raised to the rank of countess by the Emperor in 1752 and obtained an imperial mandate (Jul 12, 1753) declaring that the issue of the count would not be hindered from enjoying their inheritance because of the alteration in the text of the letter of investiture.  In 1777 Friedrich Ernst's son Philipp Ernst succeeded and received the investiture of Hesse-Cassel on March 19, 1778.  But in 1787 Philipp Ernst died suddenly, leaving a 3-year old successor Georg Wilhelm, and Hessian troops occupied Bückeburg, but withdrew on orders of the Emperor and the Kreis, and Georg Wilhelm was recognized.  The suits before the Reichshofrat were still pending when Pütter was writing in 1796 [Pütter 267-70; Schulze 2:142-43]

Öttingen

Carl Wilhelm von Öttingen (1544-1602) was the father of three sons who founded the lines of Spielberg, Wallerstein and Katzenstein-Baldern.  His son Wolfgang (1573-98) married in 1593 Johanna von Molle, of simply nobility.  His father reportedly excluded him from the succession for that reason, and required him to make a solemn renunciation in 1597 (documents seen by Boehmer in 1719, and which he describes in his Jur. Eccles. Protest., lib. 4, tit. 9, § 19) .  Moser expresses some skepticism since the whole Wallerstein branch is descended from that marriage.  [Moser 108, Pütter 137-138]

Waldburg

Georg von Waldburg of the Zeil-Wolfegg branch, younger son of Georg IV (d. 1569), married in 1592 Margaretha Kerler in 1592.  He was warned of the consequences and refused to break the marriage; consequently his wife and children were declared (by the agnates?) excluded from the family, and deprived of any rights to name, arms, titles, revenues or share of the inheritance.  [Moser 109-113, Pütter 135-136]

Miscellaneous examples (comital families)

Cited by Abt (96, n1):

19th century examples

Morganatic marriage (1855) and de-morganaticization (1896) in Schwarzburg

The comital house of Schwarzburg had split in the late 16th c. into the two branches of Sondershausen (descended from Johann Günther, 1532-86) and the house of Rudolstadt (descended from Albrecht, 1537-1605).  The senior line was made prince in 1697, the junior line in 1710.  A family treaty of 1713 stipulated reciprocal succession rights of each branch, and semi-salic law in case of extinction of the whole princely family.  They acquired an individual vote at the Reichstag in 1754, joined the Confederation of the Rhine in 1807, and were part of the Deutsches Bund in 1815.  The house of Schwarzburg had very strong equality requirements and consistently maintained them.

By the late 19th c., the house of Rudolstadt had only one living male agnate, the ruling prince Günther (1852-1925), who was childless, while that of  Sondershausen had two, the ruling prince Karl Günther (1830-1909) and his unmarried brother Leopold (1832-1906).  There was also a morganatic relative, namely Sizzo von Leutenberg (1860-1926), son of prince Friedrich Günther (1793-1867) by his second, morganatic marriage on 7 Aug 1855 to Helene Gräfin von Raina [incorrectly spelled Reina by the Gotha] (herself daughter of a morganatic marriage, between Georg of Anhalt-Dessau and Therese Emma von Erdmannsdorf, but adopted by her uncle prince Wilhelm of Anhalt on 1 Aug 1855, and given the title of princess of Anhalt by the reigning duke of Anhalt).  The marriage contract of 24 Nov 1855 specified that the issue of the marriage would not have title and rank of prince or princess, nor title of count/ess of Schwarzburg, but would have succession rights after the extinction of the male line of Rudolstadt (Rehm 1904, 195, 203, 389).  This received the consent of the Rudolstadt agnates, but not those of the Sondershausen agnates, who had succession rights by virtue of the family pact of 1713.  She gave birth to twins Sizzo and Helene on June 2, 1860 and died 4 days later.  They were created prince/ss of Leutenberg in Rudolstadt on 21 June 860.

On April 21, 1896, the three agnates (Rudolstadt and Sondershausen) agreed to recognize prince Sizzo as a full member of the princely house:
"Wir, die Fürsten Karl Günther und Günther und der Prinz Leopold, als die alleinigen gegenwärtig lebenden Agnaten des Fürstlichen Hauses Schwarzburg wollen den Prinzen Sizzo von Leutenberg förmlich und rechtsbestäntidg als einen ebenbürtigen Angehörigen des Mannesstammes Unseres Fürstlichen Hauses hiemit ... anerkennen"
He was then given succession rights, in the following manner: he was to succeed in Rudolstadt in case of extinction of the Rudolstadt line, thus coming before the Sondershausen princes.  Likewise, he was given succession rights to Sondershausen in case of extinction of that branch, after any male agnate of the Rudolstadt branch.  This was given enacted by a constitutional amendment in Rudolstadt on 1 Jun 1896 and another one in Sondershausen on 14 Aug 1896.

In 1909 Karl Günther died and Günther, ruling in Rudolstadt, succeeded in Sondershausen.  On Nov. 22, 1918 he abdicated, after having signed two laws regulating the transfer of power to the local assembly and dissolving the family fideicommis (see the suit brought in 1924 by Sizzo).  Sizzo succeeded as head of house in 1925; he died in 1926 and his only son died childless in 1971, thus bringing the extinction of the house of Schwarzburg.

19th century court cases

Sayn-Wittgenstein (1876-80)

Prince Ludwig of Sayn-Wittgenstein-Sayn (1843-76) married on Dec 6, 1867 in Versoix, Switzerland, Amalie Lilienthal, daughter of a Berlin banker.  The marriage was declared unequal by the head of the whole house of Sayn-Wittgenstein, Alexander of Sayn-Wittgenstein-Hohenstein, as well as by the head of the line of Berleburg line.  Prince Ludwig protested.  After his death, his brother Friedrich (1836-1909) sued the widow in Ehrenbreitstein to forbid her from using the title and arms of a princess of Sayn-Wittgenstein-Sayn.  The court found for the plaintiff and the appeals court in Arnsberg confirmed, as did the Reichsgericht on 7 May 1880.

The court rejected the argument that the plaintiff had no legal standing to bring the suit in civil courts.  Although many aspects of the nobility belonged to public law, the use of titles and arms was a matter of private law and could be the basis of a suit in civil courts, and could be adjudicated separately from the question of the nobiliary status of the defendant (which was a matter for criminal law, under its provisions against usurpation of ranks and titles).  The plaintiff had legal standing as a member of the family.  The court dismissed the defendant's argument that the relevant law was that of the Swiss canton of Geneva, where the marriage took place; laws on the Standesherren applied wherever they might live.

The court had to decide whether the marriage was unequal: the wife was undisputedly a non-noble, and opinion varied as to whether this constituted a mismarriage; however the practice and doctrine since 1742 has been consistently to interpret marriages between upper nobility and non-nobles as "notorious mismarriages".   These rules were maintained in force for the upper nobility by article 14 of the Bundesakt and various pieces of Prussian legislation (Verordnung of 21 June 1815; Instruction of 20 May 1820; law of 19 June 1854; Verordnung of 12 Nov 1855).  The abolition of any difference in political and civil rights between nobility and commonalty by article 4 of the Prussian constitution does not result in making a marriage of the upper nobility with a noble the same as a marriage of the upper nobility with a commoner.  The law applicable to the upper nobility is a singular law protected in international law by the Bundesakt, and its application relies on the customs and laws of imperial times, and the preservation of the concept of equality through Prussian legislation. 

The defendant did not refute the applicability of the house laws of Wittgenstein alleged by the plaintiff, particularly the testament of Ludwig the Elder of 1593, the pact of 26 Nov 1607, and the dispositions introduced by the father of the plaintiff in 1861 and 1862 prescribing that only marriages with the upper nobility would be equal.  The one instance of a marriage with a commoner in the Sayn-Wittgenstein-Berleburg family was not sufficient to disprove the norm.  Her claims that equality mattered only for succession rights and not for titles, and her claims that the title of prince being a 19th c. Prussian grant, norms of earlier times were inapplicable, were also rejected.

( Entscheidungen des Reichsgerichts 2:145)

Hesse-Darmstadt (1884)

Grand Duke Ludwig IV of Hesse-Darmstadt (1837-92) had 5 surviving daughters and 1 surviving son by his first marriage with a daughter of Queen Victoria.  Widowed in 1878, he remarried on 30 Apr 1884 Alexandrina Hutten-Czapska, divorced from the secretary of the Russian embassy Alexander v. Kolemine; but soon decided to divorce. A divorce decree was granted on July 9, but she appealed. The point of law was that the law of Hesse-Darmstadt gave the grand-duke jurisdiction over the dissolution of his own marriage ( Entscheidungen des Reichsgerichts 12:417).  The case is, however, not relevant to the subject of mismarriages.

The Holzappel case (1876-87)

General Peter Melander [=Eppelman in Greek] (1589-1648), who commanded the imperial forces during the Thirty Years War, had acquired Angerort, received from the Count Palatine Lülsdorf, Rantzel, Lohmar, and purchased the Esterau with the bailiwicks of Isselbach and Eppenrod, including Laurenburg.  He was created on 23 Dec 1641 Reichsgraf von Holzappel, and the whole area was made into an immediate territory, and Melander was received in the college of counts of Westphalia.  He was mortally wounded in battle in 1648 and left only a daughter, Elisabeth Charlotte (1640-1708), by his wife Agnes von Effern.  After the general 's death his daughter inherited his county (in spite of a suit by Melander's nephews) and eventually the imperial county of Schaumburg purchased by her mother in 1656.  She married in 1658 Adolf of Nassau-Dillenburg.  By a contract of 1/11 Sep 1690 with prince Viktor Amadeus of Anhalt-Bernburg, she left Holzappel to the youngest of her three daughters, who had married Viktor's son Lebrecht of Anhalt-Dernburg; the same document also specified a rule of succession for Holzappel. 

The county passed by male primogeniture to the last of the Anhalt-Bernburg-Schaumburg line, who died in 1812 leaving four daughters:
The Anhalt estates passed to the eldest branch of Anhalt-Bernburg, but Schaumburg and Holzappel passed to Hermine, and then to her son archduke Stephan.  He in turn made his heir (by testament of 20 June 1859) his first cousin once removed Georg Ludwig of Oldenburg (1855-1939), younger son of Ida's only child. 

In 1876, Georg Viktor of Waldeck-Pyrmont sued Georg Ludwig, claiming that the inheritance was not a free estate which Stephan could dispose of as he wished, but rather an entailed estate, to devolve according to the house laws of Anhalt-Bernburg-Schaumburg, and that consequently he was the next claimant.  Georg Ludwig of Oldenburg denied that the inheritance had formed an entailed estate (fideicommis); and that, even if it had, the entail had ended with Hermine, daughter of the last male of the line, after which the estate could again be freely disposed of.

The questions raised were: whether the county of Holzappel formed a special unalienable, entailed estate in the house of Anhalt-Bernburg-Schaumburg, or an estate subject to the general laws of private princely law; which provisions of those house laws were applicable, in particular in case of extinction of the male line; how to settle the succession among the issue of the three sisters of Hermine, and in particular whether Friederike (who was senior to the plaintiff) had lost her rights because of her unequal marriage.  The court in Limburg found for the defendant, considering that the fideicommis had been dissolved upon extinction of the male line of Anhalt-Bernburg-Schaumburg and the estate was freely disposable.  The appeals court in Frankfurt-am-Main found for the plaintiff, arguing that male primogeniture continued in the lines of each of the sisters.  The High Court confirmed the appellate ruling (19 Apr 1887) and awarded Schaumburg and Holzappel to the prince of Waldeck-Pyrmont.

The court accepted the lower courts' view that the estates formed an entailed estate (mit Fideikommißbelegtes Stammgut) of the family, to pass by primogeniture.  It considered the marriage contract of 1/11 Sep. 1690 as well as all subsequent testaments and compacts of the house, as forming the relevant house laws, whether or not they received imperial confirmation (which, the court thought, was not a prerequisite for their validity).   The contract of 1690 was not merely creating a garden-variety entail, but rather laying down a house law for a family of the upper nobility, setting the rule for the transmission of estates but also of the sovereign power over Land und Leute.  Such rules cannot be considered strictly from the point of view of private law.  The size of the state did not matter in that respect (Holzappel contributed one mounted soldier and one foot-soldier to the imperial army and had no individual vote at the Reichstag).  That the family was effectively mediatized in 1806 changes nothing to the nature of the house laws at the time they were written.  The intentions of the parties to the contract were clear: Prince Viktor Amadeus had himself introduced primogeniture in his states, and Elisabeth Charlotte's intentions to preserve the integrity of Holzappel are spelled out in the contract itself.   The general purpose of entails is to preserve the estate and "splendor" of a family, by which is meant the agnates: thus, when the order of succession in an entail calls cognates after the extinction of the male line, without further provisions, it is unclear whether this means that the entail continues among the cognates, or whether the cognates are merely called to succeed but are free to dispose of the estates.  However, in this case the intention was clearly to prevent the partition and destruction of a territorial entity, for the good of its rulers as well as that of its subjects.  Thus it must be that the cognatic heirs are called collectively to succeed, not simply the daughters of the last male; and the principle of primogeniture laid down as a general rule of succession must carry over to the new lines.  Thus princess Hermine inherited according to the entail, and so did her son archduke Stephan, who was not free to dispose of the estate, and the clauses of his will of 1859 were void.

The court also agreed with the appeals court that the true heir was the plaintiff.   The line of Princess Hermine was extinct; the line of Princess Adelheid consisted of the baroness von Washington.  Although general princely law excluded the issue of notoriously inequal marriages, it did not exclude the spouse.  The plaintiff argued that the laws of Anhalt-Bernburg did, citing §20 of the testament of Viktor Amadeus Adolf of 1752.  The defendant countered that the provision in question applied only to the heir, not to other princes or princesses; he also disputed that the testament had the strength of a house law, but the general consent given by all agnates by pacts of 28 Nov 1756 and 18 Apr 1782 dispelled that notion.  As for the substantive question, whether house laws could deprive mismarried family members of their rights even when the founder of the family had not done so, the court appealed to "recent practice in the German empire" (neuere Reichsobservanz) as well as the power of a family to modify house laws as long as they did not contradict the express dispositions of the founder by doing so.  As to whether the letter of §20 had to be interpreted strictly or not, the case report does not contain the court's arguments.  Finally, the court concluded that the plaintiff was the representative heir of Princess Emma in spite of his being younger than his two sisters, arguing that after cognatic succession male primogeniture naturally reasserted itself as soon as possible, since it had become inherent to the nature of entails (innig mit der Natur des Fideikommisses verwachsen).

( Entscheidungen des Reichsgerichts 18:198).

The Salm case (1890)

Constantin, prince of Salm-Salm (1762-1828) married thirdly in 1810 in the Netherlands Catharina Bender. One of his grandchildren, Alfred Graf von Salm-Hoogstraeten (1867-1919), sued the heads of the house in Prussian courts to be recognized as an agnate.   Alfred lost initially but the appeals court ruled that the introduction of French law on April 10, 1811 in the relevant territories (Anholt and Bucholt) had abolished the legal consequences of mismarriages.  The Reichsgericht (4th Senat, 10 June/10 July 1890) rejected that interpretation, since the marriage had taken place before the introduction of French law, and the plaintiff was born after the restoration of the status quo by the Bundesakt of 1815, notwithstanding an earlier ruling of the Prussian High Court (Obertribunal) in a case where the plaintiff had been born during the period of validity of French law; 21 Dec 1849, Entsch. 19:229).  It also rejected the argument that article 2 of the Rheinbundesakt of 1806, which freed the signatories from the laws of the Holy Roman Empire, extended beyond the elements of public law and international law that defined the relations between the Empire and its constituent states; and in particular that it extended to norms of private law (such as princely law).  On Aug 27, 1841 the Bavarian High Court had reasoned that, even if the formation of the Confederation of the Rhine had abolished rules on mismarriages as asserted by some authors, article 14 of the Bundes-Akte had restored them (Blätter für Rechtsanwendung 11:268; see also RGZ 26:145).

(Seuffert's Archiv neue Folge 16 (=46): 261)

The Löwenstein case (1887-1893)

Wilhelm von Löwenstein-Wertheim-Freudenberg (1863-1915) had married on 25 Nov 1887 Luise von Fabrice.  Her family was clearly of the lower nobility, although there was disagreement on whether a grant of 19 Nov 1644 had raised the family to the rank of immediate nobility of the Empire with rank of baron.  His brother Ernst (1854-1931), as head of the family, refused to recognize the marriage as equal.  Wilhelm sued, Ernst countersued.  The court in Mosbach accepted the complaint and rejected the countersuit; Prince Ernst lost on appeal and on Revision (cassation) on 5 Dec 1893. 

The appeals court in Karlsruhe considered that the specific exclusion of the equality requirement from the confirmation of the house law by the Emperor in 1770 meant that this requirement, as a restriction beyond the common law of the time, could not be considered valid; the Emperor reserved for himself the final word in such cases.  Since 1806 there was no Emperor to make such a decision, but this fact only meant that the primogeniture law could not deviate from the common law of the time.  The court also argued that the prince who instituted the primogeniture must have preferred a primogeniture without strict equality requirement to none at all.  As for the content of the common law of the time, the court decided that it did not make marriages between the upper and lower nobility mismarriages; otherwise it would be inconceivable that so many eminent jurists of the time (such as Moser) held otherwise, that attempts in house laws to have such marriages declared mismarriages were so often rebuffed by the emperor, and that so many unequal marriages in the upper nobility were nevertheless dynastically valid.  The court cited two earlier cases affirming the doctrine that marriages with the nobility were not unequal in common law: one case between count Franz Carl Albrecht zu Wittgenstein-Sayn and the princes Albrecht zu Wittgenstein-Berleburg and Alexander zu Wittgenstein-Hohenstein in the courts of Arnsberg (22 Dec 1841) and Münster (21 Feb 1844) as well as the appeals court (Ober-Tribunal) in Berlin (May 1845), which upheld the lower courts' rulings and stated that "als ein ausgemachter Grundsatz des deutschen Privatrechts kann nur soviel angenommen werden: daß die Ehe einer Person von hohem Adel mit einer bürgerlichen für eine Mißheirath zu achten sey; nicht aber daß ein Gleiches auch bei den Ehen unter Personen des hohen und niedern Adels anzunehmen sey."  The Bavarian High Court (bayerische oberste Gerichtshof) ruled similarly on 27 Aug 1841 in an unnamed case (Seuffert, Blätter für Rechtsanwendung 11:166-68, 267-71).

(Entscheidungen des Reichsgerichts 32:147)

Cases I have to track down

4. Morganatic marriages

A morganatic marriage (morganatische Ehe,  Ehe zur linken Hand, matrimonium ad legem morganaticam, ad legem salicam) is a particular type of marriage, in which the contract itself deprives spouse and/or children of some or all of the rights they would normally enjoy to name, rank, coat of arms, fiefs, estates and other property.

4.1 Origins of the institution

The institution of morganatic marriage derives from Lombard feudal law.  Specifically, it is found in the Libri Feudorum, a compilation of existing feudal law in Northern Italy, begun in the second half of the 12th c. and completed by the 13th century.  The Lombards were a tribe that occupied Northern Italy from the 6th to the 8th c. and established a kingdom with its capital in Pavia.  In 774 Charlemagne conquered Lombardy and became its king.

The relevant passage in the Libri Feudorum (LF) is:

"Quidam habens filium ex nobili conjuge, post mortem ejus non valens continere aliam minus nobilem duxit.  Qui nolens existere in peccato eam desponsavit ea lege, ut nec ipsa, nec filii ejus amplius habeant de bonis patris, quam dixerit tempore sponsaliorum, verbi gratia decem libras vel quqantum voluerit dicere, quando eam sponsat, quod Mediolani dicitur `accipere uxorem ad morganaticam' alibi `lege Salica';  Hic filiis ex ea susceptis decessit.  Isti in proprietatem non succedunt aliis exstantibus, sed nec in feudo, etiam aliis non exstantibus, qui licet legitimi sint, tamen in beneficio nullatenus succedunt.  In proprietate vero succedunt patri prioribus non exstantibus, succedunt etiam fratribus sine legitima prole decedentibus, secundum usum Mediolanensem." (II Libri Feudorum 29, in Karl Lehmann: Das Langobardische Lehnrecht. Göttingen 1896; Dieterich; p. 160; see also II LF 26 §16, ibid. p. 152).

The traditional etymology of the term "morganatic" is the word Morgengabe (murgencap in the old texts), which designates the dowry given by the husband to the wife on the first morning (Morgen) of their marriage, and which is her full property.  The idea is that, in a morganatic marriage, the children's claims are limited to their mother's Morgengabe. The text of the law mentions that the term is Milanese.  The jurist Odofredo, in his commentaries on the civil code, notes that the Italian word for Morgengabe is murganale.  However, Lehmann in his edition of the Libri Feudorum, says that the morganatic marriage is not mentioned in the book of customs of Milan.

Feudal law, particularly as codified by Italian jurists in the Libri Feudorum, was one of the sources of German law along with the whole corpus of Roman law, from the late medieval period.  Some writers (Dalchow 1906) insist that the concept of morganatic marriage is purely Lombard and Italian, and that in its application in German law it became identical with unequal marriage, but that seems very doubtful.

Morgengabskinder are mentioned in the laws of Freiburg (Stadtrecht Freiburg 1520, 3. Traktat, 4. Tit., 8).  They are children of a first marriage who are in effect adopted by their step-parent upon second marriage of their parent.

A morganatic marriage can only be contracted when the law permits it, because it is essentially a deviation or exception from the normal laws governing marriages.  The upper nobility's ability to contract such marriages (i.e., to have them enforced) was enshrined in the imperial electoral capitulation of 1790.  The lower nobility could contract morganatic marriages only where local law allowed this form of marriage, such as Prussia, see below (Häberlin 1793, 8).

4.2 The purpose of the institution

A morganatic marriage could serve a number of purposes.

A general purpose was to maintain the "lustre" of a noble family, and specifically to limit the number of claims that could be made on the patrimony by children of various spouses.  The idea was that membership in a certain state or rank carried with it the obligation to maintain a commensurate lifestyle; if the patrimony were divided equally among all children, none would be able to hold their station in an appropriate manner.  Thus some of the children were of lower rank, and had fewer or no claims on the patrimony, at least as long as the older children were still alive.

Adolph Friedrich, duke of Mecklenburg specified in his will (1654) this his sons who could not marry richly enough should contract morganatic marriages: "Da aber ihrer (der jungen Söhne) einer order der andre sich verehelichen wollte, sollen sie darinne, nächst vorhergehender Anrufung Gottes, vorsichtig und mit ihrer Brüder und anderer nächst angehöriger Freunde Rath verfahren, und etwa auf solche Oerter und Personen gedenken, da sie eine ansehnliche Mitgift oder Land und Leute erlangen, und unser fürstlich Haus damit vermehren mögen.  Würde es aber ihnen an solcher Gelegenheit sich zu vermählen ermangeln, wollen wir lieber, daß sie mit einer herlichen züchtigen Jungfer Privatstandes in eine solche christliche Ehe welche man nennet matrimonium ad morganaticam contractum, sich begeben und darinne keuch und züchtig leben, als sich mit unkeucher Brunst quällen sollen.  Wenn eine solche Ehe zur linken Hand aber noch bey Lebzeiten einer rechtmäßigen Gemahlin heimlich vollzogen wird, so ist sir nichtig, und der ganze Handel ist als ein fortgesetzter Ehebruch anzusehn." (cited by Hofmann, 230).

Another purpose relates the morganatic marriage to the Gewissensehe (mariage de conscience, mariage secret) which is a secret marriage between a man and his mistress, meant to assuage his conscience without causing scandal.  Morganatic marriages were not secret, but they could be a way to allow a man to sanctify in the eyes of the Church a relation which he already has or will have, without prejudice to children of an earlier marriage or to relatives in general.

To illustrate this motive, here is a passage from a Hessian chronicle describing the promise made by landgrave Otto of Hesse (d. 1328) to his children in 1311, should his wife Adelheid von Ravensburg (who, in fact, survived him) die before him: "He sprach auch, werss sache, das syne huss frauw Alheid todes halber abginge, so he dan nicht kuschlichin synen wedeman stad gehaltin mochte, so en wulde he auch nicht in eyme sündigen leben von godde fonden werden.  Aber er enwulde Keynss Fursten, Herrn, noch Graven tochter nemen, uff das durch die tzweyerley Kyndere das lant nicht verdeylt worde, sundern he wulte eyne frumme jung frauwen uss siner ritterschafft zu der ee nemen, unde ob he mit der kindere gewonne, die wulte he mit gelde unde leenschafft unde andern gutern wole versorgen, so das der Furstenthum bynander bliben sulte.  Alsus schribet Johan Ritessel in siner Chroniken." (Cited by Dalchow 1906, 424).

Several morganatic marriages fit the pattern of an aged widower with enough children to ensure the succession: Baden-Durlach in 1621, Hesse-Rheinfeld in 1690, Prussia in 1824.

For some authors (Dalchow 1906, 423) the purpose of a morganatic marriage is to mitigate the legal consequences of a mismarriage by specifying in advance the state, rank, and dowry (Morgengabe) of the spouse and issue.  I find this difficult to believe, since it would imply that the individual had the autonomous power to prevent the application of laws and customs on mismarriages.

4.3 Can an equal marriage be morganatic?

Most jurists considered that a morganatic marriage could take place between persons of equal rank. Hofmann cites the example of Nicola III of Ferrara and Ricciardia of Saluzzo in 1431.

Contra:

In the late18th c. it was already a subject of dispute, whether the local nobility could enter into morganatic marriages: Hofmann cites Strecker (1747)  and Naeve (1702) in the affirmative, but Estor (1751) and Cramer (1738) thought that they could not unless specifically authorized a by law or the prince.

Morganatic marriages in Prussian civil law

The Allgemeines Landrecht für die preußischen Staaten (ALR) was published in 1794, as a uniform code of civil and penal law for the Prussian states (which already included territories in western Germany, along the Rhine).  Part 2, title 1, section 9 is entirely devoted to morganatic marriages. It contains almost a hundred articles (II 1 §§ 835-932), dealing with the conditions for contracting such marriages, procedures, the contents of the contract, provision for the wife's support, rules over property, dissolution by death or separation, conversion into full marriage.

Although devoting a substantial section to this institution, it was the drafters' intention to restrict its use as much as possible.  Specific requirements are set forth, the direct approval of the sovereign (Landesherr) was required (such approval had been required for morganatic marriages since a constitution on betrothals and marriages of Dec 15, 1694, art. 13;  see the Corpus Constitutionum Marchicarum I.II.LVIII, p. 117; the previous draft of the code, the Allgemein Gesetzbuches suspended in 1792, had only required approval of the local court or Landesjustizcollegium).

§836. Dergleichen Ehen sind in der Regel nicht zulässig; vielmehr erforden sie allemal, wenn sie statt finden sollen, die unmittelbare Landesherrliche Erlaubniß.
§837. Diese Erlaubniß kann nur von Mannspersonen höhern Standes, in außerordentlichen Fällen, und aus erheblichen Gründen nachgesucht werden.
§838. Zu den erheblichen Gründen gehört besonders, wenn der Mann nicht Vermögen oder Einkünfte genug besitzt, um eine Frau und Familie standesmäßig zu ernähren und zu versorgen.
§839. Ferner, wenn er durch eine zweite standesmäßige Heirath das den Kindern erster Ehe bestimmte Familien-Vermögen zu sehr zu belasten order zu schmälern besorgt.
§840. Die Richtigkeit dieser Gründe muß sofort bescheinigt, oder gehörig untersucht werden.
§841. Die Beurtheilung ihrer Erheblichkeit aber bleibt dem höchsten Landesherrn allein vorbehalten.
There is, however, no requirement that the spouse be unequal.  On the contrary, article 839, which names a possible justification for a morganatic marriage, presumes that the proposed second marriage would be equal, since the point of making the second marriage morganatic would be to avoid diminishing the share of children from the first marriage.  Likewise, article 910, on the conversion of a morganatic marriage into a full marriage, requires the agreement of both parties, and,   "wenn eine gänzliche Ungleichheit des Standes obwaltet," that of the closest relatives.  Clearly, then, morganatic marriages in Prussian law could be contracted between equal spouses.

Vogt (1856, 156) says that the institution of morganatic marriage was rarely used in Prussian lands.  He found only three petitions for morganatic marriages in the Geheime Archiv: One should note article 30 of the same title:
§30.  Mannspersonen von Adel können mit Weibspersonen aus dem Bauer- oder geringerem Bürgerstande keine Ehe zur rechten Hand schließen.
This declared that the marriage of a nobleman with a woman of peasant or "lower burgher" rank was necessarily a mismarriage.  But the "lower burgher state" does not include public employees, graduates, artists, merchants, industrialists, and those who enjoy a similar consideration in society (§ 31) and a dispensation for an unequal marriage can be granted by the provincial court, as long as the three closest relatives of the same name and state agree; in case of dispute among relatives the sovereign decides (§ 32-33).  Interestingly, these provisions did not apply to noble women marrying unequally (rescript of June 13, 1810, ALR, Mannkopf edition, 1837, 3:9), so a noblewoman could marry unequally and her children would be noble.
§31.  Zum höheren Bürgerstande werden hier gerechnet: alle öffentliche Beamte, (die geringeren Subalternen, deren Kinder in der Regel dem Canton unterworfen sind, ausgenommen) Gelehrte, Künstler, Kaufleute, Unternehmer erheblicher Fabriken, und diejenigen, welche gleiche Achtung mit diesen in der bürgerlichen Gesellschaft geniessen.
§32.  Zu ungleichen Ehen eines Adelichen kann das Landes-Justiz-Collegium der Provinz Dispensation ertheilen, wenn der, welcher eine solche Ehe schliessen will, nachweiset, dass Drei seiner nächsten Verwandten desselben Namens und Standes darein willigen.
§33.  Kann er dergleichen Einwilligung nicht beibringen, oder findet sich von Verwandten, die mit den Consentirenden gleich nahe sind, ein Widerspruch, so kann die Dispensation nur von dem Landesherrn unmittelbar ertheilet werden.

Articles 30-33 above were abolished by a law of Feb. 22, 1869:

Wir Wilhelm etc verordnen, mit Zustimmung beider Häuser des Landtages der Monarchie, was folgt :

Einziger Artikel.
Das Eheverbot wegen Ungleichheit des Standes ($30 bis 33, Titel I, Theil II des Allgemein Landrechts) ist mit allen seinen Folgen aufgehoben.  Ehen, welche diesem Verbote zuwider geschlossen sind, bedürfen zu ihrer Gültigkeit der nochmaligen feierlichen Vollziehung nicht.

Urkundlich unter Unserer Höchsteigenhändigen Unterschrift und beigedruckten Königlichen Insiegel.
Gegeben Berlin, den 22 Februar 1869.

(L.S.) Wilhelm
Gr. v. Bismarck-Schönhausen. Frhr v. d. Hendt. v. Roon. Gr. v. Itzenplitz. v. Müller. v. Slchow. Gr. zu Eulenburg. Leonhardt.

Morganatic marriages in other civil laws

There seems to be at least one other local law that allowed morganatic marriages, in Saxe-Coburg-Gotha (the Gothaisches Ehegesetz of 15 Aug 1834, § 27; cited by Stobbe 1882, 4:47, n9).

Conversely, it seems that Bavarian law by default considered morganatic marriages to be no different from any other marriage, in the absence of specific customs or statutes: "matrimonia ad morganaticam, oder andere dergleichen Mißheyrathen zwischen Personen ungleichen Standes, werden ohne Unterschied, ob die Antrauung zur linken oder rechten Hand geschehen ist, nicht nur quoad effectus ecclesiasticos, sondern auch civiles für wahre Ehe geachtet, so weit nicht durch besondere Gedinge, Herkommen oder statuta, ein anders versehen ist" (Wiguläus Xaver Aloys Freiherr von Kreittmayr: Compendium Codicis Bavarici 1768,  I 6 § 45, p. 31).

Likewise, the code of civil law of the kingdom of Saxony did not allow for morganatic marriages, at least as far as the rank of the spouse was concerned (das Bürgerliche Gesetzbuch für das Königreich Sachsen, 1883):

§1632.  Die Ehefrau erhält den Familiennamen des Ehemannes und nimmt an dem Stande desselben Theil.

§1692.  Die wesentlichen persönlichen Rechtsverhältnisse der Ehegatten können durch Ehestiftungen nicht aufgehoben oder beschränkt werden.

§1748.  Die Ehefrau behält nach der Scheidung den Familiennamen und den Stand des Ehemannes.

4.4 Disappearance of the institution (after 1900)

The general remarks made above about the introduction of the BGB apply here.  In particular, the BGB does not mention morganatic marriages anywhere, and this has been taken to mean that the institution, to the extent that it still existed in general civil law, was abolished.  A marriage either was or wasn't valid, and if it was, it had in general full effect. 
(art. 4 of the Prussian constitution of 1850, and §39 of the Imperial law of 6 Feb 1875)

But the effect of the Einführungsgesetz was to preserve morganatic marriages from this general "abolition by omission", but only for members of the categories singled out in articles 57 and 58 (the upper nobility).

5. Examples of Morganatic Marriages

Table of contents


Abt (100, n2) cites an early example, that of Johann Graf von Diepholz (d. 1545) who married morganatically in 1525 Kunigunde Somders [or Benting, born Sander, according to Europäische Stammtafeln XVII.131A], with an explicit contract to that effect.

Anhalt

Leberecht (1669-1727) of Anhalt-Bernburg, who founded its junior line of Hoym (later Schaumburg-Hoym) married first a princess of Nassau, by whom he had a son who inherited from his mother Schaumburg and Holzpafel.  Widowed in 1700, he was serving in the Netherlands when he fell in love with Eberhardine Jacobine Wilhelmine von Weede, daughter of baron Johann Georg von Weede, governor of Grave (created a baron by the Emperor in 1675; a Protestant himself, but married to a Catholic who raised their daughter in that religion).  By contract of 23 Feb 1703, he explained that after the death of his wife he had wished not to remarry so as not to diminish the house of Anhalt through further partitions; but he had found a way to reconcile his conscience with this intention by marrying a person who only looked for companionship in marriage and had no desire for the princely rank and its advantages.  Remarriages with persons of unequal rank after a first equal marriage leaving posterity were not unusual in Germany, and under these conditions he had obtained the consent of his father and step-mother to this marriage.  The contract, signed by a notary and two witnesses, specified that the baroness von Weede would not usurp the rank of princess of seek to be raised to that rankm but should remain in the rank of a baroness under the name of "Baroness von Bäringen", and never use the name, title or arms of Anhalt for herslef.  A sum of 45,000 Thaler was set for her upkeep and that of her children, which would be used to purchase a suitable estate.   Should she die without heirs, or at the extinction of her issue, the sum or the estate purchased with it would return to her husband and his heirs.  Of the Anhalt house she and her children were only allowed to use a crowned bear without the crenelated wall.

This contract notwithstanding, Leberecht sought and obtained from the Emperor her elevation under the name of Gräfin von Weede with style of "Hoch- und Wohlgebohren" and new arms (1 Aug 1705).   Leberecht's stepmother fought in vain to have this elevation reversed.  The countess von Weede bore her husband three sons (who died without issue, although the two surviving sons obtained the bailiwick of Zeiz at the death of their father) and three daughters, one of whom married landgrave Wilhelm von Hesse-Philippsthal, the other prince Christian von Schwarzburg-Sondershausen. [Pütter 223-27]

Baden

Margrave Georg Friedrich zu Baden-Durlach (1573-1638) had eighteen children by his first two marriages.  Widowed a second time, he married in 1621 Elisabeth Stozin [Stotz, Stolz] daughter of his bailiff (Amtsmann) Johann Peter Stotz in Stauffenberg, under the condition (29 Jul 1621) that she and her children from that marriage should be content with the revenues assigned to them.  The only child of that marriage died young.  The margrave resigned the government of his lands to his son in 1622.  She died after 1652. [Moser 61, Pütter 140-41]

Baden/Hochberg (1787)

(Source: Schulze, Hausgesetze, vol. 1, p. 165-69)

Carl Friedrich of Baden married first in 1751 Caroline Luise von Hessen-Darmstadt, by whom he had three sons.  On Nov 24, 1787 he married Luise Caroline Freiin Geyer von Geyersberg, member of an old family of the imperial nobility, immatriculated as imperial knights.  Her father was Obristlieutenant (in the armies of Baden) Ludwig Heinrich Philipp Freiherr Geyer von Geyersberg, her mother Maximiliane Christiane, born Gräfin von Sponeck.  The same day he published a proclamation (Versicherungsurkunde) on the rank, title, Morgengabe, pension and dowage of his future spouse, on the title and arms of the daughters to be born of that marriage; on the titles, arms and the upkeep of the sons to be born and on their succession rights in case of extinction of the male line of his house.   The name of his spouse as well as daughters was appointed to be Freiin von Hochberg.  Oon the subject of the sons he reserved further decision which took place by a disposition of Feb 20, 1796.The document was signed by the two eldest sons of the margrave; the third son, absent at the time, later signified his agreement.

The disposition of 1796 explained further that the marriage should "in no way be seen as morganatic, but rather as a true equal marriage". The sons were to hold the rank of counts under the name of Grafen von Hochberg, bear the arms of Baden-Hochberg; they were to be called to succeed in all his princely estates by primogeniture after the complete extinction of his male issue from the first marriage.  In May 1796, Emperor Franz II conferred the imperial title of Gräfin von Hochberg on the margrave's wife.

After the dissolution of the Holy Roman Empire, the now-grand-duke Carl Friedrich published a succession act on Sept. 10, 1806 reiterating the rights of his sons by his second marriage; the act was signed by all living agnates (namely, his three sons).   On Oct. 4, 1817 his grandson and successor Carl confirmed the succession rights of his half-uncles and raised them to the rank of princes and margraves of Baden with style of Serene Highness (Hoheit), with the arms of Baden; he also raised his half-aunt Amalie to the rank of princess of Baden and gave her the arms of Baden.

This settlement of the succession raised immediate difficulties.  The reason is that, in the final act of the Congress of Vienna of 1815, both Bavaria and Austria were given reversionary rights to certain territories given to Baden: namely part of the Upper Palatinate and the Breisgau.  The reversion to Austria was unspecified, but that to Bavaria was to take place upon the extinction of the line issued from the reigning Grand-Duke (which, at the time, was expected to become extinct with his death).  After the grand-duke proclaimed that Baden was impartible, and that it would go to his half-uncles, Bavaria and Austria were understandably unhappy, and testy letters were exchanged in 1818 (see the texts in Klüber's Acten des Wiener Congresses, vol. 8, 1818).  In the end, however, the disputes were settled by treaties signed in Frankfurt on July 10, 1819, whereby Baden ceded part of Wertheim (a territory enclaved within Bavaria) to Bavaria, and the succession as settled in 1817 was recognized by Bavaria and Austria.  The arrangement was included in the Territorialrecess of Frankfurt of July 20, 1819, which settled within-Germany boundaries left unsettled in 1815.

The Sponheim controversy

Nonetheless, another controversy arose between Bavaria and Baden soon afterwards.

Since 1425, Baden and the Palatinate held the county of Sponheim in condominium, with reciprocal succession rights in case of extinction of either house.  In 1801 the left bank of the Rhine (where Sponheim was located) was formally ceded to France, and the Reichsdeputationshauptschluß of 1803 specifically assigned to Baden lands as compensation for the lost portions of Sponheim (§. 5) and declared that, in general, succession rights were transferred to the compensating lands (§. 45).  In 1827, Bavaria asserted its claims to those lands in case of extinction of the male issue from the first marriage of the margrave Carl Friedrich, saying that it recognized the succession of the issue of the second marriage to the grand-duchy of Baden, but not to the lands serving as surrogates for Sponheim.

See the bibliography on the Sponheim controversy.

Bavaria

Ferdinand of Bavaria (1550-1608), younger son of duke Albrecht V, had followed his father's instructions to abstain from marrying except under specific circumstances, but at the age of 38 he found celibacy less endurable and resolved to marry Marie Pettenbeck .  A contract with his family (Sept. 23, 1588; ratified by the Emperor Feb. 16, 1589; see text in see Lünig, Part. spec. cont. II, s.v. Pfalz, S. 150) specified that he would retain his annual allowance of 35,000 Fl, but his sons would receive only 2,000 Fl (3,000 if there was only one) and his widow 2,000Fl. Only in case of complete extinction of the issue of Ferdinand's older brother duke Wilhelm, and in the absence of an issue by an equal marriage of Ferdinand, would the issue of that marriage be able to succeed in Bavaria.  The issue, titled counts of Wartenberg, married with old comital families (Hohenzollern, Sayn) and became extinct in 1736.  Had they outlived the issue of Wilhelm (which became extinct in 1777) they should have preceded the Palatine branch of the Wittelsbach and inherited Bavaria; however, the peace of Westphalia (treaty of Osnabrück, art. 4, §9) specified that the electoral dignity of Bavaria and the territories of Bavaria (Oberpfalz) would pass to the Palatine branch upon extinction of the "Wilhelmische Linie" (meaning the descendance of Wilhelm V), thus ignoring the rights of the Wartenberg.  [Pütter 121-125; Schulze 1:236]


Brunswick

The sons of Magnus of Brunswick divided the lands between themselves: Bernhard received Lüneburg, Heinrich received Brunswick, Calenberg and Hanover.  Heinrich's line became extinct in 1634.  Bernhard's line split in 1569 between the two lines that ultimately became the ducal line of Brunswick-Wolfenbüttel and the royal line of Hanover.

Brunswick-Harburg/Campen (1525)

A succession of only sons leads from Bernhard to Henrich (1468-1532) who had three sons Otto, Ernst and Franz.  Heinrich, who advocated the election of François I of France as Emperor, and who got involved in an internal war (the Hildesheim feud), was placed under the ban of the Empire in 1520 and forced to flee to France.  On 22 July 1522 he turned over the government of his lands to his three sons, the youngest of whom was a minor.

In 1524, Otto of Brunswick-Harburg (1495-1549) the oldest of the brothers, ceded his claims to the government of the principality in exchange for the bailliwick of Haburg and an annual rent of 1500 Gulden.  He married in 1525 Metta (Mechtild) von Campen [Campe], the daughter of Hans von Campe auf Isenbüttel, a nobleman of Brunswick, and Hille von Hodenberg.  In 1527 he agreed to a contract with his brother specifying that her Morgengabe should be 400 Gulden, that she would not be styled as "Herzogin" but as "des Herzogs liebe Vertraute" (as a widow, she referred to herself as "Metta seligen Hertogen Otten tho Brunswick und Lüneborg nachgelatene Wedeme"); that the sons of that marriage would have no succession rights and the daughters no claims to any dowries or princely support; but instead they would receive a one-time payment of 3000 Gulden for the sons, 1500 Gulden for the daughters.  Otto renounced on behalf of his heirs to the principality at least until extinction of the male issue of his brothers, reserving their rights in that case.

Nevertheless, at his death in 1549, his only surviving son Otto II claimed not only Harburg, but also 1/3 of the Luneburg lands and 1/5 of the Giffhorn lands (of Heinrich's youngest brother Franz, who had died without male heirs in 1549).  After 11 years of dispute, a settlement in 1560 with his cousins Heinrich and Wilhelm (sons of Ernst, founders of the lines of Wolfenbüttel and Lüneburg/Hanover respectively) left him Harburg and Mosburg, in exchange for a renunciation to any claim on the rest of the principality, with the same reservation in case of extinction of the male line of his cousins.   Otto married twice (Schwarzburg and Ostfriesland) and has many children, but the line of Harburg died out with the last of Otto's sons in 1642 (although one of Otto's sons Otto Heinrich (1555-91) settled in the Netherlands, married Marie de Hénin-Liétard and had one son Karl who left further male issue down to the 18th c.).

Abt (1911, 100 n2) disputes that this was a morganatic marriage, on the grounds that Otto had renounced his claim to the principality and settled for an annual income of 2000 Gulden before ever meeting Metta von Campe (he cites H. Hoogeweg: 'Die Heirat Herzogs Otto des Älteren mit Metta von Campe' Zeitschrift des Historischen Vereins für Niedersachsen 1900, 249-281).  He also notes that Otto II married into the high nobility, as did every one of his children who did marry.

[Pütter 91-102]

Brunswick-Celle/d'Olbreuse (1675)

Source: Schulze, Hausgesetze, vol. 1, pp. 398-405. ADB 8:635.  Pütter 157-58.
Background on the house of Brunswick-Lüneburg
The middle house of Brunswick-Lüneburg (after 1634 the only surviving branch of the house of Welf) issued from Ernst (d. 1546) split in 1569 into the elder line of Brunswick, descended from Heinrich zu Dannenberg (which became the ducal line of Brunswick-Wolfenbüttel, extinct in 1884), and the younger line of Lüneburg, descended from Wilhelm zu Cella or Celle (which became the electoral, later royal line of Hanover).

Wilhelm left in 1592 seven sons, who did not wish to split the patrimony and agreed not to do so in a family compact of 1610.  They also decided that only one of them should marry, and the lot fell to the next-but-youngest of them, duke Georg.  The brothers succeeded each other in ruling Celle: Ernst (d. 1611),  Christian (d. 1633), August (d. 1636; who married (according to Moser) Ilse Schmidigen [Schmiedichen], daughter of a bailliff of Ebstorff; but others have the issue of the marriage, which took the surname von Lüneburg, as illegitimate issue), Friedrich (d. 1648).  In the meantime, when the senior line of the house of Welf died out in 1634, the principality of Calenberg (which should have been united to Celle under the terms of the pact of 1610) was given to Georg.

Georg died in 1641 before his turn to rule Celle came up.  He left four sons: Christian Ludwig (d. 1665 without issue), Georg II Wilhelm (1624-1705), Johann Friedrich (d. 1679 without male issue), and Ernst August (1629-98).   He also left them an unusual will.  He instituted the rule that Celle (which his sons were due to inherit from their unmarried uncle Friedrich) and his own principality of Calenberg should never be united, as long as there were two males left in his issue.  Moreover, he laid down the rule that the elder male should have the right to choose which of the two principalities he wished to rule.

His eldest son Christian Ludwig succeeded him in Calenberg, and in 1648, when uncle Friedrich died, he exercised his right to choose and took Celle for himself along with Lüneburg and Grubenhagen, leaving Calenberg and Göttingen to his younger brother Georg Wilhelm.  The other two youngest brothers took up residence in Celle and Hanover respectively.  Georg Wilhelm, who liked to travel, became engaged in 1656 to Sophia, youngest daughter of the Palatine Elector; but the engagement was broken off in 1658, and Sophia instead married Ernst August, the youngest of the brothers, who was due to receive Osnabrück under the alternating arrangement created for that bishopric by the peace of Westphalia (he did so in 1662).  At the time, the other brothers were unmarried, and Georg Wilhelm promised Ernst August that he would never marry, so that all family lands could be reunited at the next generation.  This promise, made on April 11, 1658 (the text is reproduced in the Memoirs of Electress Sophia) was merely replicating the pact between the brothers at the previous generation.

When the eldest Christian Ludwig died in 1665, a dispute arose when Georg Wilhelm decided to exercise his right to choose Celle, and the 3d brother Johann Friedrich.  An agreement was reached in 1665 at Hildesheim, whereby Georg Wilhelm received Celle, Diepholz, Hoya, Schauen and Walkenried [the last two received at the peace of Westphalia], and Johann Friedrich took Calenberg, Göttingen and Grubenhagen; the three surviving brothers also decided to abolish the right to choose created by their father's will.  Schauen was ceded to the prince of Waldeck in 1680.  In 1689, upon the extinction of the house of Saxe-Lauenburg, Georg Wilhelm took possession of Lauenburg as president of the circle of Lower Saxony under the pretext of forestalling threats to the public peace from the various contestants, and later in his own name on the basis of a family pact of 1369 (the claims of electoral Saxony were bought off in 1697).

When the 3d brother Johann Friedrich died in 1679 without male issue, his estates passed to the youngest brother Ernst August.  Ernst August, in 1683, obtained the consent of his older brother Georg II Wilhelm to the introduction of indivisibility and primogeniture by testament of 1683, approved by the Emperor on July 1, 1683 (thus putting an end to the provisions of Georg's will of 1641). On Dec 9, 1692 Ernst August was raised to the rank of Elector by the Emperor.  With the death of Georg Wilhelm in 1705 all estates of the house of Brunswick-Lüneburg were again united in the hands of Ernst August's son, never to be separated again.

the marriage
Georg II Wilhelm  had promised Ernst August that he would not marry.  However, on one of his travels he met Eléonore Desmier d'Olbreuse (1639-1722), daughter of Alexandre Desmier d'Olbreuse (a nobleman from Poitou), and Jacqueline Poussard de Vaudré.  Eléonore attended the princess of Tarento, wife of Henri-Charles de La Trémoille, a Protestant who had emigrated to the Netherlands during the Fronde.  After Georg Wilhelm won Celle, he decided to bring Eléonore to his court, which he did with the help of his sister-in-law the wife of Ernst-August.   On November 11, 1665 he renewed his promise to never marry but also swore eternal faithfulness to Eléonore, gave her the style of Frau von Harburg, established for her an annual income of 2,000 Thalers and a dowage of 6,000 Thalers, all with the approval of Ernst August who probably saw this arrangement as precluding an equal marriage.   Contemporaries were aware of the arrangement which was called a "conscience marriage" (Gewissensehe). They had only one surviving child, a daughter born in 1666.  In 1674 Eléonore was created Gräfin von Harburg and her daughter Gräfin von Wilhelmsburg by the emperor.  Finally, on Aug 22, 1675, Georg Wilhelm formally married Eléonore, with the consent of Ernst August as well as that of Anton Ulrich, duke of Brunswick-Wolfenbüttel, of the elder line.  The two kinsmen also signed the marriage contract.  The contract stipulated that the wife should not use the title of duchess of Brunswick; that the issue of the marriage would be considered legitimate and entitled to the title and rank of imperial count, until it should receive greater dignities from the Emperor; and that it would have no claims to succeed in the principality as long as a living male heir of the line of Brunswick-Lüneburg still exists.  There was also a clause that the daughter, Sophia Dorothea, would use the title of duchess of Brunswick if she should marry into an altfürstlich house.

Their only child, Sophia Dorothea (1666-1727), was soon after engaged to her cousin August Friedrich of the elder line of Wolfenbüttel, but was killed in battle in 1676.  She ultimately married in 1682 her first cousin Georg Ludwig of Hanover, son of Ernst August, and accordingly took the title of duchess of Brunswick in her own right.   Georg Ludwig became in 1714 king George I of Great Britain. Their male-line descent includes the kings of Great Britain to 1837 and the royal house of Hanover (male and female-line descendants include almost every royal family in Europe).  The marriage ended tragically Sophia Dorothea's lover, Philipp Christoph Graf von Königsmarck, was murdered on July 1, 1694 and she was locked up in the castle of Ahlden for the rest of her life; the marriage was dissolved on Dec 28, 1694.

See Adolf Köcher: 'Denkwürdigkeiten der zellischen Herzogin Eleonore, geb. d'Olbreuse.' Zeitschrift des historischen Vereins für Niedersachsen 1878, 25-41 (an account of an anonymous contemporary biography of Eléonore d'Olbreuse published in French and German, titled Avanture historique à Paris l'an 679 mense Aug. Sonderbahre Geschicht dieser Zeit.)  Additional details in Allemagne Dynastique 3:57-58.

A curious item in the Gazette d'Amsterdam, 1730, n. 11:
"Le roi de la Grande Bretagne et la reine de Prusse, sa soeur, ayant donne la terre d' Olebreuse [sic], située au pays d'Aunis, à Mr. Alexandre Prévôt, seigneur de Gagemont, capitaine de dragons dans le regiment d'Orléans, et cousin de Madme d'Olebreuse, devenue duchesse de Brunswick Lunebourg. Le roi a confirmé cette donation par Lettres Patentes sur arrêt du conseil expediées le 6 octobre 1729 et enregistrées en parlement le 4 décembre suivant. Le brevet du roi de la Grande Bretagne comprenant cette donation est daté du 23 novembre 1728 et celui de la reine de Prusse du 14 Décembre de la même année. Mr. de Gagemont a donné cette terre à son fils êgé de 13 à 14 ans qui a pris le nom de comte d'Olebreuse."

another morganatic marriage
Duke Rudolf August of Braunschweig-Wolfenbüttel (1627-1704), head of the line of Wolfenbüttel, married first Christiane Elisabeth, Gfn von Barby, who died on 2 May 1681.  Rather than remarry equally to produce a male heir, he was satisfied that his eldest daughter married her first cousin August Wilhelm on June 24 of that year (the other married Johann Adolf von Holstein-Plön).  The duke himself married on July 7 Rosine Elisabeth Menthe (1663-1701), daughter of a surgeon from Brunswick.  She was called Madame Rudolphine and died without children on 20 May 1701.  The contract made with his younger brother duke Anton Ulrich allowed the children to be born from that marriage nothing else but an allowance sufficient for living nobly ("einen dem Adelstand gemäßen Unterhalt") [Pütter 165, Schulze].

Hesse

Landgrave Ernst von Hesse-Rheinfels (1623-93) had two sons by a countess of Solms and a number of grandchildren when he was widowed in 1689.  He remarried on 3 Feb 1690 to the 17-year old daughter of a non-commissioned officer, named Alexandrine von Düriczell [Dürnizl].  The marriage contract describes her has born of the patriciate of Straubingen in Bavaria, and mentions that her father had distinguished himself at the battle of Cochem (25 Aug 1689).  She took the name of Madame Ernestine (see the similar name taken by another morganatic wife).  Her entire household consisted of a chamber-maid, a wash-maid and a valet.  Her dowage, instead of a standard 3,000 Thalers, consisted of an annual rent of 100 Thaler; any children born of the marriage (of which there were none) were to be neither princes nor counts, but counted as part of the nobility of Hesse. [Pütter 170-72].

Holstein

Holstein-Plön/Eichelberg (1702)

This case arose in a branch of the Oldenburg family, more precisely among the descendants of Johann (d. 1622), 4th son of king Christian III of Denmark (d. 1559). This line of Holstein-Sonderburg-Plön (see a genealogical table here) split at the next generation into the lines of Sonderburg (itself further splitting into many lines of Franzhagen, Beck, Augustenburg, Wiesenburg), Norburg, Glücksburg, and Plön. The line of Plön itself split at the next generation between Johann-Adolf of Holstein-Plön, August of Holstein-Norburg (or Nordborg), and Joachim Ernst of Holstein-Rethwisch.

August of Holstein-Norburg died in 1699 leaving two sons, Joachim Friedrich (1668-1722) and Christian Carl (1674-1706).  On Feb. 20, 1702 the younger brother Christian Carl married Dorothea Christine von Eichelberg(alias Aichelburg).  Her father Johann Franz had served as captain in an Austrian cavalry regiment, and later as Hofmeister at the court fof Plön.  Later that year, a contract (24 Nov 1702) was concluded between Christian Carl and his elder brother Joachim Friedrich.  The text explained Christian Carl's intention to conserve the house of Norburg and avoid the division of its estates among many children.  It stipulated a 40,000 Thaler lump-sum payment to Christian Carl's widow and suspension of the rights of the issue of that marriage to any of the family fiefs until extinction of the (male) line of Joachim Friedrich.  The king of Denmark approved the contract on 5 Dec 1702 and granted to the issue of that marriage the name of von Carlstein and a specific coat of arms.

Christian Carl died on 23 May 1706 leaving a son (Friedrich Carl von Carlstein, b. posthumously on 4 Aug 1706) and a daughter.  Later the same year, on 4 Nov, the Holstein-Plön line died out and Joachim Friedrich inherited the imperial fief of Plön.  The tutors of young Carlstein, appointed by the king of Denmark, made claims but were rebuffed in 1710 and 1714 in imperial courts.

On 25 Jan 1722 Friedrich Joachim died, leaving only daughters and a pregnant wife who gave birth to a daughter.  The next male-line heir, after Carlstein, was Johann Ernst Ferdinand duke of Holstein-Rethwisch, whose father had entered Spanish service and converted to Catholicism; he immediately claimed the Norburg-Plön succession in Imperial and Danish courts.  But, on Dec. 12, 1722, in exchange for a significant share of the disputed estates, the king of Denmark, Frederik IV (4th cousin of the brothers) declared Carlstein his kinsman and a duke of Holstein, and militarily took possession of Plön on his behalf.  The duke of Holstein-Rethwisch sued, Carlstein counter-sued, and the matter dragged on for years (in part because imperial courts refused to countenance young Carlstein's self-style as "duke of Holstein") until past the death without male heirs of the duke of Holstein-Rethwisch in 1729, whereupon Carlstein inherited Rethwisch as well.  In July 1730, he married Christine Ermegaard Reventlow, niece of Frederik IV's 3d and morganatic wife Anna Sophie Reventlow (they left no male issue).

Finally, On Sep. 11, 1731 the German emperor decided that the marriage should be considered as "ein ordentliches und Fürstliches rechtmäßges Matrimonium," that the son born of that marriage was entitled to the name, rank, and dignity of a duke of Holstein, and to inherit all rights and prerogatives of the Holsteins as princes of the Empire, and in particular in the imperial lands of the Holstein-Plön succession, and to be considered a full agnate of the house of Holstein.

Moser says that such suspensive clauses in morganatic marriage contracts were not in common use in Germany until then, and sees a number of reasons why, in this particular case, Friedrich Carl von Carlstein was able to reclaim his status, essentially because the contingency (extinction of the senior line of Norburg) occurred soon after the pact, so that Carlstein's failure to use his father's titles and rank could not be grounds for prescription (since he was a minor) and he had not yet gone into a marriage that could have cast doubt on his ducal rank.  In other words, had the status of the morganatic issue remained inferior for a much longer period, it would have been difficult to have the clause of the marriage contract applied after the extinction of the senior, princely issue. But Moser is well-disposed toward such clauses and argues that an imperial law should be passed to provide a firm ground for them.  He also says that, at a minimum, anyone considering such clauses should make sure he secures the consent of the Emperor and of the agnates.

[Moser, 65-67, 170; Pütter 218-223]

Hohenzollern

Friedrich Wilhelm von Hohenzollern-Hechingen (1663-1735), who had one son by his first marriage with a countess of Zinzendorf, remarried in 1710 with Maximiliane Magdalene Freiherrin von Lützau (1690-1755), daughter of Georg Heinrich, a captain in the Imperial cavalry, and Juliana Dorothea Freyin von Schönfeld.  They had one son and one daughter.  Their marriage contract of 7 Sep. 1710 stipulated that neither she nor any children they might have should use the princely and comital titles of Hohenzollern or enjoy the rights and prerogatives of the princely spouses and children, but should use only the titles of "Frau, Herr von Homburg", use different arms and receive a specific, limited allowance.  Later, however, the contract was annulled and a new one passed, according to which his second wife and children from that marriage should receive the same allowances as his first wife and children by her had received, should bear the title of Graf/Gräfin von Hohenzollern, and his sons by his second marriage should be free to use the title of prince if they so desired; furthermore, in case the male issue of his only son by his first marriage should become extinct, his son or sons by the second marriage should succeed in its place.  Moser also claims to have seen a letter from the prince to the Emperor dated 20 Aug 1715 submitting a testament with similar clauses, as well as the new marriage contract, for imperial confirmation.  But he does not know what became of it.  Ultimately, his son by his second marriage predeceased him in 1726 at age 15; his daughter by that second marriage married a count Künigl zu Ehrenburg (Tirolian nobility). [Moser, Pütter 229-31]

Josef Franz Ernst Meinhard Karl Anton von Hohenzollern-Sigmaringen (1702-69) married for the 2nd time in 1738 with Maria Judith Katharina Philippina, Gfn von Closen (1718-43), from a family of imperial knights.  They had three children who died in infancy.

See also the pacts of 1695 and 1707.

Nassau

Nassau-Siegen/Puget de la Serre (1669)

(See a genealogical table here. and a page on the Nassau succession laws)

The house of Nassau split in the 13th c. into the Walramian line (Weilburg, Idstein and Wiesbaden) and the Ottonian line (Siegen, Dillenburg, Beilstein and Ginsberg, over time augmented with Vianden, Dietz, and Orange).  The Ottonian line split in 1559 into Dillenburg and Orange (extinct 1702 with William III of England).  Dillenburg split in 1606 into Dillenburg, Siegen, Hadamar, and Dietz.

Johann Franz Desideratus, prince of Nassau-Siegen (1627-99), raised a Catholic by his father, had a son Wilhelm Hyacinth (1666-1743) by his second marriage to a princess of Baden.  Widowed in 1668, he married for the 3d time on Feb 9, 1669 in Brussels with Isabelle Claire du Puget de la Serre (d. 19 Oct 1714), daughter of Nicolas and Claude-Marguerite de Sybrecht.  Their marriage contract of March 13 stipulated that, so long as the prince and any male issue of his by earlier marriages remained, the children of this marriage should have no higher rank than noble. She was made a Gräfin by the Emperor on Jan 4, 1686.  They had three sons: Alexius (1673-1734), Franz Hugo (1678-1735), who married a countess of Hohenlohe-Bartenstein, and Emanuel Ignatius (1678-1735), who married Charlotte de Mailly-Nesle.  At the death of their father they took the title, name and arms of Nassau.  On Oct. 6, 1701, their step-brother prince Wilhelm Hyazinth zu Nassau-Siegen-Dillenburg obtained an injunction from the Reichs-Hofrat against them, prohibitng them from doing so.  Another similar injunction was issued on Feb. 9, 1709, ordering them to conform themselves to the terms of the marriage contract of 1669. They eventually sued for a portion of the Nassau estates but lost in the Reichshofrat on 6 Jul 1713 (Moser 12:2:98, Hoffman 227-29).  Pütter (1796, 159) however says that, in spite of their Protestant Nassau kinsmen's efforts, the brothers succeeded in securing a partition in Sept. 1723; but they all died without issue before their half-brother, at whose death in 1743 the line of Dietz (now Orange) became the sole remaining branch of the Ottonian line, eventually reaching the throne of the Netherlands (1815). [Pütter 158-59.]

Allemagne Dynastique 3:338 notes that Emanuel Ignatius and his wife Charlotte de Mailly were separated in 1715 (he had her thrown in jail for adultery) but in 1722 they reconciled, and he seemed to accept the paternity of their 3d-born and only surviving child.  Close to his death, however, he rejected the son and declared him adulterous (Aug 26, 1734).  The son, Maximilien-Guillaume-Adolphe (1722-48), was recognized as legitimate in French courts (sentencec du Chatelet, Jan 31, 1756) but not in German courts at the request of the prince of Orange (Reichshofrat Dec 17, 1744, confirmed by the Emperor, Oct 15, 1745). He had one son Charles-Henri (1745-1808) who was grandee of Spain and admiral in Russia and died without issue.

See E. F. Keller: 'Fürst Wilhelm Hyacinth von Nassau-Siegen, Prätendent der oraniscchen Erbschaft.' Annalen des Vereins für Nassauische Altertumskunde und Geschichtsforschung Bd. 9.

In the Usingen branch, Karl (1712-75), widowed of a duchess of Saxe-Weimar-Eisenach, married morganatically around 1743 Maria Magdalena Gross (1714-87), daughter of an apothecary and of the daughter of the mayor of Wiesbaden.  They had two surviving children who were created Herr/Frau von Biburg on July 16, 1763; the son, Karl Philip (1746-89), was created Graf von Weilnau
[AD 3:397, 418.]

Palatinate (Wittelsbach)

Pfalz/Tott (1471)

The Elector Palatine Ludwig III died in 1436 leaving three sons: Ludwig IV (1424-49), Friedrich (1425-76), and Ruprecht (1427-80).  Ludwig IV succeeded him as elector and died in 1449 leaving an infant, Philipp (1448-1508).  Friedrich, who had been deprived of his inheritance by Ludwig IV, seized the electorate, a breach of the succession which was endorsed by an assembly of notables in Heidelberg in 1451.  To make up for his act, however, he adopted his nephew and promised to remain unmarried, at least as long as Philipp or his male issue existed.  When Philipp became of age, he relieved his uncle of his original promise (on 29 Apr 1470 and again on 24 Jan 1472), but Friedrich now promised that "unser Gemahel und elich lybeserbenkeynen teile gerechtigkeit oberkeit noch gewaltsame wollen noch sollen haben an eynichen rechten, regalien, eren, wirden oder Herlichkeit, die dem kurferstenthum der Pfaltz zusteen und zugehörig oder daby blyben verschrieben sint, alledieweile der obgenannt unser lieber sone hertzog Philips und sin elich sone die Pfaltzgrafen by Ryne und kurfersten werden in leben sin" (document of 24 Jan 1472).

Friedrich had met in 1459 Clara Tott [sometimes written Tettin, Dettin or Tettingen] in Augsburg, the daughter of a Ratsknecht, and had brought her to live with him in Heidelberg. She was the mother of his two children Friedrich and Ludwig (b. 1461 and 1463), and he married her sometime between April 1473 and September 1474 (Pütter 1796, 66).  At his death in 1476 he had left four cities and three castles to his surviving son Ludwig of Bavaria, but the vassals refused to recognize him as overlord, and he had to make do with the lordship of Scharfeneck.   Philipp succeeded his uncle in 1476, and recognized Ludwig as legitimate (Klüber 1837, 172); he also gave him the county of Löwenstein in 1488 [it had been bought from Würzburg by emperor Rudolf in 1281 and given to his illegitimate son Albrecht von Schenkenberg; the last of that line had sold it to the elector palatine], and on 27 Feb 1494 Emperor Maximilian I made Ludwig an imperial count, as Graf von Löwenstein (cited in Moser, 2:49):

"Wir Maximilian ... bekennen ... Nachdeme, als Wir berichtet worden, der Edel, Unser und des Reichs lieber Getreuer, Ludwig von Bayern, von weyland Pfalzgrafen Friderichen ... ehelichen gebohren ist, und aber kein Fürstenthum und Land hat, davon er Fürstlichen Stand und Leben gehaben möge; deßhalben ihme ... Philipp, Pfalzgraf ... und Churfürst, die Graffschafft Löwenstein übergeben und zu seinen Händen gestellt: Haben Wir angesehen solche desselben Ludwigen adeliche Geburt ... und darum ... dem leztgenannten Ludwig die Gnad gethan und ihme zum Grafen daselbsten zu Löwenstein geschöpffet, gemachet und genannt."
The Löwenstein family prospered. However, when the issue of Philipp died out in 1559, the electorate passed to the descendants of Ludwig III's brother Stefan, founder of the Simmern branch.

[Moser; Klüber; Pütter 62-68]

Pfalz-Zweibrücken/Hepp (1672)

Friedrich Ludwig, Duke of Zweibrücken (1619-1681), remarried in 1672 (the year he became a widower) Anna Marie Elisabeth Hepp or Heppe (1635-1721), a non-noble from Meisenheim, under a morganatic marriage that only provided noble status for the issue (Moser citing Struve, Jurisprud. heroic 2:121, citing Joannis: "eo quidem pacto, ut, qui ex ea nascerentur liberi, nobilium tantum loco haberentur").  Their male issue took the title of barons von Fürstenwärther, which became extinct in the early 20th century (see the genealogy).  His male issue from his first marriage did not survive him and the title passed to his cousin king Carl XI of Sweden. [Pütter 164]

Saxony

Bernhard II of Saxe-Jena (1638-78), youngest son of Wilhelm of Saxe-Weimar, married Marie Charlotte de La Trémoïlle (d. 1682); his second marriage to Marie Elisabeth von Kospoth [Kospodt] is one of the few cases of bigamy among princes, along with the more famous example of Philipp landgrave of Hesse, and elector Palatine Carl Ludwig.

Bernhard's first marriage had produced sons and daughters, but the two spouses were seemingly irreconciliable, and the duke had decided to marry one of the ladies of his court, Marie Elisabeth von Kospoth, of old nobility.  He solemnly promised that he would divorce his wife and marry her, and she ceded to his advances, giving birth to a daughter in 1672.  Meanwhile, the duke's efforts to have his marriage annulled were unsuccessful, as no theologian or jurist could give him grounds for divorce; and he appeared to reconcile himself with his wife.  On 20 Oct 1672, he nevertheless promised in writing to his mistress that he would never forget her, but would care for her and protect her as if she were his true wife, and giving her the style of "Dame de Altstaedt" and an annual rent of 1000 Thaler. Then, in 1674, they were married by a Jesuit priest named Andreas Wigand. The contract declared the children to be legitimate and noble, until such time as an imperial act could bring them to a higher rank.  She was given as Morgengabe a sum of 20,000 Thaler and assigned the castle of Dornburg as residence.  She was obliged to keep the marriage secret until the death of the duke's first wife; should she reveal it, the duke would cease to be bound by the contract. 

On Nov 8, 1676 Marie Elisabeth von Kospoth was raised by the emperor to the rank of an imperial countess, along with her daughter Aemilie Eleonore, and any other legitimate children of hers, with the title of Gräfin von Altstädt and the style of "hoch- und wohlgebohrne". The duke died in 1678, and was succeeded by his only surviving son Johann Wilhelm, born of his first wife after their reconciliation in 1675.  His second wife obtained her Morgengabe, not without some difficulty.  Emilie Eleonore married in 1692 Otto Wilhelm von Tümpling. [Pütter 160-63]

Schwarzburg

Wilhelm Ludwig zu Schwarzburg-Rudolstadt (1696-1757), the middle of three brothers, was serving in the Saxon army when he married in 1726 Henrietta Carolina Gebaür [Gebauer](1706-84), daughter of an equerry, in Leipzig, and had her ennobled under the name of von Brockenburg in 1727.  The morganatic marriage was the object of a contract with his brothers (Jul 31 and Nov 13, 1727) which was confirmed by the Reichshofrat on 30 Jul 1733.  The first brother's son died in 1767 without male issue, at which point the principality passed to the youngest son's issue, skipping over the Brockenburgs, who became extinct in male line in only 1863. [Moser 99, Pütter 271-73].

Brieg

Prince Johann Christian [Jan Krystian] zu Brieg (1591-1639) , widowed of a daughter of the elector of Brandenburg who bore him 13 children, married in 1626 Anna Hedwig von Sitzsch [Sitsch], and she was made a baroness in 1627.  However the marriage specified that the sons of this marriage would only be titled barons von der Liegnitz.  The eldest son of that marriage August (1627-79) was made a count by the emperor in 1664.  But, the grandson of Jan Krystian, last of the Piast, died in 1675, the von der Liegnitz inherited nothing.  [Pütter 141-42]

Prussia/Harrach (1824)

In the 19th century a number of sovereigns entered into marriages that have been called morganatic, such as Alexander II of Russia and Victor Emmanuel of Italy.

There is one explicit example, the second marriage of king Friedrich Wilhelm III of Prussia (1770-1840).  He had first married in 1793 Luise, Duchess of Mecklenburg-Strelitz (1776-1810), by whom he had four sons and three daughters.  On 9 Nov 1824, he married Auguste Gräfin von Harrach (1800-73), who was created Fürstin von Liegnitz and Gräfin von Hohenzollern.

The full text of the edict signed on the same day by the king is here (German original and English translation).

Was the marriage unequal?  The question is not an easy one.  The first point is to determine what the rules were in the Prussian royal family; the other is to determine what rank the spouse had before marriage.

The Hohenzollerns margraves of Brandenburg never had a single written house law.  Moreover, the collection of pacts and testaments which formed the house laws of the family contain no specific clause concerning equality.   The practice of the house was clearly to apply high standards to marriages.   In the descent of Elector Johann Friedrich (d. 1608), ancestor of the senior line of margraves of Brandenburg, later kings of Prussia, one finds only a handful of marriages that are not with princely or sovereign families before World War I:

The margraves of Bayreuth (ext. 1769) and Ansbach (ext. 1806), descended from brothers of Johann Friedrich, admitted a few marriages with new-princely families (Eggenberg 1639, Ostfriesland in 1723), old-comital families (Hohenlohe 1711; Oettingen 1651, Hanau 1699), and even a few new-comital family: Christian Heinrich of Bayreuth married in 1687 Sophie von Wolfstein, whose family had acquired the immediate lordship of Sulzbürg and been created counts in 1673;Sophie of Brandenburg-Bayreuth married in 1731 prince Alexander of Thurn-Taxis, who had bought the immediate lordship of Eglingen in 1723, thus gaining seat on the bench of Swabian counts, and would be admitted as prince with individual vote in 1754 (his sister married the duke of Wurttemberg, whence the royal house of Wurttemberg).

As to the spouse, Schulze (1888, 1:184) considers that the Harrach family fell below the threshold of certainty.  The reason is that the Harrach, an Austrian family with possessions in Bohemia, were created imperial counts in 1627, but were not parts of the Reichstag until their reception on the bench of Swabia on July 6, 1752, and this without owning an immediate territory of sufficient importance to satisfy the legal requirements.  They were "personalists," sitting at the bench in their personal capacity rather than by virtue of a territory.  A number of writers did not consider such personalists as being reichsständisch.  Thus Schulze considers that marriages of the Prussian royal family with personalist counted "keineswegs unzweifelhaft" (in no way beyond doubt) as equal.  He does not state, however, that Auguste von Harrach was clearly unequal either: only that the case was doubtful.

Furthermore, Auguste belonged to a junior branch of the family, descended from Otto Friedrich (d. 1639), younger son of Karl I Bernhard who was created count in 1627.  It was the elder branch, descended from Karl Leonhard (d. 1645) that became reichsständisch (albeit as a personalist) in 1752.  It was the head of the elder branch who received in Austria in 1830 (six years after the marriage) the qualification of Erlaucht pursuant to the German Confederation's decision of 1829 conferring such treatment to mediatized comital families.  Auguste was 5th cousins once removed with the head of the elder branch.

On the details of the marriage, see Treitschke: Deutsche Geschichte in 19. Jahrhundert. 1896.  3::393.  E. Bleich: Der Hof des Königs FWII und des Königs FW III. 1914. p. 260. (cited by Gollwitzer 1957, 357).

Austria/Chotek (1900)

Details.  Link to texts.

Morganatic marriages in Austrian civil law

Curiously, Austrian civil law did not know of morganatic marriages.  The civil code, the Allgemeines Bürgerliches Gesetzbuch (ABGB) adopted in 1811, includes the following disposition: "Die Gattin erhält den Namen des Mannes und genießt die Rechte seines Standes" (§91. ).   The point is made clear by various commentators: Rittner alludes to the laws of Emperor Joseph II (Hofdekret 7 Aug 1783, 12 Jun and 13 Aug 1783) outlawing "mariages de conscience" (Gewissensehen).  He cites in footnote a wonderful text by Joseph II explaining his motives:
"Die Religion, auf welche in Ehegesetzen mit zurückgesehen werden muss, gestattet dem unverehelichten Manne, eine unverehelichte Weibsperson, die ihm in verbotenen Graden nicht anverwandt ist, zu ehelichen; aber sie befielht Keinem, zu heirathen, und schliesst keine Classe von der Ehe aus.  Ahnenstolz und gesellschaftliche Vorurtheile haben die mariages de conscience erfinden machen: sie können und sollen in Zukunft dahin aufgehoben sein, dass sie dem Aufgebote, und allen anderen aus Contracten entstehenden Verbindlichkeiten, wie andere Ehen unterliegen.  Wer erröthet, eine Handlung öffentlich zu thun, der soll sie auch in Geheimen unterlassen! Wer überzeugt von seinem zeitlichen Glücke und Vergnügen eine Gattin aus einer unteren Classe zu nehmen sich entschliesset, muss auch standhaft genug sein, den Vorurtheilen Trotz zu bieten.  Nach diesem Grundsatze ist künftig vorzugehen und sind die geistlichen und weltlichen Behörden zu belehren."

Appendix 1: Examples of equality requirements in house laws

Anhalt

Testament of Victor Amadeus von Anhalt-Bernburg, 10 Oct 1678:

"Wenn unsere Söhne ich vermählen wollen, haben sie auf standesmäßige Parthien ihr Absehen vornehmlich und einzig zu richten.  Sollte aber über alles Verhoffen einer unter ihnen oder ihren Nachkommen sich so weit versehen, und diesem uralten fürstliche Hause zum Schimpfe, Verkleinerung und Nachtheile, sich mit einer unstandesmäßigen Person, von Adel oder bürgerlichen Eltern gebohren, verehelichen; als declariren wir, daß die aus solchem, unserm fürstlichen Hause schimpflichen Ehebette erzeugten Kinder beiderley Geschlechts unfähig aller Titel unsers fürstlichen Anhaltischen Hauses und Stammes, auch aller Succession und Erbes, sowohl von ihrem Vater als dessen Anverwandten, so lange eine von uns posterirende fürstliche Person, oder ein Fürst Anhaltischen fürstlichen Geblüts von beiderseits Eltern fürstenmäßig gebohren, am Leben ist.  Und soll aus solchem disreputirlichen Ehebette den erzielten Kindern weder ihrer Mutter Erhebung und Erhöhung in einen höhern Stand, noch andere rechtliche Wohlhalten, sie haben Namen wie sie wollen, kein geschriebenes noch ungeschriebenes Recht, kein Privilegium, Gewalt, Gnade, Dispensation, Exemtion, Absolution, keine Indulte und Statute, kein Gericht und Appellation in einige Wege schützen, befreyen oder handhaben." [Imperial confirmation 24 Apr 1679]

Testament of Victor Amadeus Adolf of Anhalt-Schaumburg, 1752 (Pütter 304):

"Nachdem auch die Erfahrun eines fürstlichen Hauses die schädlichen Mesallianzen nicht wenig beytragen; als verordnen und wollen wir, daß, wo ein oder der andere unserer fürstlichen Prinzen oder Prinzessinenen dergleichen seinem Stande nicht gemäße, und nicht zum wenigsten eine Person gräflichen Standes erwehlen würde, solcher nicht allein seiner Erbschaftsportion bis auf das Pflichttheil, sondern auch die Hälfte seines apanagii eo ispo hierdurch verlustigt seyn solle.  Wäre es aber ein primogenitus, sol lderselbe seines Primogeniturrechtes verlustigt seyn; und sollen die aus solcher ungleichen Ehe erzuegten Kinder niemalen zu einiger Perception des apanagii gelassen, vielweniger sich des fürstlichen Titles und Wappens gebrauchen; sondern bey Lebzeiten des Herrn Vaters mit Zuziehung und Consens der Agnaten ihnen eine gewisse Titulatur und Aliment ausgeworfen werden.  Da aber eine der Prinzessinnen sich so weit vergehen sollte; sollen dieselben gelichfalls ihrer Erbportion bis auf das Pflichttheil verlustigt seyn; sondern auch vom Heriathsgut nicht mehr als 2000 Rthlr. erhalten."

Brandenburg-Hohenzollern

family compact of 1695 (Moser 95-96):

"Als man sich 7. auch erinnert, daß Fürstliche Häuser duch Standmäßige Heurathen in Aufnehmen erhalten werden, hergegen durch ungleiche und unanständige Matrimonia in Abfall und Verachtung kommen; so ist noch verabredet, daß man von Seiten deren Fürsten von Hohenzollern solches auch fernerhin evitiren solle und wolle: Geschähe es aber, daß solche ungleiche und nicht standmäßige Heurath von jemand in der Fürsten von Hohenzollern Familie contrahrt, und also der bißhero löblich beobachteten Obervanz zuwider gelebt würde; so sollen dessen Kinder weder den Titul noch Namen von Hohenzollern führen, noch auch zur Succeßion derselben Landen zugelassen werden, sondern derselben ganz unfähig, und davon, jedoch gegen Verordnung eines jährlichen Deputats zu ihrem Unterhalt, ausgeschlossen seyn und bleiben."

family compact of 1707:

"8. Und wie nicht eines der geringsten ist, so zum perpetuirlichen Flor und Lustre Durchlauchtigster Häuser was grosses beytragen kan, daß ein solches Geblüt sich auch mit Seines gleichen Standes und Herkommens verbinde, und nicht durch ungleiche geringe Heurath verkleinert und verächtlich gemacht werde, deßhalben auch bereits im §.7. des Pacti was gewisses disponiret; so wird ferner, um hierinnen, so vil möglich, aller Unanständigkeit weiter vorzukommen, solcher §. hiedurch ausdrucklich declarirt, daß die Heurathen, so unter dem Grafenstand geschehen, vor ohngleich geachtet, und diejenige Fürsten und Grafen von Hohenzollern, so dergleichen treffen, uber dem, daß die daher erfolgende Descendenten des Tituls, Namens und der Succeßion, nach Ausweis des Pacti, unfähig seyn, auch weder zur Landes-Regierung gelassen, noch mit dem sonst verordneten Deputat versehen werden sollen, voraus wann solches inaequale Matrimonium ohne Vorbewußt und Einwilligung des Capitis Familiae & Lineae geschlossen und vollzogen worden."

Fürstenberg

Primogeniture treaty of 1752 (Pütter 305)

art. 6: "Da der vocatus primogenitus, als von der alten landgräflichen Familie von Fürstenberg entsprossen, sich mesalliiren, und nicht wenigstens eine adeliche stiftsmäßige Fräulein heirathen würde; soll derselbe vom iure primogeniturae ausgeschlossen seyn; dergestalt, daß er ... an statt der Regierung das Deputat, ein sich mesalliirender Cadet aber nur den halben Theil des ihn betreffenden Deputats zu gewarten, ein mehreres aber nicht zu fordern, sondern den Verlust der Regierung und die Schmälerung des Deputats sich selbst zur Schuld beyzumessen haben soll."

Königseck

Family compact of 1588 (Moser 102):
"Sollte sich aber begeben, daß einer Unsers Stammens und Namens, ohne der andern seinen Befreundten Wissen und Willen, und zu einer, so seines Stands nicht gemäß, verheurathen würde; sollen desselbigen Kinder den dritten Theil ihres Vaters verlassenen Haab und Güter, und mehreres nicht, geniessen mögen, die übrige Haab und Güter sollen auf die nächste Befreundte fallen und bleiben."

Leiningen-Westerburg

Compact of 1614 (Moser 102):
"Auf daß auch schließlichen der löbliche uralte Stamm Westerburg in seinen Aufnehmen, Ehr und Reputation, desto mehr verbleibe; so haben Wir, Graf Ludwig, Reinhard und Christoph, Better und Gebrdere, Uns freund- und einhelliglich dahin verglichen, vor Uns, Unsere Stammserben und Nachkommen, daßkeiner sich mit geringern Stands-Personen vermählen oder verheurathen soll; bey Verlierung aller seiner Erbschafft, Land und Leut."

Leyen

Family pact of union of 1661, approved by the emperor the same year (Moser 103)
 
"Was und so vil nun diejenige Stamms-Agnaten anlanget, welche sich in Heurathen übel vorsehen, und an keine von alten adelichen oder Herren-Standes Personen vermählen: Nachdemmahlen hierdurch das Ansehen und die Würdigkeit Stammens und Namens nicht wenig verringeret wird; dem vorzukommen, und damit das uralte adeliche und nunmehro von Römischen Kaysern in denen Herren- und Freyen-Stand erhobene Geschlecht von der Leyen bey seinem vorigen und anjezo verbesserten Splendor erhalten werde; sezen, ordnen und wollen, Krafft diser Stammens-Vereinigung, mit gemeinem Consens und Verbindung aller und jeder Agnaten, für Uns und Unsere Erben und Lehensfolger, daß nemlich die Kinder, welche aus solcher Ehe gebohren werden, zu keiner Erbgerechtigkeit oder Succeßion zugelassen, sondern gänzlich davon abgeschlossen, und mit einem gewissen zu ihrer Unterhaltung nothwendigen Deputat, nach der Sachen Gelegenheit und Vermögen der Verlassenschaft, abgefertiget werden sollen, sich auch des Freyherrlichen Tituls nicht gebrauchen; es wäre dann, daß Niemand mehr männlichen Geschlechts aus Unserer, der von der Leyen, Haus vorhanden wäre; auf welchen Fall, er trage sich zu, wann er immer will, sie selbst, da sie noch im Leben, oder ihre Nachkommen, zu der Succeßion, wie auch Gebrauch des gewöhnlichen Freyherren-Tituls, zugelassen werden sollen."

Limburg

Pact of 1604 (Moser 103-04):

 "Sollte sich aber fügen, daß einer unter Uns Gebrüdern, oder Unserer Söhne und Erben, vorgesetzem Unserm Statuto von Verheurathung zuwider, und seinem Stand ungemäß, ausser Raths und Vorwissen anderer seiner Brüder und nächstverwandten Blutsfreunden, anders, dann sich seinem Stand und Herkommen nach geziemt, zu einer Bürgerin oder Baurin sich zu verheurathen gelüsten liesse; derselbe soll seinem Weib nichts zu vertestieren oder zu schencken Macht haben, deßgleichen soll das Weib, ob sie ihren Gemahl überlebte, kein einige Administration, Nuzung oder Niessung seiner verlassenen Haab und Güter, ligender und fahrender, unter keinem einigen Schein, Gemächt, Geding, Namen oder Praetext, nimmermehr haben, sondern alsbald von allen Gütern aus- und abschafft, und ihr mehr nicht, denn ihr Heurathgut, Widerleg und Morgengab, samt dem, so zu ihrem Leib gehörig, zugestellt, wann sie auch Kinder bey einander gezeuget hätten, die nach Absterben des Vaters vor einer solchen Mutter Tods verführen, sollt sie zu der Succeßion derselben weder ex testamento, noch ab intestato, zugelassen werden, sondern davon und allen Gütern, die ihr Gemahl verlassen, hiemit jzt als dann, und dann als jezt, wissentlich excludirt und ausgeschlossen seyn, heissen und beliben: Es wäre dann Sache, daß solche Verheurathung dannoch aus seinen Ursachen ihre Entschuldigung, darinnen mehr wider Wohlstand, dann Ehr, gehandelt, und sie, das Weib sonsten ehrlichen Herkommens, sich gegen ihrem Herrn unverweislich erzeigt hätte; da solle es alsdann bey den nächsten Gesippten und ihrer Erkänntniß stehen, was und wie vil ihr in ein oder dem andern Weg zur Abfertigung paßiren zu lassen, oder zu verordnen: So aber derselbe Herr zu Limburg nach Absterben eines solchen Weibs, mit Unserm oder Unserer Nachkommen Rath, oder Unsem Namen gemäß, wieder in ein andern ehlichen Heurath nichts benemen, sondern alles dessen fähig seyn, und zu disponiren Macht haben, so Uns Andern in KRafft diser Erb- und brüderlichen Vereinigung vergönnet und zugelassen ist."

Nassau-Cazenelnbogen

Testament of Graf Johann (1597):

Moser 97

"Wiewol Wir auch zum 16den uns mit nichten versehen wollen, daß sich einer unter Unsern instituirten und noch unverheuratheten Erben, seinem Stand und Herkommen zuwider, vernidrigen und mit einer, so zum wenigsten seinem Stand und Herkommen nicht ebenbürtig ist, verheurathen und vermählen werde; so haben Wir doch auf alle Vorsorge nicht unterlassen wollen, auch hierinnen Unsere Söhne und Erben aus treuherziger Wohlmeinung zu verwarnen, und ihnen väterlich zu befehlen, sich hierinnen, so wohl ihnen selbst zu gutem, als auch Unserm ganzen Haus zu Ruhm und Ehren, aller gebührlicher unverweislicher Bescheidenheit, gleich denen Vor- und Eltern, bey Verlust ihres hierinnen vermachten halben Erbtheils, zu halten."

Oettingen-Wallerstein

Primogeniture ordinance of 1765 (Pütter 305-06):

"Um höchstverkleinerliche Mißheirathen zu verhüten sollen unsere Nachkommen beiderley Geschlechts, wenn sie sich vermählen, fordersamst auf Teutsch altfürstliches oder reichsgräfliches Geblüt ihre vornehmste Rücksicht nehmen, nimmer aber mit einem geringeren Teutschadelichen Geschlechte sich alliiren, als welches auf einem der hohen Erz- und Domstifter Cölln, Eichstädt und Augsburg für prob- und stiftsmäßig gehalten wird; bey Verlust aller in dieser Constitution einem jeden (es sey der Erst- order Nachgebohrne Sohn oder Tochter) ausgemachten Emolumente und Rechte."

The imperial confirmation of Feb 18, 1766, included the following reservation:
"Die Art. 10 und 12., auch sonst vorkommenden Mißheirathen betreffend, wollen kaiserliche Majestät statt der gänzlichen Ausschließung aller Mißheirathenden, und deren Descendenz, folgendes feststehen: 1) Wann derjenige, welcher eine Mißheirath gethan, selbst zu der Primogeniturfolge der Nächste wäre, oder die Primogenitur bereits besätze; soll er sammt seinen Nachkommen von der Primogenitur ausgeschlossen seyn, und auf ein apanagium gesetzt werden; da hingegen aber der Nächste in der Ordnung, so standesmäßig verheirathet, oder sich dergestalt zu verheirathen im Stande sey, die Primogeniturvorrechte sammt seiner Posterität nach der gesetzen Successionsordnung erhalten. Wann hingegen 2) ein apanagium dergleichen Mißheirath sich zu Schulden kommen lasse; solle zwar ihm das apanagium vor seine Person nicht entzogen werden; er und seine Kinder aber der Succession in primogenitura eo ispo verlustigt seyn.  Und wann endlich 3) eine Gräfinn sich mit einer Mißheirath vergienge; solle dieselbe, statt des Heirathsguts von 6000 Fl. nur mit 3000 Fl. ausgestattet werden."

Reuß

Geschlechtsrecess of 10 Nov 1668 (Pütter 208-09):

daß sie [die Herrn dieses Hauses] sich nicht zu genau ins Geblüt, noch ausser dem Stande in ein höheres noch niedriges Geschlecht, sondern mit einer, die gräflichen und herrlichen Standes von einem guten wohlbekannten Hause ist, befreunden und vermählen sollen."

Saxony

Testament of Johann-Wilhelm of Saxe-Weimar, 19 Feb 1573 (Pütter 196-97):

"Wenn einer seiner Söhne sich verheirathen wollte, er sich mit einem Christlichen fürstlichen Fräulein in Teutschland vermählen, mit nichten aber sich deshalb mit fremden Nationen befreunden sollte."

Testament of Ernst of Saxe-Gotha, 31 Aug 1654, (Schulze 1881, 109):

"Insonderheit aber Unsere Söhne, nach Inhalt des vorherermelten Unsers Groß-Herrn Vaters Testament, in §. da sich zu tragen solte etc. nicht mit frembden nationen befreunden, sondern mit einem Fürstlichen teutschen Fräulein, welche Unser allein seligmachenden Lutherischen Religion von Hertzen zugethan ist, vermählen sollen. [...] Worauf Wir Unsere liebe Fürstliche Kinder hiermit aus väterlichen getreuen Hertzen ernstlich vermahnet haben wollen, daß so lieb ihnen Gottes Seegen ist, der in dem vierten Geboth frommen und gehorsamen Kindern verheissen worden, sie in diesem sehr wichtigen verheyrathungs Werck, Unsern gegenwärtigen letzen willen keines Weges aus dem Augen setzen, sondern sich demselben allerdings gemäß erweisen wolten, wie Wir dann aus erheblichen Ursachen, Ihnen in Unserm Hauße vor ersprießlich befinden daß keines aus Unseren Kindern sich an jemanden Unsers Haußes Gräflichen Lehen Leute verheyrathen sollen, derowegen Sie denn dieses nichts weniger in gute Obacht nehmen werden."

Primogeniture ordinance of Christian of Saxe-Merseburg, 7 Jan 1689 (Pütter 213):

"Seine Nachkommen sollten bey Vermählungen, soviel immer möglich, bey dem fürstlichen Stande verbleiben, oder doch sich weiter nicht als in den gräflichen Stand verehelichen."

Testament of Ernst Ludwig of Saxe-Meiningen of 1721, confirmed by the Emperor (Moser 2:36):

Ernst Ludwig (1672-1724) was grandson of Ernst of Saxe-Gotha and son of Bernhard of Saxe-Meiningen.

"17.  Weilen auch zu Verhütung der bißanhero leider allzugemein werdenden und zu nicht geringer Deshonneur, Schande und Prostitution derer Alt-Fürstlichen Häuser, und deren von so vilen Seculis her, besonders in dem Chur- und Fürstlichen Hause Sachsen, unbefleckt erhaltenen Fürstlichen Ansehens und Würde gereichenden Mißheurathen, Wir mit einigen Fürstlichen Häusern in eine gewisse Vereinigung zu tretten, und dagegen hinlängliche Vorsehung zu thun, der unumgänglichen Nothdurfft erachtet; so wollen Wir hiemit Unsere sämtliche liebe Söhne und Kinder väterlich und ernstlich vermahnet haben, diser Unserer wohlbedächtlichen und auf die Conservation des Lustre und Ansehens Unsers Fürstlichen Hauses alleinig abzilenden heilsamen Verordnungen, welche wie hieher, nebst denen von Unsers Großherrn-Vaters Gnaden, so wohl, als Unsers in GOtt ruhenden Herrn Vaters Gnaden, dißfalls gemahten heilsamen und nachdrücklichen Dispositionen ausdrücklich wiederholen, in allem sträcklichen nachzukommen, und dawider selbst nichts handeln, noch andern, so vil an ihnen ist, zu handeln verstatten: Befehlen Ihnen demnach, bey Unserm harten Fluch und väterlichen Unsegen, hiemit nachdrücklich an, sich an keine andere als Fürstliche, oder wenigstens alte Reichs-Gräfliche, Häuser und Familien zu verheurathen: Woferne aber einer oder der andere unter ihnen diser Unserer wohlbedächtlichen Fürst-Väterlichen Verordnung entgegen, als Wir uns doch nicht versehen, sich unterstehen sollte, eine adeliche oder bürgerliche Weibsperson zu heurathen; so soll nicht allein dessen Descendenz zur Landes-Succession niemahlen gelassen, und vor Fürsten keinesweges erkennet, sondern auch seine Ehe hiedurch und Krafft dises pro Matrimonio ad morganaticam declariret und eo ipso die daraus erzilte Kinder vor Edelleute geachtet, auch ihnen zusammen mehr nicht als = = Rthlr. jährliche Revenüen abgegeben, oder ihnen hiezu ein gewisses Gut angewisen werden, der Ueberrest des Apanagii ihres Herrn Vaters aber, dem Aeltesten und Regierenden, nach seinem Ableben, gänzlich wieder zurückfallen: Welche aber diser Unserer wohlmeinenden und väterlichen Vermahnung, wie solche nicht alleine in diser Unserer Fürstväterlichen letzen Willensverordnung, sondern auch in denen Väterlichen und Großväterlichen Testamentirlichen Dispositionen enthalten und nachdrücklich anbefohlen worden, in allem unverbrüchlich nachkommen werden, die können sich des von GOtt selbst frommen und gehorsamen Kindern im vierten Gebot verheissenen Seegens und Wohlergehns unfehlbar zu getrösten haben."

Primogeniture ordinance of Ernst August of Saxe-Weimar (1724), confirmed by the Emperor 29 Aug 1729 (Pütter 243)

"Wofern einer von unsern Söhnen, oder deren Nachkommen sich, wie bisher in vielen fürstlichen Häusern zu deren nicht geringem Nachtheile geschehen, mesalliiren, und eine andere Person, als aus einem fürstlichen oder alten reichsgräflichen Hause heirathen sollte; so setzen und ordnen wir hirmit ausdrücklich, daß, wenn es der primogenitus wäre, solcher der Succession der Lande und Regierung verlustig seyn, und diese hingegen gegen eine jährliche Apanage von 4,000 Reichsthalern an seinen erst nachgebohrnen Bruder kommen soll; wie dann auch alle andere postgeniti, wenn sie dergleichen unanstädige Heirathen treffen sollten, sich mit einer Abgabe von 3,000 Reichsthalern begnügen, und die von ihnen gebohrnen Kinder vor keine Fürsten gehalten werden, auch niemals zur Succession der Lande kommen sollen."

Waldeck

Hausvertrag between Prince Georg Friedrich and Count Christian Ludewig for the introduction of primogeniture, with assent of the Estates and imperial confirmation (22 Aug 1697)

Clause of 5 Jul 1687 (Pütter 211-12):

"...obiges alles mit dieser audrücklichen Bedingung, daß, zum Fall sich einer von den Söhnen oder künftig gebohrnen des Stammes der Grafen von Waldeck mesalliiren und ausser sienem Stande verheirathen würde, selbiger nicht nur alle Hoffnung zum Primogeniturrechte sich, sammt aus solcher Mesalliance descendirenden Nachkommen, dadurch eo ipso unfähig, bevor auch seines Deputats wenigstens sur Hälfte verlustig gemacht haben, und verfolgend davon durch seine concurrirende übrige Brüder oder Vettern excludirt seyn solle."

Wittgenstein

Pact of 1607 (Moser 113-14):

"Damit auch Unser Haus desto besser bey seinem Ansehen und Reputation künftiglich erhalten werde; so ist von Uns ferner abgeredt, geschlossen und verglichen worden, auf fen Dall sich einer Unsers Namens und Stammens künfftiger Zeit in ehliche Pflicht (welches doch, ob GOtt will, nicht geschehen soll), mit einer geringen Standsperson, Unserm Geschlecht zu Beschimpf- und Verkleinerung, einlassen wird, daß alsdann die Kinder, so aus solcher Ehe gebohren werden, zu keiner Erbgerechtigkeit und Succeß keinerley zu lassen, sondern gänzlich davon ausgeschlossen, und mit einem gewissen zu ihren Alimentis nothwendigen Deputat, nach der Sachen Gelegenheit und vermöge der Verlassenschaft, abgefertiget serden soll, sich auch des Gräflichen Tituls nicht gebrauchen; es wäre dann, daß sonsten niemand mehr mäbblichen Stammes aus Unserm Hause vorhanden wäre, auf welchen Fall, er trage sich gleich zu, wenn er woll, sie selbsten oder ihre Nachkommen, zu der Succeßion, wie auch Gebrauch des Gräflichen gewöhnlichen Tituls, zugelassen werden sollen."

Würtemberg

(1489):

Pütter 194-95

"Wäre es auch, daß Graf Eberhards des jüngern eheliche Gemahlinn vor ihm mit Tode abgienge; würde er sich dann wider verheirathen, so soll das geschehen mit einer, die seine Genossinn ist.  Ob er sich aber mit einer mindern und niedern Person verheirathen würde; überkäme er dann bey derselben Kinder , wenige oder viele; so sollen die an seinem Theile Landes, noch an der Herrschaft Würtemberg keinen Erbtheil haben, empfangen, noch überkommen in keinem Weg, ungefährlich."

(28 May 1617):

"Haben auch hiermit, als an sich selbsten löblich, Fürst- und billig, die fernere Verordnung gethan, daß keiner unter Ihren Fürstlichen Gn. Gn. Gn. Gn. Gn. Sich ohne der Andern... Rath, Vorwissen, Willen und Belieben, zumal aber nicht ausser dem Fürstlichen Stand verheurathen soll noch will."

Testament of Eberhard III, 14 March 1664 (Pütter 207):

(seine Söhne und Töchter sollten) "sich allein mit fürstlichen order anderen hohen Standespersonen ehelich erloben."

Appendix 2: Chronological list of mismarriages and morganatic marriages

Morganatic marriages are italicized.

References

The most important general remark is that I have relied exclusively on a legal literature (including history of law) and not on a historical literature.  The consequence is that almost all books date from before 1919, when the topic practically ceased to have any contemporary legal relevance.

The literature on unequal marriages is vast (Abt 1911 mentions 400 references); what follows is a selection, of which I have myself seen only a part (those books I have seen are marked with an asterisk).

The literature can be roughly classified into three genres:

The textbooks are either on private law (considering unequal and morganatic marriages as a special case of the law of marriage and inheritance), or on public law (considering the private law of princes as it follows from their special position in German public law), or on legal history.  Textbooks are written by usually experienced and knowledgeable jurists, but the drawback is that the examination of the topic can be rather cursory.  A few textbooks are wholly devoted to the topic of the law of princes (Kohler 1832, Heffter 1871 and Rehm 1904 are the standard references).  I have found Abt (1911) to be particularly useful, as it is well thought-out, and is recent enough to include discussion of the whole literature before it became obsolete.

Doctoral dissertations on the subject of unequal marriages are particularly abundant in two periods: the late 17th-early 18th c., and the late 19th-early 20th c.  The revival in interest in the subject in the second period no doubt stems from the series of cases (Lippe, Nassau) which made the subject both topical and of practical import.  Some dissertations show a certain lack of maturity.

Legal briefs (Rechtsgutachten) were produced and published throughout the 18th and 19th c., as pamphlets or in legal periodicals, in relation with various civil cases.  I have grouped together briefs and journal articles that relate to specific cases. The "heavyweights" in the late 19th c. debates are Rehm, Laband, Stoerk, Bornhak.  Hauptman's theses were strongly disputed by Rehm and Abt among others.

I have relied mostly on Zoepfl (1863) for an overall view of the Holy Roman Empire and the law of princes, on Rehm (1904) and especially Abt (1911) for equality requirements, and on Moser (1775) and Pütter (1796) for numerous examples and citations.  The bibliography for pre-1800 works is drawn from Moser and Pütter; I have tried to verify the bibliographic data using online library catalogs (such as that of Tübingen).  Moser and Pütter were the pre-eminent jurists of the Holy Roman Empire in the late 18th century, and Zoepfl was the pre-eminent jurist of the German Confederation (1815-66).

Online Resources

Digital library of the Max-Planck-Institut für europäische Rechtsgeschichte (mostly private law)
online catalog of the Tübingen university library

Sources

Michael Caspar Londorps [Londorpius]:
Johann Christian Lünig (1662-1740):
Hermann Schulze (1824-88):

Textbooks on German private law

Standard 19th c. textbooks on German private law usually have a passage on unequal and morganatic marriages, either in the chapter on marriage or else (as in Beseler) in the chapter on nobility.

Textbooks on German public law

Private law of princes

Equality requirements and marriage in German princely families

Finish cleaning up this section (move relevant material to "doctrine" discussion supra).

 Pütter's 1796 treatise on mismarriages contains a lengthy bibliographic chapter (p. 487-546).  He actually doesn't try to be exhaustive and refers the reader to other bibliographic sources:
Pütter divides the literature into four periods:
  1. up to 1629, where discussion of mismarriages appeared only in collections or treatises on other topics
  2. from 1637 to 1698 when the first books specifically devoted to the topic appear, but substantial discussions still appear in more general books
  3. the first half of the 18th c.
  4. the second half of the 18th c.
The contributions of Johann Jakob Moser "der Erzpublizist des Alten Reichs" (Teutsches Staatsrecht, vol. 19, (1745) pp. 1-369; FamilienStaatsrecht part 2 [vol.12(2) of his Neues Staatsrecht] (1775), pp. 23-174) far surpass earlier works in completeness and usefulness; he was the first to collect examples of unequal marriages and excerpts from house laws, and to summarize the existing literature, before presenting his own commentary.  Needless to say, Pütter's appreciation, while full of gratitude, remains critical: he deplores "principles which rely neither on a precise historical knowledge of the middle ages nor on correct legal determinations, resulting at times in too little trust in a custom not yet precisely formulated, at times in an anachronistic reliance on common law." 

Pütter finds that the pamphlets (Deductionen) produced by both parties in various legal disputes are on average of better quality than the rest of the literature, in part because the best legal minds were hired out to make the case and provided with the best resources and access to libraries and archives, in part because the adversarial nature of that literature presents all possible arguments pro and con each assertion, making it easier for the reader to judge.   This is particularly so of the Meiningen dispute, which was the most prominent of the 18th c.  Some of the pamphlets are cited or summarized in Moser, others are printed in collections such as Lünig's Bibliotheca deductionum. 

The 1742 Capitulation caused a shift in the literature.  The pure Mylerian thesis was abandoned, the debates were now over the precise definition of "undisputably notorious mismarriages" for comital and even princely families.

The Hesse-Rothenburg and Mömpelgard cases produced more literature, including Estor (1751) reaffirming his views on the distinction between upper and lower nobility, and arguing against the equality of the Hesse-Rothenburg/Starhemberg marriage.   The same distinction is the basis for Dürr's (1751) point-by-point refutation of Moser.  A few years later a controversy erupted between two law faculties, Bamberg and Göttingen, on the subject of marriages within the lower nobility (Sondinger 1755, 1763 and Selchow 1755).  The Schaumburg/Friesenhausen case produced stimulated further efforts to establish a theory of mismarriages based on history; of these Böhmer (1755),  Hommel (1767) and Kanne (1769) are among the best according to Pütter; on the other hand Karl Friedrich Einhorn in particular made the case that comital families never adopted strict equality requirements and allowed marriages with the Niederadel.  Struben, in his Nebenstunden (1757, part 5, p. 232-62) and rechtliche Bedenken (1763, part 2, vol. 135, p. 502-18) distinguishes between princely and comital marriages; in the first case, an unequal marriage is always a mismarriage unless it secures the consent of all agnates; in the latter case consent is not required.   Pütter's own works are mentioned: notes in his Rechtsfälle (1771) that a noble-burgher marriage is not unequal; (1777) on the claims of the marquise de Favras; (1785) on the marriage of an imperial count with a noble andon a prince and a person of "new comital" rank.   Batz (1781) holds knightly brides to be equal.  Greifenclau/Horix case (p. 486, 540).  Excerpts of a number of the late 18th c. works appeared in Johann Ludwig Klüber's periodical kleine juristische Bibliothek (Erlangen, 1785-93), in August Ludwig Schlözer's Staats-Anzeigen (Göttingen, 1782-93; in particular an anonymous Von MißHeiraten in Bd. 6, Heft 23, 20 Sep 1784, p. 311-324; available online), and in Selchow's Neue Rechtsfälle (1789, vol. 3, two deductions on the Lippe/Friesenhausen case).

A number of the 17th-18th c. dissertations are available online.

Morganatic marriages

Specific disputes (19th c.)

The 17th and 18th c. disputes produced volumes of opinions and pamphlets: see Moser's Staatsrecht vol. 19 for a full bibliography.

Hesse-Rothenburg/Starhemberg

The Sponheim dispute

The Este claim in Hanover

Löwenstein claims in Bavaria

Bentinck succession

The Lippe question

The Oldenburg-Welsburg case:

The Merenberg case: