May
04
2010

What is a “house law?”

Detail from the Golden Bull of Charles IV (PD-EXP)

House law is not really an English expression, rather just a literal translation of the German Hausgesetz. Nonetheless, it is understandable if one thinks of an old fashioned household in which “Father’s word was law”.

In the German expression, the house was a noble one, like the House of Windsor in England. Ruling noble houses were not subject to the law (Period! Full stop!). But they still had to settle things within the family, preferably out of sight of the subjects.

Most important, of course, was the question of succession to the throne, even if the principality was small and unimportant; but that raised questions of who got what; what to do with errant members of the family; and—because such families considered themselves somehow better than lesser nobility and commoners—who could marry whom.

“Father’s word was law”, but tradition was also respected. Under Salic Law, daughters could not inherit land, but sons were often given equal shares, splitting up the principality—fine perhaps, if the pieces were still big enough to be significant and the sons could all be rulers of their own smaller principality. Rulers being as they were—Daddy wanted to leave his realm intact, which required naming a successor, usually the eldest son (primogeniture), not always so easily accepted by a younger son or his mother, a story as old as that of Esau and Jacob in the Bible.

The other sons, however, had to be cared for, if not with property, then by funds to maintain themselves. And since the “blue blood” shouldn’t be diluted, Daddy didn’t want them to marry just anyone and have grandchildren of less noble blood. So he defined all this in a house law. This started in the Middle Ages, and the laws reflect experience with past situations and provide for future eventualities, such as the lack of a male heir in a later generation.

Significant for the introduction of primogeniture was the Golden Bull in 1356 of Charles IV, Emperor of the Holy Roman Empire. This document formalized and amended the procedure for the election of future emperors, also calling for succession by primogeniture for the Electors. attaching the electoral vote to the possession of certain lands, and decreeing that these territories should never be divided. Rather like in the EU today, where Directives of the EU Council must be promulgated by a law of the member countries, the Electors had to reflect the Bull’s terms in their house laws.

One way to assure that property would not be divided among individuals was the establishment of a Familienfideikommiss, a family trust that held all property, which could not be sold or encumbered in anyway, with a definition of the order of succession for its use. Something similar once existed under English common law: fee tail or entail, from Latin foedum talliatum.

House laws became more involved over the centuries as major ruling families and their holdings grew larger. For the House of Prussia, eleven laws and contracts are known from 1341 to 1920. Even after WWI, the deposing of Emperor Wilhelm II and dissolution of the German Empire, the family maintained its house law. This had effect on whom could become head of the family, only possible for a son who married someone from an appropriately noble family. Even as recently as 1998, the highest German court applied the Prussian house law in a decision. This was upset in 2004, however, by an appeal to the Federal Constitutional Court on the ground that the house law’s requirement that a son must marry a princess to be in line for inheritance was contrary to Germany’s constitution (Grundgesetz). In effect, this removed the legality of house laws under German civil law, although families may still adhere to their house law.

In England after 1066, only the king was above the law, and primogeniture was generally the principle of succession. Hence the lack of an English expression equivalent to Hausgesetz. In 1215, the Magna Charta limited the ruler’s rights. The increasing power of Parliament limited these further, also concerning the ruler’s income. At the end of the 17th century, the Civil List to pay for the support of the monarch was established. On the accession of George III in 1760, he surrendered the income from most of the Crown Estate to Parliament. Even the order of succession was laid down by Parliament in the Act of Settlement in 1701.

Although primogeniture in the male line remained the principle in most European kingdoms, the centuries’ old tradition has crumbled now. Various justifications for excluding the daughters have been suggested, primarily the understanding that the ruler was the military protector of the realm, once a reality, when kings led their armies in defense of their kingdoms. There may also have been the fear that a queen’s realm would be usurped by her husband. The story of Maria Theresa of Austria exemplifies the potential problems (note: she also had 16 children in 20 years).

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