Source

German Princely State Part Two

On the government and constitution of a land and principality of clerical and secular status

Chap. I. On the territorial-princely government, sovereignty, and dominion in general

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§ 1. We know, thank God, in the German states of no such power as is exercised by a single person in the land, who regards himself as the most elevated, and who holds most of the power over all others with or without right, solely according to his will and pleasure, much like, for example, a lord is accustomed to commanding over his bonded manservants and maids, ordering them to do this or that, whatever is useful to him in his home or what he desires.

§ 2. Instead, the territorial-princely government in the German principalities and lands, as in almost every lawful and well-ordered polity, is nothing other than the highest and uppermost dominion of the rightfully governing territorial prince or lord, which is employed and applied by him over the estates and subjects of the principality, as also over the land itself and the things belonging to it, for the preservation and affirmation of the common good and weal, in the clerical and secular estate, and for the application of the law.

§ 3. However, by attributing this supreme dominion solely to the person of the territorial lord [Landes-Herr], and therefore calling it territorial-princely [Landes-fürstlich] or territorial-sovereign [Landes-herrlich], we set aside all those persons in a land whom we have previously described in the first part, regardless of whether the same are enfeoffed or invested with a certain lordship [Herrlichkeit] and dominion, either by the territorial lord himself, or his ancestors, or by other external and foreign magistrates, in as much as the same are, by the customs of the lands, not mere liegemen or enclosed within the land, but simultaneously also freeholders and subjects: since in those cases neither the one nor the other, however mighty and rich he may be, nor the same taken as a whole, hold this kind of sovereign lordship and government in the land; rather, with respect to the territorial sovereign they are to be seen, as a whole and in particular, as subjects.

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Cap. II. Of the extent of territorial-princely sovereignty, in consideration of the Imperial Majesty and the Empire

[§ 1.] Lest one derive from the preceding chapter the notion that a German territorial lordship can exercise its sovereignty freely, and without any goal and just measure, we must recall, as was already briefly noted in the first part, that we are speaking of lands that lie within the Roman Empire of the German Nation, and also of such lords and estates who are enfeoffed with their lands and lordships, or at least with the prerogatives [regalia] of the same, by the Imperial Majesty as the highest sovereign in the Empire.

Now, it follows from this that they are also subject to the Emperor and the Empire, and that with receipt of their regalia they recognize the Empire, as is stated in the Imperial Resolution de Anno 1500, entitled The German Order, such that henceforth a German prince or territorial lord has to justify his governance and acts not only in his conscience toward God the Almighty, but that he is also obligated, and for the most part bound by the duties of oath, to render proper respect and obedience toward a properly elected, governing Roman Emperor and the Empire, and to attend to what the Imperial Majesty and the prince electors, princes, and estates of the Empire, in accordance with ancient custom, have arranged and decided and will decide in the future, for himself and in his territorial government, unless he is otherwise authorized through certain privileges, liberties, and stipulations.

In order to better understand this kind of obligation and measure of the sovereignty of the territorial lord, we shall examine and explain the same in terms of the four main points of the territorial-princely government as laid out in the preceding first chapter.

§ 2. With respect to the first, namely the preservation of his princely estate, honor, power, and sovereignty, he is obligated first and foremost to have the honor and sovereignty of the German Empire and of the Imperial Majesty before his eyes, not only (1) with external words and address, in that he calls the Roman Emperor his Most Gracious Lord, and honors him with the title of Your Imperial Majesty, while calling himself, however, an obedient or most obedient prince of the Empire, and does not, as in dealings with others, refer to himself as By the Grace of God, and We, but only I, and whatever other proper ceremonies and courtesies there are.

Rather, he is also (2) directed by his obligations to preserve himself and his land and people within the Roman Empire and under its highest dominion, and not to withdraw himself from it and seek a greater freedom by force or advantage than is his due by ancient custom and law, and even less to submit himself to another prince in the Empire, let alone a foreign one.

(3.) If the Roman Empire is afflicted or insulted by external enemies or by internal rebellions, he is obligated, upon request from the Imperial Majesty and the Empire, or from the person who is directed to do so through a unanimous decision and decree, to place himself before the freedom and protection of the fatherland and render aid with a substantial part or all of the powers of his land and people, or in their stead with a certain monetary or imperial tax.

(4.) Now, other high potentates who have no superior lord in the land are also bound to Christian virtues, decency, and honor, and to what is on the whole right and wrong to other people, or in a word, to divine, natural, or all the nations’ law. However, [only] in rare cases can one recover from them [i.e., the potentates] in this world if they act contrary to these things; instead, those, especially, who are weak or subject to them must leave it to the just God to judge in His time their errors and acts of violence. However, a prince of the Empire is obligated and bound to answer the complaint of the person he is insulting or doing wrong, and unjustly impeding his freedom and privileges that he may have justly attained, according to the circumstance and distinctions of the case, including also social origins, before the high courts of the Empire, or in other ways, as the laws may provide, and to do or refrain from doing what he is granted or denied; in other words, that the German territorial lords are thus obliged – and justified – not only by the laws and customs described above, but also by the special laws and customs that are customary in the Roman Empire. However, in this regard the princes and lords have one privilege over lesser persons, in that their complaint is heard in a certain way and in certain places, namely in accordance with the distinction of the matter, before another prince of the Empire, whom they have chosen as an acceptable judge, or before their own councils, or at the Imperial Court or the Chamber of Justice, and that they bring suit against others there, so that their affairs are examined all the more importantly and adequately for the preservation of their respect and of the state, and that they are not hurried, as can be found in detail in the Holy Roman Empire’s Code of the Chamber of Justice, and other books that have emerged from the condition and constitution of the Holy Roman Empire.

§ 3. With respect to the other point, where we have said that the territorial lord has the power to make laws and regulations, he must, because of the dominion of the Empire hovering above him, see to it that such regulations and laws do not go against those laws and regulations that are prescribed for the entire German land by His Imperial Majesty and all of the estates; rather, they must be in accordance and concordance with them, unless he wanted to arrange the same in greater detail and more precisely to the conditions of his land, or it concerned a matter not touched upon in the imperial regulations and instead left open, or it concerned an unclear legal question that required clarification, or the contrary practice had been customary at all times in his principality and lands through long habit or the favor of the Emperor and the Empire.

Indeed, he is (2) obligated to publish in his principality and lands the regulations and laws of the Empire that were enacted properly and with a common decision of the estates, and also to ensure that the same are followed, and to punish transgressors. Especially since many imperial decrees contain a certain punishment against the authorities who fail to follow them, which, in such cases, are customarily enforced by the highest Imperial Court or the Imperial Chamber.

§ 4. With respect to the third point, namely, jurisdiction, in many lands of the Empire, those who are unwilling to content themselves with the declarations and judgments of the territorial lords and their chanceries and courts, but believe that they are unlawfully burdened by them, can and may appeal to the Imperial Chamber Court or the Imperial Court Council, and have the matter recognized there. However, several princes and estates are exempt – up to a certain sum involved in a matter or entirely – through imperial privilege and old custom, and no one is admitted to an appeal of their judgments and decisions. At the same time, however, they are all the more obligated to accord law and justice to those who appeal to them, and to adjudicate the disputed matters of their subjects, lest, in cases where they are too slow or even denied them law, the subjects must therefore submit the hearing and examination of such matters to higher places.

§ 5. Fourth, even though, as shall be explained in detail below, a territorial prince shall, in order to exercise his sovereignty and carry out his exercise of dominion, establish this or that means of coercion, and even employ and establish a military constitution in the land, this is authorized with respect to His Imperial Majesty and the Empire to the extent that he does not turn his power and force against the same, or attack and insult another prince and estate of the Empire with it, just as he may not pursue the grievances he has against one of his peers or the neighbors, who have the same rights, not with a military campaign and force, but, as is customary in the Empire, with proper law, and is thus obligated to maintain the public peace In the Empire, as much as up to him, and he is not attacked with force by someone else, a point that shall be described with multiple explanations in its proper places. […]

Cap. IV. Of the measure of the territorial prince’s sovereignty and government, which is derived from various rights and authorizations from the estates and subjects of the land and principality

§ 1. From what we have stated above about the power of the territorial lord in general, that it is not like the arbitrary rule of the master of a house over his domestics, it can be readily inferred that the subjects of the land are not slaves, and are not beholden as property to their lord in body and possessions; instead, they are governed and maintained in obedience like freeborn men, and that, under his lawful governance, as people gathered together for the welfare of their bodies and souls, they should be legally protected and cared for by a Christian authority who is directed by the laws of God, nature, and the Empire; the following chapters will elaborate on all the most noble parts of this praiseworthy form of government in the tradition of the German principalities.

§ 2. In addition, however, and in particular, there are also several main points which the territorial lord in his government must observe toward all his subjects, not only, as described in the above-mentioned general parts, for the sake of conscience, and out of the responsibility to which God Almighty will one day hold him, but also because of an externally binding obligation, either because he or his predecessors promised and granted as much, or because it is imposed upon them in this way in the general German laws and statutes, or is in accord with ancient custom.

§ 3. As the noblest of these points one must regard the preservation of the religion as it is usual and customary in the land. For in accordance with numerous imperial statutes, most German principalities and lordships, and their respective governing authority, are obligated not to trouble the subjects in their Christian creeds permitted in the religious peace, and in the public or otherwise customary exercise thereof, and instead to properly protect them therein, as is described in more detail below in chapter 11.

§ 4. For another, the subjects of a land tend to desire it as a special competence, and it is also provided for in the imperial statutes, that the territorial lord maintain law and justice in the land, and should strive that everyone receive a hearing and decision in response to his complaint, and be given proper help in places and courts, in keeping with ancient custom, for what he is awarded by law; also, that nobody is condemned or punished for unheard-of or unknown things. For in case the territorial lords make no proper efforts in this direction, leave the people without law and help, or wish to act according to their own mind without some form of the court, the estates and subjects of the land would have reason to complain about this, and, in case of persistent refusal and disorder, to complain to the high imperial authority for mediation.

§ 5. Third, the subjects of the German territorial principalities are entitled in their goods and possessions such that the territorial lord does not have the power, as may happen, for example, in many tyrannical or otherwise arbitrary, cruel lordships, to take them in whole or in part as he pleases, or to burden them with rents, dues, and impositions other than those placed upon them since olden times or by new, lawful causes, in other words, to assess and tax them at his discretion. However, if an impost is levied in the entire Empire or in the district to which the principality or the land belongs, or if, in response to the territorial lord’s request, for significant causes, something is granted by the estates of the land, the territorial lord is authorized to collect this from the subjects, as will be explained in Part. 3 Cap. 3 3 Tit., “Of the taxation of the land.”

§ 6. Fourth, if particular contracts and agreements are thus established between territorial lordships and their estates and subjects, and in them certain things are promised and granted to them, examples of which can be found now and then, and such promises are commonly repeated and affirmed to the subjects when homage is paid; and it therefore holds that the territorial lord cannot exercise his power over such agreements without the consent and indulgence of the territorial estates.

§ 7. If even with such authorizations and reservations on the part of the subjects, circumstances should arise that a practice is to be undertaken, in accordance with the times and events, that is different from tradition, as tends to happen frequently with taxes and imposts, it is proper that the territorial lord consult his territorial estates – to whom we have devoted Part 1 at the beginning of the work – and acts with their consent, so that, in the contrary case, they do not oppose his undertaking, and possibly fall into serious disagreements and vindications with him.

§ 8. Over and above these main points, however, there are many more in which a territorial lord will likewise ask the counsel of his territorial estates, and listen to their obedient, faithful opinion and recollections. Even if he is not directly bound by it, he will not easily depart from it, but will happily follow it, especially since it is based on good, sensible reasons: and this should happen for the most part with those things that are undertaken to maintain and preserve the territorial prince’s high standing, and its attendant regalia, against fearful, harmful encroachments, as long as these matters will otherwise be delayed and do not have to be kept in secrecy, or for good order and improvement in the land, which everyone must use, or for the particularly opportune administration of what has already been laudably ordered.

Just as such examples of consultations that territorial lords have held with their estates and subjects in this respect, in the archives and chanceries of princes and counts, appear now and again in the public records of the territorial assemblies.

§ 9. However, since such consultations tend to happen at the territorial diets [Landtage], the following should be known about their description and procedure. The territorial lord, by means of a sealed order, summons all estates of the land we have named in the first part above, for a particular day, at a convenient location in his land, where he provides them, in addition to their servants and horses, which everyone brings alone according to his estate and old custom, with feed and food, or gives them something to purchase the same.

§ 10. Once they appear, it is usual to hold a service before the beginning of the procedures, and God the Almighty is petitioned for a good outcome. After the service, in a chamber or closed room, the territorial lord has his chancellor or chief council spell out orally to all estates the reasons why they have been assembled, also the points on which their deliberations and council are sought; (he himself should sketch it out in a few thoughts and then have the subsequent elaboration done by the aforementioned person), thereafter to transmit this also in writing to the leaders of the territorial estates, and to ask that the estates come together, consider well the proposed points, and then be heard with humble, loyal disclosure of their sentiments. […]

§ 11. Thereupon, they are sent into separate chambers, as is the custom in principalities and lands made up entirely of freeholders, the prelates into one, the counts and lords into one, the knighthood into another, and the cities also into one, or, as the situation may be, two or three classes stay together, depending on whether the estate of the knights, or lords, or prelates is exempted from the territorial princely rule. With every assembly, the chairperson, or whoever is authorized by old custom, asks the estates for their opinion, and they each reach a certain decision: every class communicates the same to the others, until they have agreed upon a common opinion, or, if that is not possible, the opinion or decision of every estate or class is recorded, and after that a written response to the territorial lord is composed, or to his chancellor and counsels, or whomever he has appointed for this, and as is customary, is delivered by several deputies from the estates.

§ 12. Now, if the territorial lord is content with this declaration, after it has been carefully considered against the proposed points, and examined for its motives, he informs them of the same. Thereupon, a written decision of what has been transacted and decided is composed in his chancery, and if publicly read in the presence of the lord and all estates, confirmed with the territorial lord’s seal and signature. It is then filed in the same lord’s chancery, as well as in the archives of the territorial estates, in as many copies as there are classes of the same. It is considered a decision and law of the land and is proclaimed in open writs and charters and the territorial estates are sent home again with gracious thanks and courtesies.

§ 13. However, should the estates, in their first reply to the proposed points, express a doubtful, or even negative and contrary opinion: where their invoked reasons do not seem significant, they will be handed a written counter-statement or reply, in the name of the territorial lord, to which they have to answer in another response or counter-statement; and in important and troublesome matters, it often gets so that even more letters are exchanged before a conclusion is agreed upon; however, in order to prevent prolixity, people tend not to want to engage in further letters; instead, through oral conference between the territorial lord’s councils and all – or some – of the territorial estates, the matters on which one is of different opinion are presented to each other, until a resolution is arrived at, either in accordance with the proposal of the territorial lord, or in other useful ways, according to the counsel of the estates, or the majority of them; and the territorial lord will then proceed all the more carefully with it, because such decisions of the territorial diets [Landtage] concern not only the described estates and their villeins, but also his immediate subjects of the bailiwicks that probably make up the larger part of the land, and because he must care for and act on their behalf in this case.

§ 14. At such meetings, the territorial estates usually also bring forward what they wish to complain about to the territorial lord, on account of his government, or because of some abuse or another that his officials and servants in the land would engage in.

The territorial lord listens to these complaints, and should it turn out […] that it concerns a common complaint, which affects either the entire land or several noble estates of the same, or perhaps only a single one, or merely a few, but with frightful consequence and impact on others, he will either […] declare that he properly understands and will remedy the abuse, or will submit it to further investigation, or, if need be, will select or appoint, in addition to his councils, several from the midst of the landschafft, which they themselves have proposed from among the most understanding and impartial men, which in such complaints or grievances shall summon those who are affected, be they estates of the land or the lord’s officials, investigate the nature of the matter, and institute a proper remedy.

§ 15. But if such matters fall to the territorial lord on which, from old custom and duty, he is not obliged to ask the territorial estates for counsel, even though he does not like to act without their foreknowledge; or the matter rests on a mere decree, but concerns the subjects as a whole; or there is talk of a suitable means of how the things agreed upon at the Landtage can be carried out most appropriately, it is the custom of the territorial lord not to summon all territorial estates as a whole, but, in order to avoid the costs and gain time, frequently also for the sake of keeping things more secret, appoint a committee of the same. Such a committee or appointment of several persons, sometimes smaller, sometimes larger in number, is for the most part agreed upon by all estates or classes of the Landschaften at a general Landtag, and set to work so that the territorial lord will know whom he needs to call upon in the above-mentioned cases.

Furthermore, as the course of events and time would have it, such a committee is authorized by all territorial estates for such matters that otherwise belong to the entire Landschaft, and when the territorial lord then comes to an agreement with those of the committee, this is just as good and valid as though it had been transacted at a regular Landtag. […]

Chap. V. Of the administration and governance of the secular regime, in accordance with previously established rules, how this is the duty of the territorial lord and how he is to use councils and servants to that end

In the previous chapters we have explained how the nature of the government of the territorial prince in secular matters consists of four main points, and how these are moderated and circumscribed on account of various perspectives; it now remains to report how such a government is conducted in all its points.

§ 1. This much must be shown in the present chapter, first, that the territorial lord should administer the main work of his government mostly through his own person, to which he is obliged not merely by the divine order, by force of which he lives in the status of authority, but also by the praiseworthy custom, law, and authority of his land and people, and of the entire German land, provided that he is not compelled by necessity, because he also has land and people elsewhere, or because of a high campaign in matters of war and the Empire and the like, to be absent temporarily or regularly, in which case he must nevertheless place a reputable governor, and councils assigned to him, at the head of the state, and at least sometimes be present himself. For the history of the most praiseworthy German regents shows how they, from time immemorial, proved themselves brave, conscientious, loyal, and diligent in their high calling of superior office, that the subjects can notice and sense that their born, natural hereditary lord carries not only the name and title, but also the exercise and burden of governing.

By contrast, the examples of other lands, in cases where the territorial lords did not carry out their governing, but devoted themselves to other, unnecessary matters, and left everything to their servants or even spent too much time outside the land, show that as a result of such neglect of their calling, all kinds of disorder, injustice, and great ruin afflicted their land and people, and the subjects often also became rebellious and demanded a different and better regime.

§ 2. Now, this personal exertion, or proper exercise of the office, is demonstrated above all in that the territorial lord strives, first, to know in detail the true makeup of his land and become acquainted with it; which is done through an exhaustive description of everything in the land that belongs to him or his territorial estates, in terms of land, cities and villages, people, subjects and servants, courts and justice, or because he knows these things from long experience and inspection, and thus knows how far and over what his power and government extends, and how he must keep measure therein toward the Empire, his friends, and the subjects themselves, on account of common decrees, treaties, and other authorizations, as we have so far laid out in the immediately preceding chapter.

Source: Hn. Veit Ludwig von Seckendorff, Teutscher Fürsten-Staat. . . . Die neueste Auflage [German Princely State. . . . The Newest Edition]. Jena: Meyerische Buchhandlung, 1737, pp. 31-78.

Reprinted in Helmut Neuhaus, ed., Zeitalter des Absolutismus 1648-1789 [The Era of Absolutism, 1648-1789]. Deutsche Geschichte in Quellen und Darstellung, edited by Rainer A. Müller, volume 5. Stuttgart: P. Reclam, 1997, pp. 152-68.