Land and Lordship

University of Pennsylvania PressMIDDLE AGES SERIESEdited by Edward PetersHenry Charles Lea Professorof Medieval HistoryUniversity of Pennsylvania

Land and LordshipStructures of Governancein Medieval Austria

Otto Brunner

Translated from the fourth, revised edition

Translation and IntroductionbyHoward Kaminsky and James Van Horn Melton

liflftUniversity of Pennsylvania PressPhiladelphia

Translated fromOtto Brunner, Land und Herrschaft. Grundfmgen der territorialen Verfassungsgeschickte Oster-riechs im Mittdalter. Unveranderter reprografischer Nachdreuck der 5. Auflage, Wien, 1965.

Copyright © 1984 by Wissenschaftliche Buchgesellschaft, Darmstadt.

English translation copyright © 1992 by the University of Pennsylvania Press.

All rights reserved

Library of Congress Cataloging-in-Publication DataBrunner, Otto, 1898-

[Land und Herrschaft. English]Land and lordship : structures of governance in medieval AustriaOtto Brunner ; translated from the fourth, rev. ed., translation and introduction by

Howard Kaminsky and James van Horn Melton,p. cm. — (Middle Ages series)

Translation of: Land und Herrschaft.Includes bibliographical references and index.ISBN 0-8122-8183-7i. Feudalism—Austria. 2. Feudalism—Germany—Bavaria. 3. Austria—Constitu-

tional history. 4. Bavaria (Germany)—Constitutional history. I. Title. II. Series.JNI623.37513 199232i'.3'o9436—dc20 91-31649

CIP

Contents

List of Abbreviations xiTranslators' Introduction xiiiAuthor's Preface to the Fourth, Revised Edition (1959) lxiii

Chapter I. Peace and Feud 1

1. Politics and the feud. The history of power and the history oflaw. Feud and plunder in political history.

2. Four Feuds: An Introduction to the Problem. Wenzel Schärowetz 9von Schärowa against King Ferdinand I,1541. Georg von Puch-heim against Emperor Frederick III, 1453. The lords of Liechten-stein against Duke Albrecht III of Austria, 1394. The compactbetween King Sigismund of Hungary and Duke Leopold of Aus-tria in regard to feuding in each other's territory, 1405. Theseactions cannot be comprehended in the concepts of modern pub-lic and international law.

3. Basic Concepts. "The state," power at the disposal of individuals, 14Territorial Peace (Landfriede}. The feud. Peace, friendship, en-mity. Vengeance. Oaths renouncing the right to feud. Enmityand vengeance in modern legal thinking. Peace in the householdand among kin. Peace in the land. The idea of the feud as a spe-cial case of "peacelessness" presupposes a positive legal order inthe modern sense. Persistence of the feud throughout the MiddleAges. Prohibitions of the feud. All forms of feud and non-peaceare "enmity." Terms for the feud in the primary sources. Can warand feud be distinguished?

4. The Feud in Practice and in Law. (a) The Legal foundation: Le- 36gal feuds and illegal, willful feuds (plunder, tyranny). The exe-cution of "willful" opponents in a feud. The invocation of divinelaw. (b) The Obligation to Feud. (c) A Legal Complaint as thePrecondition of a Lawful Feud: The feud was not merely a subsid-iary legal recourse. Interruption of a feud by a legal complaint.(d) Those Entitled to Feud and Those Who Feuded: Knightly feudsand mortal enmity. Full and limited powers of feuding. Thosewho feuded: rulers, Estates of the empire, nobles, ecclesiastic

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seigneurs, towns. Border feuds. Feud against one's lord. Friends,partisans, and supporters. "Mortal enmity" on the part of bur-ghers and peasants. The forbidden feud of burghers and peasants.Peter Passler. The feud and the peasants' sense of Right. (e) TheChallenge (Absqge: "defiance"): The declaration of feud (chal-lenge) as obligatory. "To maintain honor." Observance of theterm before the feud would begin. Challenges of the supporters.Complaint of an "undeclared" feud. (f) The Means of Feuding:Killing. Taking prisoners. Plundering and burning. Exaction oftribute. The relationship between tribute and plundering andburning, the office of incendiary and incendiary rights in Carin-thia. (g) Limits to the Feud: The house. Illegal force, deprivationof rights. The house of God. Those who do not have the right tofeud. Exemption of enemy property granted to the church underadvocacy. Property under guardianship and pawned property.During an expedition outside the territory. Transgression of theselimits. (h) Consequences of the Feud: Escalation of sanctions. Im-poverishment by feuds. Effects on nonparticipants, on peasants;consequences for their lords. Impact on the pattern of settlement(abandoned villages). (i) Peace (Reconciliation): Armistice.Reconciliation.

5. Feud, State, and the Law. Contemporary judgments of the feud. 90The feud presupposes an idea of law and rights different from themodern. The unity of power and Right in the feud. Feud, poli-tics, constitution.

Chapter II. State, Law, and Constitution 95

1. "State” and "Society". The modern idea of the state. State and 95lordship. The disjunction of state and society. Political history, le-gal history, economic history. The carrying over of modern politi-cal, legal, and sociological concepts into the Middle Ages.

2. Constitutional History as the History of Constitutional Law. The 102manuals of German legal history are disposed according to mod-ern categories. "The constitution" in these manuals is understoodin the nineteenth-century sense. The separation of public and pri-vate law. Sovereignty. The principle of delegation of powers. Thejuridical personality of the state. History and dogmatic forms ofthought. The manuals of Austrian imperial history. Disjunctionof state and society, constitution and administration, in the mod-ern sense. Separation of power and Right. Untenability of theusual terminology.

3. The Medieval View of Law. God and law (das Recht). The unity 114of law and the just. The religious foundation, the eternal divine

Contents vii

order (Ewa). No division between divine and positive order inthe thinking of the laity. The Good Old Law. Resistance. Theidea of sovereignty was alien to the Middle Ages. The historicalreasons for this. The need to understand the medieval constitu-tion on the basis of the medieval idea of law.The Controversy over the German Medieval State. The dis- 124tinction between a "patrimonial state" and the state as a juridicalperson came out of the political issues of constitutionalism innineteenth-century Germany. Conservative and liberal interpre-tations. Rudolph Sohm. Georg von Below. Otto von Gierke.Gerhard Seelinger, Adolf Waas, Adolf Gasser. Max Weber. OttoHintze.Our Task. The demand for a conceptual vocabulary in accord 137with the primary sources. Structural history.

Chapter III. The Land and Its Law 139

1. The Land, or a Unit of Territorial Supremacy? Territorial su- 139premacy as "unitary governmental power." The problem of terri-torial supremacy in Lower Austria. What is a Land?

2. The Nature of the Land. Lander and lordships. The Land as the 152political unit of agriculturalists. "Terra," "provincia." The groupsdesignated as "the Land”

3. The Individual Territories. Lower Austria. Upper Austria. Styria. 165Carinthia. Carniola and the Wendish March. Cilli. Gorizia. Bavaria.Passau. Salzburg. Berchtesgaden. Tyrol. Voralberg et al.

4. The Constitution of the Land: Basic Features. Territorial suprern- 192acy (Landeshoheit) is a precondition. The Land, its law and itspeople. The Land as a community of law and of peace. The indi-vidual member of the Land-community and his house.

Chapter IV. House, Household, and Lordship 200

1. Lordship over Peasants (Grundherrschaft, the Seigneury). (a) Sei- 200gneury or Great Estate?: Public and private lordship? Dominiumand Imperium. Grundherrschaft not just an economic, privatestructure. Dispersion or dispersal? Grundherrschaft and the consti-tution of the Land. Dominion. Protection and safeguard. (b) TheHouse as the Nucleus of All Lordship: The lordship takes its namefrom the lord's house. The house as an enclave of peace. Thepower of the house-lord. (c) The Substance of Lordship: The lord'sfavor or grace (Huld). Advocacy (Vogtei), wardship, power. The

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subject peasants (Holden). Loyalty. Homage. (d) Protection andSafeguard: From outsiders. Against other members of the commu-nity. (e) Aid and Counsel: Counsel in the general sense. Actionsobligatory under this title. (f) Imposts, Corveé, Military Obligation:The prevailing theory of medieval imposts. Imposts in the indi-vidual Lander. Smuggling in of a modern concept of taxation.An impost is "aid." Kinds of imposts. Excises. Corvee. Hospital-ity. Military service. (g) Advocacy (Vogtei): Relationship betweenadvocacy and imposts, corvee, military services. Advocacy is "pro-tection and safeguard"; the power of the lord. Extension of advo-cacy over the dependents of others. Advocacy over foreigners,lodgers, hired-hands. Advocacy over holders of "free" tenancies.Advocacy over free peasants. (h) The Hierarchy of Lordship Rights:Seigneurial authority, authority over villages, administration andjurisdiction. These rights are not "delegated" rights. Their charac-ter as immunities. (i) Immunity: Origin of the legal institution.The privilege of immunity is not delegation of public rights inthe modern sense. The limits of the house and the lordship vis-a-vis the Land. Protection and safeguard presupposed for the lordof an immunity. (j) The Structure of Seigneury (Grundherrschaft):Layers of density. Seigneurial authority. Ecclesiastical seigneury.Knightly seigneury. (k) The Relationship Between Seigneur andSubject Peasants: All relationships must be seen within the dialec-tic of protection and aid. Lord and peasant in literature. Influenceof lords and peasants on peasant custumals. Peasant wars.

2. Town Lordship (Lordship over Burgher Communities). Town 287lord and burgher community. Burgher and burgher community.

3. Feudal Tenures: Ecclesiastical and Lay. The patronate. 291Feudalism.

Chapter V. Lordship over the Land; The Land-Community1. Lordship over the Land: (a) The Territorial Prince (Landesherr) as 295

Head of the Territorial Community: Magistrate in the high court ofthe Land. Head of the army. (b) The Land Lord (Landesherr) asLord of the Land: His right of dominion over the Land. Advocate(Vogt) of the Land. (c) General Protection: Protecting the peace ofthe Land. The right of fortification. (d) Blood Justice (Blutbann) inthe Lower Territorial Courts: Regalian Rights; Feudal Overlordship.(e) Specific Protection. (f) The Fisc in the Wider Sense: Prelates andTowns. (g) The Fisc in the Narrow Sense: The prince's own estates.Baillival courts (Pfleggerichte). Jews. Resident foreigners. Politicalimportance of the fisc. The fisc and the juridical personality of thestate. (h) The Concept of Lordship over the Land. (i) Lordship overthe Land and Sovereignty: The formula "the prince is not boundby the laws" (princeps legibus solutus).

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2. The People of the Land. (a) The Theory of the Medieval Estates: Thenotion of "the Estates" based on the nineteenth-century conceptof "society." (b) The Organization of the Land into Estates: Lords.Knights and squires. Prelates. Towns and Markets. Peasant courts.Foundations of the "Estates of the Land" The Estates of theLand and the fisc.

3. The Relationship Between the Lord of the Land and the People of 341the Land. (a) Diet and Estates in the Prevailing View: The usualdefinition presupposes the concept of princely sovereignty. Thecontroversy in the Vormärz over the nature of the Estates. TheTezner-Rachfahl controversy. Otto Hintze. Deputation and rep-resentation. (b) The Oath of Fealty (Homage). (c) Joint Action inJudicial and Military Matters. (d) Reciprocal Transactions: Counseland aid. The diet. Negotiation of counsel and aid. Tasks of thediet. Position of the Estates that pertained to the fisc in the broadsense. (e) The Development of the "Dualism" of Prince and Estates.

4. Summary. 363

Glossary 365Bibliography 369Index 413

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Abbreviations

AISIGT Annali deWIstituto storico italo-germanico in TrentoAOG Archivfur osterreichische Geschichte

CA Codex AustriacusFRA Fontes rerumAustriacarum. Osterreichische

GeschichtsquellenHHStA Haus-y Hof-, und Sttwtsarchiv, ViennaHK A Hofkammemrchiv, ViennaHSM Herrschaft und Staat im Mittelcdter, ed. H. Kampf,

Wege der Forschung 2 (Darmstadt, 1964).HZ Historische ZeitschriftJLNO Jahrbuchfiir Landeskunde von NiederosterreichMGH Monumenta Germaniae historica

Const ConstitutionesDD DiplomatsDtChron Deutsche ChronikenEp EpistolaeSS ScriptoresSSrerGerm Scriptores rerum Germanicarum

MGSL Mitteilun0en der Gesellschaft fiir SalzburgerLandeskunde

MIOG Mitteilungen des Institutsfiir osterreichischeGeschichtsforschun0

MonHa bs Monumenta HabsburgicaMLOO Mitteilungen des Landesarchivs von OberosterreichsNWVSG Neue Wege der Verfassungs- und SozialgeschichteNOUrk Niederosterreichisches UrkundenbuchNotB l Notizenblatt. Eeilage zum Archivfur Kunde

osterreichischer GeschichtsquellenOOUr k Oberosterreichisches UrkundenbuchOUrb Osterreichische UrbareOW Osterreichische Weistumer

xii Abbreviations

SalzUr k Salzburger UrkundenbuchStUr k Steierisches UrkundenbuchVSWG Vierteljahrsschriftfur Sozial- und WirtschaftsgeschichteZBL Zeitschriftfiir bayerische LandesgeschichteZRG Zeitschrift der Savignystiftungfur Rechtsgeschichte

Translators' Introduction

Few works of medieval history in our century have had the immediateimpact and long-term influence of Otto Brunner's Land und Herrschaft.First published in 1939 on the eve of the Second World War, crowned withthe Verdun Prize by the Berlin Academy of Sciences in 1941, it went intoa second printing in 1942 and a third revised edition in 1943. Interest inand demand for the work continued even after the war among successiveacademic generations in Germany and Austria. Hence a fourth edition waspublished in 1959, revised to take notice of new scholarship and to removeor replace terms and passages reflecting the cultural and political atmo-sphere in which the previous editions had appeared.1 This was to be thefinal version. It was reissued in a fifth edition of 1965, a sixth edition in1973, and it is still in print. Discussion of the work continues, and if thetone has become increasingly critical, Brunner's theses nevertheless con-tinue to define the critical issues and will do so for some time.

Outside Germany, however, the book's cult has been limited to a rela-tively small number of scholars interested in its German and indeed Aus-trian subject matter, ready to read its often difficult German, and willingto consider an adventure in rethinking called for in 1939 under auspicesthat today seem more or less odious. But this may change: an Italian trans-lation2 came out in 1983, and now there is the present English translationwhich, we modestly note, is unique in providing both an index and abibliography. If we also offer this introductory discussion of the book'sbackground, theses, and critical reception, it is because, like the sponsorsof the Italian translation, we suppose that those unfamiliar with the pasthalf-century of debate about German constitutional history may requiresuch an access—especially, we may add, if they are to consider using Brun-ner's ideas in non-German contexts. It is not a matter of repeating what isstated clearly enough in the book itself, but rather of drawing attention tothe problematics of the subject—both those responsible for Brunner's en-terprise in the first place, and those generated by the book and its impact.This at any rate is why we have thought it necessary to include some ex-plicit discussion of the Nazi matrix of the first three editions. The National

xiv Translators' Introduction

Socialist context is evident not only in Brunner's own enthusiasm for theAnschluss and for the Third Reich itself, but also in the continued relevanceof these matters to the scholarly controversies over the book's theses.

i. Otto Brunner (1898-1982): Life and Career

Otto Brunner was born on 21 April 1898 in Modling, near Vienna. Hisfather was a judge, his mother the daughter of a vineyard owner.3 Twoyears later his father died, and in 1909 his mother remarried, to a careerofficer in the Austrian army, of peasant origin and modest military rank.The family moved to Jihlava (Iglau) in Moravia, a city of twenty thousandGermans and four thousand Czechs, where Brunner attended the Gym-nasium from 1909 to 1914. The family then moved to Brno (Briinn), anoverwhelmingly Czech city with, however, a German Gymnasium thatBrunner could attend. He graduated in 1916 and joined the army as a re-serve officer trainee, subsequently seeing action in the World War. Afterthat he entered the University of Vienna and in 1921 was admitted as astudent to the university's Institutfur osterreichische Geschichtsforschung. Atthis time he married Stephanie Staudinger, the daughter of a district at-torney. Both had been raised as Catholics but by the time of their marriagewere registered as Protestants and were in fact anticlerical. A survivingfriend from those days recalls that Frau Brunner was a Socialist.4

Brunner's doctoral dissertation "Austria and Wallachia, 1683-1699,"written under Oswald Redlich, was completed in 1923. That year he alsopassed his state examinations and was given a post in the Vienna Haus-,Hof-y und Stctatsarchiv^ where his task was to catalogue the archives ofAustrian noble families. At the same time he worked on his HMlita-tionsschrift, "The Finances of Vienna from Its Origin into the SixteenthCentury," which was accepted in 1929 on the strong recommendation ofAlphons Dopsch. He could now teach at the university as a Privatdozent,then in 1931 he was appointed an "auxiliary" (extraordinarius} professorwith the approval of Hans Hirsch, who had just become the Institute'sdirector and who would remain Brunner's chief patron. By now, however,he also enjoyed the esteem of other scholars and when a "regular" (ordi-narius) professorship fell vacant at the German Karlsuniversitat in Praguehe was second on the list. He would in fact receive such an appointmentat Vienna in 1941 after the incumbent Hans Hirsch died, and Brunner alsosucceeded his patron as director of the Institute.