Brunner, O., Land and Lordship

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Brunner, O., Land and Lordship
  U niversity of Pennsylvania Press MI LE GES SERIES dited y dward eters Henry Charles Lea Professor of Medieval History University of Pennsylvania A complete listing of the books in this series appears at the back of this volume and and ordship Structures of Governance in Medieval Austria Otto Brunner Translated from the fourth, revised edition Translation and Introduction y Howard l(aminsky and James Van Horn Melton U niversity of Pennsylvania Press Philadelphia  Translated from Otto Brunner, Land undHerrschaft. Grundfragen der territorialen Verfassungsgeschichte Óster- riechs im Mittelalter. Unveranderter reprografischcr Nachdreuck der 5 Aufiage, Wien, 1965. Copyright 1984 by Wisscnschaftliche Buchgesellschaft, Darmstadt. English translation copyright 1992 by the University of Pennsylvania Press. Ali rights rescrved Printcd in the Unitcd States of America Library of Congress Cataloging-in-Publication Data Brunner, Otto, 1898-[Land und Herrschaft. English J Land and lordship : structures of govcrnance in medieval Austria Otto Brunner ; translatcd from the fourth, rcv. ed., translation and introduction by Howard Kaminsky and James van Horn Mclton. p. cm. -(Middlc Ages series) Translation of: Land und Herrschaft. Includcs bibliographical rcfercnccs and index. ISBN 0-8122-8183-7 r Fcudalism-Austria. 2. Fcudalism Gcrmany Bavaria. 3 Austria Constitu- tional history. 4. Bavaria (Gcrmany)-Constitutional history. I Titlc. II. Series. JN1623.B7513 1992 321'.3'09436-dc20 91-31649 CIP Contents List of Abbreviations Translators' Introduction Author's Preface to thc Fourth, Rcvised Edition (1959) Chapter I Peace and Feud r Politics and the Feud. The history of power and the history of law. Feud and plunder in political history. 2. Four Feuds: An Introduction to the Problem. Wenzel Scharowetz von Scharowa against King Ferdinand I, 154 . Georg von Puchheim against Emperor Frederick III, 1453. The lords of Liechtenstein against Dukc Albrecht III of Austria, 1394· The compact between King Sigismund of Hungary and Duke Leopold of Austria in regard to feuding in each other's territory, 1405. These actions cannot be comprehended in the concepts of modern pub lic and international law. 3 Basic Concepts. The state, power at the disposal of individuals, Territorial Peace Landfriede). The feud. Peace; friendship, enmity. Vengeance. Oaths renouncing the right to feud. Enmity and vengeance in modern legal thinking. Peace in the household and among kin. Peace in the land. The idea of he feud as a special case of peacelessness presupposes a positive legal order in the modcrn scnse. Persistence of he feud throughout the Middle Ages. Prohibitions of the feud. Al forms of feud and non-peace are enmity. Terms for the feud in the primary sources. Can war and feud be distinguished? 4. The Feud in Practice and in Law (a) The Legal Foundatwn: Legal feuds and illegal, willful feuds (plunder, tyranny). The execution of willful opponents in a feud. The invocation of divine law. (b) The Obligatwn to Feud. ( c) A Legal Complaint as the Precondition 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 feuds and mortal enmity. Full and limited powers of feuding. Those who feuded: rulers, Estates of thc empire, nobles, ecclesiastic Xl Xlll lxiii 9 14  v1 Contcnts 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 ofburghers and peasants. Peter Passler. The feud and the peasants' sense of Right. e) The Challenge Absage: defiance ): The declaration of feud (challenge) as obligatory. To maintain honor. Observance ofthe term 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 of tribute. The rclationship between tribute and plundering and burning, the office of ncendiary and incendiary rights in Carinthia. (g) Limits to the Feud: The house. Illegal force, deprivation of rights. The house of God. Those who do not have the right to feud. Exemption of enemy property granted to the church under advocacy. Property under guardianship and pawned property. During an expedition outside the territory. Transgression of these limits. (h) Consequences of he 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. The feud presupposes an idea of aw and rights different from the modern. The unity of power and Right in the feud. Feud, politics, constitution. Chapter II. State, Law, and Constitution I State'' and Society . The modern idea of the state. State and lordship. 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 manuals of German legal history are disposed according to modern categories. The constitution in these manuals is understood in the nineteenth-century sense. The separation of public and pri vare law. Sovereignty. The principie of dclegation of powers. The juridical personality of the state. History and dogmatic forms of thought. The manuals of Austrian imperial history. Disjunction of state and society, constitution and administration, in the modern sense. Separation of power and Right. Untenability of l1e usual terminology. 3. TheMedieval View ofLaw. God and law (dasRecht). The unity of law and the just. The rcligious foundation, the eternal divine 9 95 95 02 II Contcnts v11 order (Ewa). No division between divine and positive order in the thinking of he laity. The Good Old Law. Resistance. The idea of sovereignty was alien to the Middle Ages. The historical reasons for this. The need to understand the medieval constitution on the basis of the medieval idea of aw. 4. The Controversy over the German Medieval State. The distinction between a patrimonial state and the state as a jurídica] person carne out of the poli ti cal issues of constitutionalism in nineteenth-century Germany. Conservative and liberal interpretations. Rudolph Sohm. Georg von Bclow. Otto von Gierke. Gerhard Seelinger, AdolfWaas, AdolfGasser. Max Weber. Otto Hintze. 5. Our Task. The demand for a conceptual vocabuláí-y in accord with tl1e primary sources. Structural history. Chapter III. The Land and Its Law r The Land, ora Unit ofTerritorial Supremacy? Territorial supremaqr as unitary governmental power. The problem of territorial supremacy in Lower Austria. What is a Land? 2. The Nature ofthe Land. Li:inder and lordships. The Landas thc política] unit of agriculturalists. Tcrra, provincia. The groups dcsignated as the Land. 3. The Individual Territories. Lower Austria. Upper Austria. Styria. Carinthia. Carniola and thc Wcndish March. Cilli. Gorizia. Bavaria., Passau. Salzburg. Bcrchtesgaden. Tyrol. Voralberg et al. 4. The Constitution of he Land: Basic Features. Territorial suprem acy (Landeshoheit) is a precondition. The Land, its law and its people. The Land as a community of aw and of peacc. The individual member of he Land-community and his l10use. Chapter IV. House, Household, and Lordship i. Lordrhip over Peasants Grundherrschaft, the Seigneury). (a) Seigneury or Great Estate?: Public and prívate lordship? Dominium and Imperium. Grundherrschaft not just an economic, prívate structure. Dispersion or dispersa ? Grundherrschaft and the constitution ofthe Land. Dominion. Protection and safeguard. (b) The House as the Nucleus of All Lordship: The lordship takes its namc from the lord's 110use. Thc l10use as an enclave of peace. The power ofthe housc-lord. e) The Substance ofLordship: The lord's favor or grace (Huld). Advocacy (Vogtei), wardship, power. Thc I24 137 139 139 152 165 192 200 200  vm Contcnts subject peasants (Rolden). Loyalty. Homage. (d) Protection and Safeguard: From outsiders. Against other members of he community. (e) id and Counsel: Counsel in the general sense. Actions obligatory under this title. (f) Imposts) Corveé, Military Obligation: The prevailing theory of medieval imposts. Imposts in tl1e individual Lander. Smuggling in of a modern concept of axation. An impost is aid. Kinds of imposts. Excises. Corvée. Hospitality. Military service. (g) Advocacy (Vogtei): Relationship between advocacy and imposts, corvée, military services. Advocacy is protection and safeguard ; the power of he 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 ofLordship Rights: Seigneurial authority, authority over villages, administration and jurisdiction. These rights are not delegated rights. Their character as immunities. (i) Immunity: Origin ofthe legal institution. The privilege of mmunity is not delegation of public rights in the modern sense. The limits of the house and the lordship vis-a vis the Land. Protection and safeguard presupposed for the lord of an immunity. (j) The Structure of Seigneury (Grundherrschaft): Layers of density. Seigneurial authority. Ecclesiastical seigneury. Knightly seigneury. (k) The Relationship Between Seigneur and Subject Peasants: Ali relationships must be seen within the dialectic of protection and aid. Lord and peasant in literature. Infiuence of ords and peasants on peasant custumals. Peasant wars. 2. Tuwn Lordship (Lordship over Burgher Communities). Town lord and burgher community. Burgher and burgher community. 3 Feudal Tenures: Ecclesiastical andLay. The patronate. Feudalism. 291 Chapter V Lordship over the Land; The Land-Community 294 L Lordship over the Land: (a) The Territorial Prince (Landesherr) as 295 Head ofthe Territorial Community: Magistrate in the high court of the Land. Head of the army. (b) The Land Lord (Landesherr) as Lord ofthe Land: His right of dominion over the Land. Advocate (Vogt) of the Land. (e) General Protection: Protecting the peace of the Land. The right of fortification. ( d) Blood J ustice (Blutbann) in the Lower Territorial Courts: Regalian Rights; Feudal Overlordship. (e) Specific Protection. (f) The Fisc in the Wider Sense: Prelates and Towns. (g) The Fisc in the Narrow Sense: The prince's own estates. Baillival courts (Pfleggerichte). Jews. Resident foreigners. Política importance of he fisc The fisc and the jurídica personality of he state. (h) The Concept of Lordship over the Land. (i) Lordship over the Land and Sovereignty: The formula the prince is not bound by the laws (princeps legibus solutus). . Contcnts x 2. ThePeople ofthe Land. (a) The Theory oftheMedievalEstates: The notion of the Estates based on the nineteenth-century concept of society. (b) The Or;ganization of he Land into Estates: Lords/ Knights and squires. P~elates Towns and Markets. Peasant courts. Foundations of the Estates of l1e Land. The Estates of the Land and the fisc 3 The Relationship Between the Lord of he Land and the People of the Land. (a) Diet and Estates in the Prevailing View: The usual definition presupposes the concept of princely sovereignty. The controversy in the Vormiirz over the nature of the Estates. The Tezner-Rachfahl controversy. Otto Hintze. Deputation and representation. (b) The Oath of Fealty (Homage). (e) JointAction in Judicial and Military Matters. ( d) Reciproca Transá'ctions: Counsel and aid. The di et. Negotiation of counsel and aid. Tasks of the di et. Position of the Esta es tl1at pertained to the fisc in the broad sense. (e) The Development of he Dualism,, of Prince and Estates. 4. Summary. Glossary Bibliography Indcx 324 341
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