Fürst zu Mindelheim
On 28 August 1704, Emperor Leopold I created General John Churchill des heiligen römischen Reichsfürst (roughly translated: Prince of the Holy Roman Empire). Churchill subsequently was created Prince of Mindelheim on 18 November 1705 by Emperor Joseph I. His only son, John Churchill, had died in 1703 and the imperial titles became extinct after the death of his daughters. His descendent trough the female line was the 11th duke of Marlborough, John George Vanderbilt Henry Spencer-Churchill (1926-2014), duke of Marlborough (England 1702), marquess of Blandford (England 1702), earl of Sunderland (England 1643), earl of Marlborough (England 1689), baron Spencer (of Eyemouth, England 1603), and baron Churchill (of Sandridge, England 1685). In addition, Burke’s Peerage describes him as "Prince of Mellenburg". Noel Cox' excellent paper "Property law and imperial and British titles: The Dukes of Marlborough and the Principality of Mindelheim", addresses whether this is correct:
The title of prince of the Holy Roman Empire was conferred in 1704 upon all the children heirs and lawful descendants, male and female, of John Churchill, the first duke of Marlborough. The title of prince of Mindelheim was granted in 1705 to all male descendants and daughters of the first duke. But following the Treaty of Utrecht in 1713 and the Treaty of Rastatt in 1714 the principality passed to Bavaria. The right of the dukes of Marlborough to use the style and title was thus lost, and any residual rights would have expired in 1722 on the death of the duke, as they could not pass to a daughter (unlike his British titles). Despite this it is still common practice to describe the Duke of Marlborough as a Prince of the Holy Roman Empire and Prince of Mindelheim. This paper considers the differences in the treatment of the descent of the British and imperial titles
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The present duke of Marlborough enjoys his British titles, not because of any special remainders in the patents of creation, but because of an Act of Parliament. This Act had no bearing upon the imperial titles conferred upon the first duke, which thus descended in accordance with their original instruments of creation.
The title of prince of the Holy Roman Empire, conferred in 1704 upon all his children heirs and lawful descendants, male and female, expired in 1751 with the death of his younger daughter, Lady Mary Churchill, duchess of Montagu (who was this also entitled to be known as Princess Mary Churchill). The imperial titular principality was not what would be called in English law an estate in tail general. It is rather a titular honour held by grant which contained a limitation to all male descendants and daughters, or what might be called an estate in tail male general.
Similarly, the title (and principality) of prince of Mindelheim, granted in 1705 to all male descendants and daughters, would have reverted to the emperor in 1722, as it could not pass to a daughter without a special remainder. However, the principality had already passed to Bavaria. The right of the duke of Marlborough to use the style and title was thereupon lost. Even the title of prince of Mellenburg would have expired in 1722.
As recipients of unprecedented imperial honours, it is fitting that the greatest monument to the great duke in England, Blenheim Palace, should be entailed to the dukes of Marlborough for all time. But it is a pity that the imperial honours were not subject to special remainders, so that the current duke might enjoy them too.
Cox, N. (2009). Property law and Imperial and British titles: The Dukes of Marlborough and the Principality of Mindelheim, pp. 1 and 25.
After the Treaty of Utrecht (1713-1714) led to the loss of his Principality of Mindelheim, it was discussed between England and Germany to create the 1st Duke of Marlborough, Fürst of Nellenburg (not 'Mellenburg', see Coxe 1822). Nellenburg originally was a county or landgraviate (German: Landgrafschaft) in southwestern Germany. It passed to Austria in 1465, when the Counts of Nellenburg (House of Tengen) sold the county to the Habsburg's. Austrian law did not allow for the elevation into a sovereign jurisdiction though, and the plan to compensate Churchill with Nellenburg was dropped in or after 1717. Nellenburg, therefore, never became a sovereign part of the Holy Roman Empire.
Cox thinks that the imperial honour is lost forever: "it is a pity that the imperial honours were not subject to special remainders, so that the current duke might enjoy them too.". I think, however, that it would be very easy for the family to obtain a 'declaration of no-objection' (German: Nichtbeanstandung) from the German Association of Nobiliary Law (German: Deutscher Adelsrechtsausschuß) of the regional German nobility associations. The extinction of a branch, like in the Churchill-case, is a classic occasion for granting such a declaration. This would lead to inclusion of the family with their imperial titles in the German nobiliary handbooks (German: Gothaisches genealogisches Handbuch). I cannot explain why Charles Spencer, 3rd Duke of Marlborough, KG, PC (1706-1758), the second son of Charles Spencer, 3rd Earl of Sunderland and Lady Anne Churchill, the second daughter of forementioned John Churchill, 1st Duke of Marlborough and his wife Sarah Churchill, Duchess of Marlborough, is mentioned on page 401 in the Genealogisches Handbuch des Adels (GHdA), Fürstliche Häuser Band III (1955) as Fürst of the Holy Roman Empire and Fürst von Mindelheim. On the same page, the GHdA correctly states that the diploma does not provide in a succession of the title in the female line.
The foregoing leads me back to the Cox' initial question: 'is it correct to describe the Duke of Marlborough as a Prince of the Holy Roman Empire and Prince of Mindelheim?'. As mentioned earlier, the extinction of a family branch under German pre-1919 law was a classic example of allowing another branch of the family to continue the use of the title. This is in accordance with the intention of the issuer to create a hereditary title. The Deutscher Adelsrechtsausschuß does not confirm the use of a nobiliary title, but only issues declarations of no-objection. It is therefore perfectly in line with nobiliary traditions (see Heiner Baron v. Hoyningen gen. Huene, Der Deutsche Adelsrechtsausschuss) to continue using - with or without the forementioned declaration - the imperial titles of Prince of the Holy Roman Empire and Prince of Mindelheim. I do not see any objections, especially because the fact that the monarchy was abolished and nobiliary privileges are no longer recognised, are unforeseen circumstances, which are of such a nature that the involved parties, according to criteria of reasonableness and equity, are entitled to use the title in a modified form. They were - and should remain - very closely attached to the family.
A subsequent question is what, according to EU law, the current legal status of such title is. I will therefore examine a second case.
Fürstin von Sayn-Wittgenstein
The Counts of Sayn were first mentioned in the 10th century. Assumedly, they were minor Counts to the Pfaltzgraves (Counts Palatine) in the Auelgau. The proven genealogy of the family starts with the brothers Eberhard and Heinrich, Counts of Sayn in 1139. Currently, four dynastic branches of the House of Sayn have survived. Alexander Konrad Friedrich Heinrich Prince zu Sayn-Wittgenstein-Sayn (1943 in Salzburg, Austria), a German businessman, MBA (Harvard Business School 1968), is head of the House Sayn-Wittgenstein-Sayn. Prince Alexander is the vice-president of Europa Nostra, an NGO focussing on the preservation of Europe’s cultural and natural heritage, and the president of the Deutsche Burgenvereinigung (source: sayn.de).
In 1979, one member of the family, Elisabeth Gertrud Fürstin von Sayn-Wittgenstein (* 1927) married Bruno Lothar Koch, who subsequently started a business selling the name 'Fürst von Sayn-Wittgenstein' through adult-adoption. Currently, through a chain of adoptions, the name has been transferred more than 50 times among unrelated people. The chain started with a morganatic marriage:
Hermann Eugen Adolf Bernhard Franz Ferdinand August Prinz zu Sayn-Wittgenstein-Hohenstein (1845 - 1921), renounced his membership of the House Sayn-Wittgenstein-Hohenstein on 23 January 1905, because of his morganatic marriage, but was granted the title Fürst von Sayn-Wittgenstein for himself and his issue on 30 January 1905. He married 25 January 1875 Gertrude Katharina Westenberger (1851 - 1921). Son:
- Alexander Fürst von Sayn-Wittgenstein (1876 - 1947); married 1926 Albertina Schmalix (1894 - 19--). Daughter:
- Elisabeth Gertrud Fürstin von Sayn-Wittgenstein (1927), married in 1979 Bruno Lothar Koch, through mediation of the notorious title broker and former window dresser Hans Hermann Weyer.
One of the adoptees in the chain was Ilona Fürstin von Sayn-Wittgenstein, an Austrian national, residing in Germany. After adoption by another German adoptee, Fürst von Sayn-Wittgenstein, her surname became “Fürstin von Sayn-Wittgenstein”. Ilona had lived for almost 15 years under the surname “Fürstin von Sayn-Wittgenstein” in Germany which had left numerous traces of a formal nature in both the public and private sphere, such as driving licences, social security records et cetera. Though in the beginning the Austrian authorities acknowledged her new surname “Fürstin von Sayn-Wittgenstein”, they later amended it as “Sayn-Wittgenstein”, notwithstanding the objection of Ilona Sayn-Wittgenstein). The lawsuit that followed is known as the Sayn-Wittgenstein v Landeshauptmann von Wien case; a landmark case before the European Court of Justice concerning the attribution of nobiliary names in case of adoption.
The Austrian law on the abolition of the nobility has constitutional status according to Art 149(1) of the Austrian Constitution. The legislation on the abolition of the nobility provides that both the use of the nobiliary particle “von” and designations of noble status, such as prince / “Fürst” should be abolished. Ilona Sayn-Wittgenstein argued that the discrepancy in her names is such as to hinder the exercise of the rights enshrined in Art 21 of the Treaty on the Functioning of the European Union, since she would be under an obligation to dispel doubts regularly. To force a person to use a surname which differs from the one he/she acquired in a Member State is liable to hamper the exercise of the right to move and reside freely within the territory of the Member States.
However, the EU is committed to respect the national identities of its Member States, which include the status of the State as a Republic. The European Court of Justice ruled that it is not disproportionate for Austria to protect the principle of equal treatment by prohibiting any acquisition, possession or use, by its nationals, of titles of nobility or noble elements, which may create the impression that the bearer of the name is the holder of such a rank. In such circumstances, a refusal cannot be regarded as a measure unjustifiably undermining the freedom to move and reside enjoyed by citizens of the Union.
The sale of titles as a form of business as described above, is an example of irregular use of the laws of adoption, because they breach the traditional family values, normally present between parents and their adopted child. When adoption becomes a cold business operation, the principle of family life is neglected. This form of adoption hurts the family members, because they are confronted by non-related persons, who create the appearance of belonging to their family. However, such titles are perfectly embedded within public law, contrary to the previous example. This means that whether ancient titles are embedded within public law cannot be the sole criterium for historical regularity of legitimacy.
Conclusions
In some situations, like in the Mindelheim-case, ancient nobiliary titles cannot regain an official, regulated status, because the monarchy has been replaced by a republic and revival is impossible. The Sayn-Wittgenstein-case shows that even an official status is not always an optimal situation, when it comes to protecting a family's cultural heritage. The legal concept of 'private life' could provide a solution in situations where it becomes necessary to embed an unregulated nobiliary title within the law, for example in cases where others could try to usurp a title.
The European Court of Human Rights (ECHR) can be accessible in cases where an individual files a complaint against a contracting state. An example could be the prohibition to use a nobiliary title. The ECHR cannot judge cases between individuals. The Court has established that personal choices as to an individual’s desired appearance, whether in public or in private, relate to the expression of his or her personality and thus fall within the notion of private life, protected by art. 8 of the European Convention on Human Rights (Convention). The ECHR has defined the scope of art. 8 broadly, even when a specific right is not set out in the article. However, its scope is not limitless. The applicability of article 8 has been determined, in some contexts, by a severity test (Denisov v. Ukraine [GC], §§ 111-112 and 115-117 with further references). Once a legal act is found to have seriously affected a person’s private life, his complaint will be admissible and an issue of the “right to respect for private life” will arise.
These insights seem purely academic, but they are not. In 2011, the cantonal judge in Maastricht, The Netherlands, falsely sentenced the legitimate son of Countess Marion Wolff Metternich to a fine of E 300,-- for using his mother's nobiliary title. The mother was the last heiress of the family and the son had obtained a change of name by Royal Decree into Wolff Metternich. The matter was a disgusting example of abuse of power by the Dutch High Council of Nobility (Dutch: Hoge Raad van Adel). I have discussed the case earlier in detail. Another example of infringement of private life was committed by the Austrian government, in 2019, when Archduke Karl von Habsburg was found guilty of illegally using the 'von' predicate in the internet domain name karlvonhabsburg.at. The Austrian Constitutional Court rejected the Archduke's complaints. It is a pity, that the complaint was not based on infringement of private life.
Under certain circumstances, Convention rights may also generate horizontal direct effect, that is, rights and obligations between private parties. This can be of interest when an ancient nobiliary title is usurped or when a person falsely uses another family's title. In such cases the national courts are competent to deal with the matter and art. 8 of the Convention can be used to substantiate the legal position of the victim. A bizarre example of identity theft by falsely using noble titles can be found here.
Advice
- Use ancient titles on a regular basis, even when - due to unforeseen circumstances - the rules of succession, as stated in the diploma, need to be modified according to criteria of reasonableness and equity. This tightens the connection between the title and the family and therefore, makes it more plausible that the title is part of a person's or family's private life.
- Register the title as an internet domain name and explain on the webpage how the title is connected to the family. This way, the private use of the title is made public and it becomes hard for a person with bad intentions to defend himself by stating he did not know about the infringement of private life.
- Publishing a declaration stipulating the title transfer in a government gazette is a good instrument for ruling out discussions about the specific date and content of the declaration. Publication is usually considered sufficient to comply with legal requirements for public notice. A list of government gazettes can be found here. An example of a declaration recorded in the London Gazette can be found here.
- Clarity regarding the transfer of unregulated titles can also be achieved by making provisions in a will. It lets a person determine how (s)he would like the title to be used upon her/his death.
- Even the German association for nobiliary law does not issue judgements disapproving the transfer of ancient titles within a family, because the association does not consider itself to be the final authority is these matters. Although everybody is entitled to an opinion, in the end, third parties do not have any authority in such matters. It is for the family itself to decide how to transfer its nobiliary titles when there are no regulations present. This also is a matter of private life.
- I recommend forming a family association, which regulates the transfer in order to avoid arbitrariness and to create a legal substitute for the former, monarchical regulations. It is not strange at all that the use and transfer of titles evolves. There is no reason to stick with the defunct regulations that once applied with respect to the original diploma, when this would lead to extinction of the cultural heritage, embodied by the title. Extinction of the title is certainly not what the issuer would have wanted.
Sources
- James, S. (1999). Burke’s Peerage and Baronetage 106th edition. Edited by Charles Mosley. Burke's peerage & gentry is available as a fully searchable online database.
- Cox, N. (2009). Property law and Imperial and British titles: The Dukes of Marlborough and the Principality of Mindelheim. Tijdschrift Voor Rechtsgeschiedenis / Revue D'Histoire Du Droit / The Legal History Review, 77(1-2), 191-210. doi:10.1163/004075809x403433.
- Coxe, W., Marlborough, J. C., & Hauer, F. A. (1822). Herzogs Johann von Marlborough Leben und Denkwürdigkeiten: Nebst dessen Original-Briefwechsel aus dem Familien-Archive zu Blenheim und andern ächten Quellen gezogen. Wien: Schaumberg.
- Gerhard Köbler: Historisches Lexikon der deutschen Länder. Die deutschen Territorien vom Mittelalter bis zur Gegenwart. 7., vollständig überarbeitete Auflage. C.H. Beck, München 2007.
- Barber, Peter. “Marlborough as Imperial Prince, 1704-1717.” The British Library Journal, vol. 8, no. 1, 1982, pp. 46–79. JSTOR, www.jstor.org/stable/42554468. Accessed 1 Aug. 2020.
- Case C-208/09 Ilonka Sayn-Wittgenstein v. Landeshauptmann von Wien, Court of Justice of the European Union (Second Chamber), 22 December 2010.
- Gerards, J. (2019). Vertical and Horizontal Effect. In General Principles of the European Convention on Human Rights (pp. 136-159). Cambridge: Cambridge University Press. doi:10.1017/9781108652926.006.
- Phillipson, Gavin. “The Human Rights Act, 'Horizontal Effect' and the Common Law: A Bang or a Whimper?” The Modern Law Review, vol. 62, no. 6, 1999, pp. 824–849. JSTOR, www.jstor.org/stable/1097159. Accessed 1 Aug. 2020.
- European Court of Human Rights, Guide on Article 8 of the European Convention on Human Rights, p. 51.
Photo
Christian Lue, @christianlue, Berlin, Germany, Flag of European Union on top of German Reichstag.
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