The Legitimacy of Non Reigning Royal Families

by Salvatore Caputo

  Although recognition of a noble class is most common in monarchies, nobility has historically existed in some republics, such as the Dutch Provinces, Genoa and Venice, and it remains part of the legal social structure of some nonand it remains part of the legal social structure of some nonhereditary regimes, such as San Marino and Vatican City. Special hereditary titles may distinguish nobles from nontinguish nobles from non-nobles, although in many nations, the nobility is untitled, and in others, hereditary titles may not indicate membership in the noble class.

  The phrase "to be a blue blood" means to have descended from noble or aristocratic ancestors. While noble status formerly conferred significant privileges in most jurisdictions, by the 21st century it had become a largely honorary dignity in most societies, although a few, residual privileges may still be preserved legally (e.g. Netherlands, Spain, UK) and some Asian, Pacific and African cultures continue to attach considerable significance to formal, hereditary rank or titles.

  Various republics, including the United States, former Iron Curtain (http://en.wikipedia.org/wiki/Iron_Curtain), and countries, Greece, Mexico and Austria have expressly abolished the granting and/or use of titles of nobility to or by their citizens. This is distinct from countries which have not abolished the right to inherit (formerly) noble titles, but which do not grant legal recognition or protection to them, such as Germany and Italy,Germany and Italy, although Germany recognizes their use as legal surnames. Still other countries and authorities allow their use, but forbid attachment of any privilege thereto, e.g. Finland, France, Norway and the European Union, although French law also protects lawful titles against usurpation, while Norway allows the use of traditional titles by official members of the royal house.

  NON REIGNING DYNASTIES

  Today, almost all countries have a working government that is preside over by Presidents and or Prime Ministers. There are many monarchs around the world who hold important government posts or military commands, even tough they no longer rule over their subjects.

  Even if some monarchy has been long abolished, there are royal families of the world that exist and are treated with respect and honor. Some royal families like the Albania, Georgia, French, Greek, Chinese, Russian and Scottish are known as “Pretenders to the Throne”. The pretender is a claimant to an abolished throne or to a throne that has been occupied by someone else.

  In fact, those sentences that ascertained that the various descendents in the different dynasties held the native right of pretender to the throne granted them the prerogative of granting noble titles and knighthoods in the Orders that their Sovereign House belonged to.

  Non-regnant dynasties, whether in Italy, Germany or elsewhere, play a role in maintaining the cultural and historical identity of Old World peoples. Though hardly essential to the fabric of society, they represent not only peoples but even places. Control of dynastic orders of chivalry is at the root of certain dynastic quarrels. Some of these institutions are very old, and have a canonical position in Church law. Nowadays the few "military-religious" orders serve chiefly philanthropic purposes.

  Dethroned European dynasties continued to enforce their house laws until after World War I, even though they had no legal authority to do so. Some continued doing so through the 20th century (Bourbon-Sicily, Prussia, Wurttemberg). Governments in extant monarchies, without calling the legal mechanisms house laws, have generally strengthened their control over the marriages of members of their royal families since the second half of the 20th century. Previously a prince could often morganatically marry a woman not deemed acceptable as a royal consort, relegating her and their children to a sub-royal status. That is rarely an option anymore. In most Western Europeanmonarchies of today, a prince must renounce or forfeit membership in the royal family if his chosen spouse is not deemed suitable.

  Nobility in Italy

  An entirely different state of affairs exists in Italy. The abolition of the Papal States, the Kingdom of the Two Sicilies, the Grand Duchy of Tuscany, the Duchies of Parma and Modena, and the incorporation of the Austrian dependencies in Northern Italy into a united Italian Kingdom, led to the establishment of a new national nobility, with an attempt (not wholly successful) to impose a uniform nobiliary law.

  Italian nobiliary practices cannot be compared directly to those of other countries, such as Scotland or Russia. Even within Italy, regional differences must be considered because until circa 1870 the nation did not exist as a politically unified state.

  Until the 19th century, the peninsula we now call Italy was made up of many city-states. These independent nations exist under successions of various invading empires of the French, Turks, Germans, Austrians and Spanish. The individual states, although sharing a small geographical space, were each culturally unique. They spoke separate dialects, worshiped in different churches and had unique attitudes. The cultural movement of the 16th and 17th centuries created a sense of nationalism within the future Italy for the first time.

  The Nobility of Italy reflects the fact that medieval "Italy" was a set of separate states until 1870 and had many royal bloodlines. The Italian royal families were often related through marriage to each other and to other European royal families. We must realize than less that 150 years ago Italy was comprised of about 10 separate small countries, and as result, great-great grandfather was not “Italian”, but Piemontese, Toscano, Veneziano, Modenese, Parmigiano, a subject of the Pope, or Napoletano – Siciliano, etc.

  Prior to Italian Unification, the existence of the Kingdom of Sardinia, the Kingdom of the Two Sicilies (which before 1816 was split in Kingdom of Naples and Kingdom of Sicily), the Grand Duchy of Tuscany, the Duchy of Parma the Duchy of Modena, the Duchy of Savoy, the Duchy of Milan, the Papal States, various republics and the Austrian dependencies in Northern Italy led to parallel nobilities with different traditions and rules.

  Although a democratic republic since 1946, Italy boasts two non-regnant royal families as well as three non-regnant grand ducal houses, each of which bestows honors upon Italian citizens. Three sovereign governments exist entirely within Italian borders, and each bestows honors as well. Few Italians are hereditary knights bachelor, forming a kind of Italian baronet age. Indeed, for a nation having no throne, and entertaining no serious plansfor the re institution of a monarchy, the Italian Republic is endowed with a plethora of gentlemen entitled to the ancient address "Cavaliere" (Knight).

  Pretender to a Throne This concept has always been taken on by the ex-reigning Houses who have lost their throne further to final occupation of the territory: in this case, as the situation of debellatio is not applied, the figureof the Pretender Prince to the throne has emerged.

  The Pretender to a Throne, that is a juridical person legally recognized by the International Laws, can act when the debellatio lacks, that is, the losing of the sovereignty. Every Sovereign has to carry on the royal power apart from the way in which he has been deposed. In this way all the titles pertain to the Sovereign and to his descendants, they maintain their nature even if the Sovereign lost the real sovereignty of a Land: we have not to forget that the Sovereignty makes part of the Family Estate (even if it has lost the jus imperii – power to command -, the jus gladii – right to have the obedience of the people – and the jus majestatis

  – the right to have respect and honors).

  A Sovereign can be deprived of his Throne and exiled by a Land, but he can never lose His native quality: in this context take the origin the Pretendant to a Throne. In fact he maintains all his rights to the sovereignty and he can exercise it even if his juridical-institutional status has been changed.

  From Professor Doctor W. Baroni Santos, Doctor D’état in Nobility Law by The University of Reims in France, in his book "Treaty of Heraldry / Nobility Law Vol. I, Book II, chapter I "Jurisprudence of Nobility" page 197:

  "A "Chief of Name and Arms", a title attributed to a Claimant, being by juris sanguinis (law of blood) "heir apparent" of a defunct throne, as long as has not formal
ized a voluntary act of resignation and acquiescence [formalized, not assumed or presumed] to the new political order of the state, according to the classic expression "subito la debellatio", retains, in all its fullness, the sovereign prerogatives of Fons Honorum (Fountain of Honors) and Jus Majestatis (right to majestic dignity). It is a fortiori, the source of nobility and honor, and may, without restrictions, create nobles and arm knights."

  If we do not want to consider Vittorio Emanuele of Savoy as having lost the rank of Pretender to the Throne further to the above dispositions, even if we want to recognize the Prince has the right to the position of Pretender to the Throne further to the lack of debellatio by his father, King Umberto II - the ceasing of the effects of the XIII transitory and final disposition of the Republican Constitution has a double effect.

  A Court sentence of the Republican Italy (Pretoria de Vico Del Gargano, Repubblica Italiana sentence number 217/49) corroborates the above mentioned:

  "(…) it's IRRELEVANT if that Imperial family in no longer ruling FOR CENTURIES, because the deposition don't harm the sovereign prerogatives even if the sovereign renounces, spontaneously, to the throne. In substance, in this case, the Sovereign does not cease to be King, even living in exile or IN PRIVATE LIFE (WITHOUT CLAIMING HIS SOVEREIGNTY), because his prerogatives are, itself, by birth and CANNOT BE EXTINGUISHED, but remains and may be transmitted in time, from generation to generation."

  Professor Emilio Furno, an advocate in the Supreme Court of Appeal, writes as follows ("The Legitimacy of Non-National Orders", Rivista Penale, No.1, January 1961, pp. 46-70):

  “There are not a few judgments, civil and criminal, albeit some very recent, all of which tend as a rule to the acceptance of traditional principles reenunciated not long since. The issue is that of innate nobility - Jure sanguinis which looks into the prerogatives known as jus majestatis and jus honorum and which argues that the holder of such prerogatives is a subject of international law with all the logical consequences of that situation. That is to say, a deposed Sovereign may legitimately confer titles of nobility, with or without predicates, and the honorifics which pertain to his heraldic patrimony as head of his dynasty.

  The qualities which render a deposed Sovereign a subject of international law are undeniable and in fact constitute an absolute personal right of which the subject may never divest himself and which needs no ratification or recognition on the part of any other authority whatsoever. A reigning Sovereign or Head of State may use the term recognition in order to demonstrate the existence of such a right, but the term would be a mere declaration and not a constitutive act”.

  To the superficial objection that involved transmission through a female line (as also in the case of the title of Prince of Emmanuel) it may be replied (cf. V. Powell-Smith: In the Matter of the Sovereign Order of New Aragon and in the Matter of the Government of Antigua and Barbuda, Submission, 1982) that the Salic Law did not run in Aragon and that thus succession could be through a female line and that the same applies to Sicily (G. Galuppi: The Present State of the Nobility of Messina, Milan, 188 I, pp. 1 -23). This is also shown by the Constitutions In Aliquibus of King Federico II of Sicily which admitted succession in the female line (Constitutiones Regni Sicilae, liber 3, tit.26).

  I t is undeniable that the Salic Law applied generally in the Kingdom of the Two Sicilies, but as far as Sicily was concerned its application was subject to the traditional limitations, even under the Bourbon dynasty. Further evidence of this is given in the express recommendations of the Royal Commission on Titles of Nobility (2nd February 1860) and in the Decree of King Francesco II of the Two Sicilies (16th September 1860) both of which support the transmission in the female line of the title of Prince of Emmanuel.

  It is a general principle of nobiliary law that the head of a dynasty which formerly reigned retains jure sanguinis, that is by hereditary right, the faculty of conferring chivalric and nobiliary honours, known as the jus honorum (in the act of so conferring them he is called fons honorum, fount of honours) and retains his sovereign rights irrespective of political changes or territorial considerations. These rights are called rights of pretension from which arises the term Pretender, which indicates that he maintains and / or exercises those rights and enjoys them in perpetuity (cf. Renato de Francesco: The Legitimacy and Validity in Italy of Non-National Chivalric Orders, ed. Ferrari, Rome, p.10).

  A ccording to Salvioli (History of Italian Law, Utet, 1930, p.272) sovereignty as an element of state power sprang from the struggle of the kings against the great feudatories and owes its character of necessity to the resulting concentration of the powers of the state in the hands of the monarch. « Born of feudal origins, this power continued to bear the imprint of the personal property of the Prince, whence derives its transmissibility by hereditary right in perpetuity ». By this doctrine the Prince logically retains his sovereignty always (suprema potestas, whence supremitas, sovereignty) even when he is no longer reigning.

  S ince all power is thus centered in the sovereign, he possesses the political authority, jus imperii, the civil and military power, jus gladii, the right to respect and to the honours of his rank, jus majestatis, and finally the right to confer honors and privileges, jus honorum (G.B. Ugo, Bascap¨, Gorino-Causa, Nasalli Rocca, Zeininger and de Francesco).

  A sovereign, whether actually reigning or a Pretender, may not only confer in particular his dynastic Orders, but may also create new ones and revive those which were founded by his ancestors (this principle has been determined by the Italian Supreme Court of Appeal) without taking into consideration the fact that by the vicissitudes of succession or of politics some of those Orders may have passed in to the hands of another dynasty.

  There is no doubt a Sovereign in exile and his legitimate successor and Head of the Family maintains the jus majestatis and the jus honorum rights; that is the right to grant nobiliary and honorific titles of Knight Orders that made part of the personal dynastic Family’s Estate. No usurper or subsequent government has the lawful power or authority to take away a family's absolute royal or sovereign prerogatives. The Head of the Princely House has the prerogative of the fons honorum.

  Fons Honorum In practice the « ius honorum » (right to grant honours, notably nobility) is materialized in a « fons honorum ». In the monarchies it’s confided to the Sovereign on hereditary basis, as emperor, king, prince, grand duke, etc… In case of deposition, the deposed sovereign or a pretender to the throne who succeeds him by hereditary right (ius sanguinis) stays possessor of fons honorum. Although in general unknown, presidents of republics are also possessors of fons honorum for the time of their mandate. In the officially democratic systems of government, it is the people themselves who are truly sovereign and who possess ius honorum, the right to grant honours which are granted in their name by a fons honorum which is confided to a constitutional sovereign or a president of a republic.

  The extent and contents of fons honorum (according to particular traditions, epochs, places and customs), include honorary distinctions of merit or other titles. This encompasses orders of knighthood, nobility, titles of nobility linked or not to a peerage, noble titles devoid of nobility stricto sensu, recognized coat of arms, etc…

  In recent decades a degree of confusion seems to have developed over whom may bestow honors; this is at least partly due to the emergence of hundreds of false orders.

  Today the legitimate founts of honor who may bestow knighthood are the lawful heads of existing states, heads of non-reigning royal (sovereign) dynasties recognized at the time of the Congress of Vienna in 1814 (hence the numerous German dynasties but not the many soi-disant "pretenders" to the long-vacant Throne of Constantinople), the Holy See (the Papacy), certain de jure governments in exile, a few Orthodox Christian patriarchs and bishops, and the grand masters of a few historical military-religious orders of chivalry (the Order of Malta most notably).

  We should also observe that these institutions, when they belonged to the dynastic wealth of
previously reigning families, were able to reaffirm their position not only historically but also legally.

  In fact, international law recognizes the institution of a non reigning sovereign, which arises if the debellatio is missing, i.e. the loss of sovereignty by waiving right to one’s functions and relative prerogatives involved with exercising power, because the sovereign, no matter how he is dethroned, maintains the right to certain manifestations of reigning power: thus sovereign titles are due to the sovereign as such and his descendents, and remain thus even when he has lost his sovereignty over land, because sovereignty belongs to the family wealth (even if it is deprived of the jus gladii, i.e. the right to obedience by the subjects; the jus majestatis, i.e. the right to respect and honors due his rank; and the jus imperii, i.e. the power of command).

  This means that a sovereign could be dethroned and banished from the country, but he could never lose his native qualities: thus the pretender to the throne arises, who maintains intact all the sovereignty rights as long as their application does not obstacle the changed juridical-institutional position, while the others are suspended. Among the conserved rights is the jus honorum, i.e. the right to grant noble titles and ranks of knightly orders possessed or inherited that are part of the personal and dynastic wealth of the lineage.