The Legal Claims of the Head of Name and Arms of the Royal House of Aragon Before the Law
The rights of Don Francesco Mario II as fons honorumwere recognised in two separate decisions of the Italian Courts, namely those of the District Court of Bari (13th March 1952, n. 40/51 RG.) and of the Tribunal of Pistoia (Single Section, 5th June 1964).
The following extract from the judgement of the District Court of Bari is particularly significant:
The House of Paternò, the surname of which was originally Aragona of Ayerbe and of Paternòy, has retained many rights jure sanguinis. Among those rights is that designated fons honorum or the nobiliary faculty of granting and confirming coats of arms and of bestowing predicates based upon places over which its ancestors formerly exercised sovereign rights, as well as the right to found, revive, reform and exercise the Grand Magistry of its own dynastic Orders of chivalry, which right descends from father to son as an inalienable heritage.
The decision quoted above is in line with the constant orientation of the attitude of the Italian Courts in such matters, from the District Courts up to the Supreme Court of Appeal (Rome, District Court, Sect. VII of 10th September 1948; Catania, District Court, 11th April 1960; Rome, Court of Appeal, III Penal Sect., 11th July 1958; Rome, Court of Appeal III Penal Sect., 23rd June 1959 and many others in the District Courts of Rome, Milan, Bari, Sant’ Agata di Puglia, etc.)
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 judgements, civil and criminal, albeit some very recent, all of which tend as a rule to the acceptance of traditional principles re-enunciated not long since. The issue is that of innate nobility – Jure sanguinis – which looks into the prerogatives known as jus majestatis and jus honorumand 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.» (Furno, op.cit.). A notable example of this principle is that of the People’s Republic of China which for a considerable time was not recognised and therefore not admitted to the United Nations, but which nonetheless continued to exercise its functions as a sovereign state through both its internal and external organs.
The prerogatives which we are examining may be denied and a sovereign state within the limits of its own sphere of influence may prevent the exercise by a deposed Sovereign of his rights in the same way as it may paralyse the use of any right not provided in its own legislation. However such negating action does not go to the existence of such a right and bears only on its exercise (op.cit.)
The eminent author concludes:
To sum up, therefore, the Italian judiciary, in those cases submitted to its jurisdiction, has confirmed the prerogatives jure sanguinis of a dethroned Sovereign without any vitiation of its effects, whereby in consequence it has explicitly recognised the right to confer titles of nobility and other honorifics relative to his dynastic heraldic patrimony. In particular it has defined the above-mentioned honorifics, among which are those non-national Orders mentioned in Article 7 of the (Italian) Law of the 3rd. March 1951 which prohibits private persons from conferring honours. As to titles of nobility, while their bestowal is legitimate, it must be observed that they receive no protection whatsoever from Italian law, which no longer recognises statutory nobility, in accordance with the principles enshrined in the Constitution of the Republic. Thus, the concept of the usurpation of a nobiliary title fall outside of Italian legislation
However, the conferring of a title of nobility may be legitimised and validated by a decision of the judiciary (op.cit.) as has been done in the instance of the above-mentioned judgement of the District Court of Bari of 13th March 1952 in the case of the State vs. Umberto Zambrini. The study by Professor Furno may be complemented by researching the material in the pertinent study by Advocate G. Pensavalle de Cristofero: «Questions on the deliberations of the Magistry» (Secolo d’Italia, 28th February 1959) and in that by Professor Renato de Francesco: «The legitimacy and validity in Italy of non-national chivalric Orders» (Rome. 1959).
The ordinary judiciary, which in Italy is the usual magistry including in respect of nobiliary and chivalric matters, has identified thus in Don Francesco Mario II (grandfather of the present Head of Name and Arms of the House of Aragon, Don Francesco) the characteristics of a Subject of International Law and as such has declared him not to be punishable for a breach of Article 7 of the Law of 3rd March 1951 in the light of ample documentation which turns upon:
- Certificates of the civil authorities;
- Genealogical tables from Oriol, Count of Aragon (809) to the then Pretender and Head of Name and Arms of the House of Aragon;
- Letter from the Procura del Re, Catania 18th May 1851;
- Letter from Giovanni Paternò Castello di Carcaci, Catania, 20th May 1851;
- Circular from the Intendant of the Province of Catania, 30th March 1853;
- The Family Pact of 14th June 1853;
- Certificate of the Royal Commission on Titles of Nobility, Naples, 2nd February 1860;
- Decree of Francesco II King of the Two Sicilies, Gaeta 16th September 1860;
- Decision of the District Court of Bari, 3rd March 1952;
- Decision of the Court of Justice of Pistoia 5th June 1964;
Also upon authoritative publications of unbiased origin:
- Francesco Paternò Castello: «The Order of the Collar, Patrimony of the Most Serene Royal House of Paternò», Catania 1851.
- Francesco Tornabene: «Funeral Oration of Francesco Paternò Castello, Duke of Carcaci», Catania 1854.
- Rivista Araldica: «The Royal and Aragonese origins of the Paternò of Sicily», Rome, 1913, pp.330-335.
- Rivista Araldica: «Former sovereign houses of the Italian states and national families derived from them or from foreign dynasties», Rome 1992 (pp. 295-346)
- V. Spreti: «Historical Encyclopaedia of the Italian Nobility», volume V, Milan 1932.
- Libro d’Oro della Nobilta Italiana, 1920-1932, Rome.
- Claudio Santippolito: «From Aragon to Paternò», in «il Ghibellino», nos. IV-V, December 1960.
- Labarre de Raillicourt: «Kings and Queens of Spain», Les Cahiers de I’Histoire, no. 6, January 1961 (pp. 134-138).
The attentive reader will ask himself how is it that, among all the branches of the House of Paternò, a cadet branch and particularly that of Paternò Castello e Guttadauro, the Princes of Emmanuel, was chosen as the bearer of the family’s royal rights.
Let us recollect that the choice was made by means of an actio familiae in Palermo on the 14th June 1853, at which all the heads of the various branches of the House of Paternò attended and the gathering examined the precedents by which a princely or royal family is authorised to determine its own principles of succession.
In the Family Pact, transcribed as a deed by the notary Gioacchino Accardi, it is stated that Don Mario I was chosen as representative of the family to carry its royal rights «because he alone has in his veins the royal blood of Aragon from two sources» as a Paternò and as a Guttadauro. To the superficial objection that the transmission of the Aragonese claims, as also that of the title of Prince of Emmanuel, it is to be specified that the Salic Law doies not run in Aragon, since this is effected through the female line, and the same holds true for Sicily (G. Galuppi, «The present state of the Nobility of Messina», Milan, 1881, pp.1-23) as is demonstrated moreover by the Constitutions In Aliquibus of King Federico II of Sicily which admitted succession in the female line (Constitutiones Regni Siciliae, liber 3, tit.26). It 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.
The pretensions of the Head of Name and Arms of the House of Aragon, at present Don Francesco Paternò Castello e Guttadauro, Duke of Perpignan by right, are made manifest in the exercise of his sovereign powers.
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).
According 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 even when he is no longer reigning (Furno, op.cit.).
Since all power is thus centred 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 honours and privileges, jus honorum (G.B. Ugo, Bascape, 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.
The House of Paternò Ayerbe Aragona, having established its right of pretension to the Aragonese Crowns, has not only restored, as is its right, the Order of the Collar, which according to tradition was founded in the Thirteenth Century by the Kings of Majorca, but has also restored the Order of San Salvador of Aragon (1859) founded by Alfonso I in 1118 but has also founded de novo Orders such as that of the Royal Balearic Crown (1861), the Royal Order of James I of Aragon (1970) and the Order of Saint George and the Double Crown.
The question of the validity of non-statutory Orders of chivalry such as those which are not State Orders (of either a monarchy or a republic, as the case may be) or of equal standing (such as the Sovereign Military Order of Malta) is closely bound up with the question of sovereignty.
In confirmation of the aforegoing the Ordinary Tribunal of Ragusa on the 17th February 2003 pronounced its judgement published in the Official Gazetter of the Region of Sicily no. 19 of the 9th May 2003, part III.
The Italian Law of 1953 admits the existence of non-national Orders and distinguishes them from State Orders, as being conferred by other than private societies or associations. With the exception of the Sovereign Military Order of Malta, we may, broadly speaking, identify two types and say that non-statutory Orders are none other than non-national Orders. Among the latter we may disregard the capitulary Orders which elect their own Grand Masters and we may concentrate upon those which have been founded by dynasties, which may not in fact be now reigning.
According to the above-mentioned Law, such Orders are legitimately conferred and as such valid.
Although the so-called International Commission for Orders of Chivalry in its Report (Edinburgh, 1978), while recognising in principle the legitimacy and the quality of fons honorum of a non-reigning sovereign house sought to limit this principle defining as «Sovereign House» one «whose sovereign rank was internationally recognised at the time of the Congress of Vienna in 1814 or later» and thus one of those whose sovereign rank was internationally recognised at the time of the Congress of Vienna or later. The above mentioned Commission is nothing more than a private association made up of persons who possess a common ideology and common interests, none of which is, as we shall see, compatible with nobiliary and chivalric law.
In fact Prof. V. Powell-Smith writes («The Criteria for Assessing the Validity of Orders of Chivalry» in «Nobilitas», Malta, 1970):
… there is no valid reason, legal or other, to limit Sovereign status in such a way by reference to 1814 or any date at all. The Congress of Vienna merely effected the settlement of Europe after the Napoleonic Wars, and nothing more. There have been changes in the political structure of Europe have occurred since 1814 (as well as before) as, for example, the establishment of the Balkan kingdoms and the unification of Italy. The sovereigns of those kingdoms which ceased to exist before the Congress of Vienna acted as fontes honorum during their reigns and will continue to exercise sovereign rights thereafter. The purpose of the Congress of Vienna was to reorganise the territorial boundaries of European states. Certain states, the existence of which had been effectively terminated the by Napoleonic settlement were not re-established but were integrated into larger units, the sovereign princes willingly accepting such an arrangement which retained their rights as princes but removed their former territorial rights. The rights of fontes honorum not represented or discussed at the Congress (because they had no interest in its decisions which related to de facto territorial adjustments) could not have been affected by what was decided at the Congress or later arguments ex silentio on the question.»
The legal rights of the House of Paternò Ayerbe Aragona precede the Congress of Vienna by many centuries and the matter of the sovereign status of the House implies an examination of its legal status, which has already been carried out in the light of the judgements of the Italian Courts on the matter and we are aware that those judgements are authoritative. The said author continues that «Nobiliary jurisprudence assigns to a princeps natus a nobility by birth» and such a quality attaches to the Head of a Sovereign House no longer reigning and to his successors forever (P. Arnone, Diritto Nobiliare Italiano, Milan, 1935, p.189). Also where an absolute monarchy has changed into a constitutional one, as is the case of the United Kingdom, the Sovereign is fons honorum as far as dynastic and familial Orders are concerned and maintains his prerogative as far as the bestowal of nobiliary titles. This is the case of mere personal rights and consequently it is necessary to discriminate between the Sovereign in his personal quality and the Crown (Sir Ivan de la Bere, «The Queen’s Orders of Chivalry», London, 1964). Therefore a dethroned sovereign and his successors maintain the right to bestow Orders and to continue to exercise the jus honorum and the jus majestatis. In other words, if there has not been any debellatio (an expressed renunciation of royal rights) a Prince and his successors maintain all their dynastic rights and privileges.
A fairly recent historical example, reported by the author(The Armorial, Vol. III, p.129) is that of Don Jaime de Borbon y Battenberg, Duke of Anjou and Segovia, deceased a few years ago, who defined his position in a letter addressed to the head of a branch of the House of Bourbon: «Dear Cousin, I wish to make known to Your Royal Highness that my renunciation of the Throne of Spain does not in any way affect the rights and privileges which belong to me in the capacity of the Head of the House of Bourbon. These are transmitted according to the hereditary law of my family to my sons Luis Alfonso and Carlos Gonzalo, born of my legitimate marriage with Emanuelle de Dampierre of the Dukes of San Lorenzo». Don Jaime in his quality of aine salique was Grand Master of the Order of the Golden Fleece, which he in fact conferred, as it transpires from a document in our possession. In a letter to Don Francesco Mario II, Prince of Emmanuel, he addressed him as «Dear Cousin» and ascribed to him the style of Royal Highness.
It is clear that the concept of sovereignty may have different applications in reference to the sovereignty of a modern state as distinct from that of a Pretender. Generally speaking the sovereignty of a state is exercised within the ambit of a definite territory, upon a population (either the subjects of an absolute monarchy or the citizens of a republic) in an international context. In the case of a Pretender his sovereignty is exercised neither within the ambit of a territory nor upon a population nor in an international context.
The absence of a territory is not a determining factor; its possession is in fact subject to political vicissitudes, which have no bearing on the rights and the legitimacy of the pretension of a Pretender. In his case the concept of a population of subjects is replaced by that of the supporters who, by one means or another, uphold his cause. The international context is subject to political assessments and to the relative policies of governments, which in a changed view of the state (the will of the people has replaced the divine right of sovereigns) do not recognise the pretensions of once reigning Sovereign Houses unless they enter into the perspectives of the pursuit of the well defined ends of international politics.
It is clear that henceforth, as it has been for some time, modern states will not recognise either Pretenders or non-national Orders of chivalry.
That does not mean to say in the case of many Orders or of formerly reigning Sovereign Houses that they are condemned to a limbo of parchment and tinsel. Titles and Orders conferred by the Head of Name and Arms of the Royal House of Aragon Majorca and Sicily have been bestowed to honour high personages in the fields of religion, diplomacy, politics, culture and the arts in every part of the world.
Institutions such as the Royal Majorcan Academy, a cultural and artistic centre of learning with representation in many countries, as well as Orders such as the Military Order of the Collar of Saint Agatha of Paternò with its Hospitaller Service are engaged in constant activity pro utilitate hominum and in sustaining the high ideals which are rooted in our Western civilisation.
- Au siege de l’Ordre de la Rose d’Or, 13 Square Henry Pate, Paris. 22 novembre 1962: «A S.A. Don Francesco-Mario,
Prince Paternò, Palermo,
Mon Cousin,Je vous remercie de la bonne lettre que m’a remise, de votre part, l’aimable Marquise de la Maddalena. J’ai ete tres heureux de vous lire et suis touche des sentiments que vous avez bien voulu m’exprimer. Je vous prie, Cher Cousin, de recevoir en retour l’expression de mes bons et affectueux sentiments.Votre Cousin, JAIME, Infante de Espana, Duque de Segovia y AnjouMon affectionne ami, Maitre Emile Seitz, d’Arcois Saint Andre, est charge de vous faire parvenir cette lettre.
- Noi Alfonso di Borbone, Conte di Caserta, per successione nei legittimi diritti del Nostro Augusto Fratello il Re Francesco II delle Due Sicilie, Gran Maestro del Real Ordine di Francesco I, Volendo dare una pubblica testimonianza della Nostra stima e benevolenza al Signor Don Francesco Mario Paternò Castello dei Duchi di Carcaci e Principe d’Emmanuel, Sovrano Gran Maestro dell’Ordine del Collare dei Paternò, erede legittimo del Principe Don Mario Paternò Castello e Guttadauro che tanta benevola distinzione ebbe dal Nostro Augusto Fratello il Re Francesco II e per mostrargli il conto in cui teniamo i suoi sentimenti di attacamento alla Nostra Reale Persona, abbiamo determinato di nominarlo, come col presente lo nominiamo Commendatore del Nostro Real Ordine di Francesco I. In fede di che abbiamo sottoscritto da Nostra Mano il presente Diploma munito del Sigillo delle Nostre Armi.Dato a Cannes, il di 15 maggio 1933(fto.) ALFONSO G.M.