Dynastic Prerogatives


According to the ancient teaching of the doctrine, the Sovereignty, in its full exercise, includes the explication of four fundamental rights:

1. JUS IMPERII, that is, the right to command;
2. JUS GLADII, that is, the right to impose obedience through command;
3. JUS MAJESTATIS, that is, the right to be honoured and respected;
4. JUS HONORUM, that is, the right to award merit and virtue.

When a Monarch is turned out of the political domination of a territory, without him having made any act of abdication or of acquiescence of the new political order, he undergoes a “compression” of two of his rights (jus imperii and jus gladii), which he nevertheless preserves “in pectore and in potentia”, in his quality of claimant to the lost throne. On the contrary, he completely keeps the exercise of the other two rights (jus majestatis and jus honorum) which form his particular prerogative, called FONS HONORUM, deeply rooted in his sovereignty function, which explicates itself in the faculty to “create nobles and arm knights” in the Knight Orders of dynastic-familiar collation of his family.

This right is conveyed jure sanguinis to infinity, to one’s descendant, in the person of the “Chief of name and Arms of the Dynasty”, from which the principle of English public law “Rex non moritur” emanates, in the sense of a dynastic-functional perpetuation of such Royal Prerogatives.

Historically, this is explained as the Monarch (absolute or constitutional Monarch) exerts a mandate “for grace of God”, bound to the theological principle “omnis potestas a Deo”. Because of its divine nature, this chrism can’t have any limits, as well as, likewise, the “Exiliated Government” preserves the political mandate until it is revoked by a new free popular consultation.

The Monarch can lose “Prerogatives” only as consequence of a political capitulation, under the form of abdication, renounce, vassalage, acquiescence, all of which are called “debellatio”.

Consequently, there follows a juridical distinction between “overthrown Monarchs” and “not overthrown Monarchs”, that is to say, between Monarchs who have accepted the new political Order, which involves the loss of any sovereign right of Pretension, and Monarchs who have suffered violent or fraudulent dethronement (vim aut clam): in this latter case, there is no loss of rights, on behalf of the fact that free consent is lacking, and as well as it happens in private law, violence, fraud and error impugns contract for nullity (art. 1427 Cod. Civ).

In this sense, the doctrine, from the most ancient to the contemporary one, had expressed itself.

Formerly, the philosopher Thomas Hobbes, great follower of Bacon, asserted in his “Leviathan” (1651) that the Monarch, in losing the territory where he exerts the “jus imperii” and the “jus gladii”, preserves in full efficacy all the other rights related to his Sovereignty.

In fact, it is natural that the territory can’t be “subject”, but “object” of the Sovereignty, as the sovereign power is exerted upon it, therefore, being submitted to this power, the territory can’t be part of that same power.

The fact that the Sovereignty can be disjointed from the territory is confirmed by the juridical position of the S.M.O.M., of the Holy See since the 1870 “Concordat”, of the International Red Cross, of the Society of Nations, lately become United Nations.

During the seat of February, the 14th, 1951, hon. Casinovo, in supporting the juridical position of the S.M.O.M. against the opinion of his opponent hon. Nasi, in the Report to the law 3.3.1951 n. 178 at the Parliament, noticed:

"As far as the Sovereign Military Order of Malta is concerned, a juridical question has been raised, that is, whether the Sovereignty can exist without a territory on which it can be exerted. It seems to me that this problem can be nowadays considered as overcome because, actually, there are organs whose international juridical personality is not only acknowledged, but which also have a Sovereignty and do not exert any government on a territory, like, for instance, the International Red Cross and the United Nations.

There are therefore, with full acknowledgement in the international field, International Juridical Personalities, absolutely devoid of territory, as well as “Sovereign Orders”, without subjects nor territory."

Some authors have expressed themselves in conformity with the theories of Thomas Hobbes, like Savaron in the “Treaty of the sword”, Gaufredus in “De bello loco”, P. Onorato do Santa Maria in his “Historic and critic dissertation upon ancient and modern chivalry”; more recently, Santi Romano (Consitutional Law-Padua-Cedam-1932); Piero Chimienti (Constitutional Law-Turin-Utet-1933); Oreste Ranelletti (Institute of public law-Padua-Cedam-1934); Vincenzo Orsini (La giurisprudenza-Milan-Giuffrè-1936) Giovanbattista Cauca (It. Digest 1923) and Giorgio Cansacchi and Gorini Causa-University of Turin; Bascapè-University of the Holy Heart in Milan.

Bascapè asserts exactly:

"The princely Family once Sovereign preserves its dynastic character and its Chief “preserves the title and the attributes of the last defeated Monarch, with the title of Claimant”."

Such principles are confirmed by opinions of famous jurists, as dr. Ercole Tanturri, once First President of the Court of Cassation, who was joined by prof. Leonardo Puglionisi, teacher of canon law at the University of Rome, and dr. Raimondo Jannitti-Piromallo, Section President of the Court of Cassation (Journal of Araldic and Genalogy n. 7-12 Dec. 1954) who also writes: ”The Sovereignty is a perpetual quality, indelibly connected and linked in the centuries to the whole descendance of the one who first conquered or claimed it, and fulfils itself in the physical person of the Chief of Name and Arms of the Dynasty, independently from any other consideration or inquiry of political, juridical, moral or social nature which might be made about him, and which, as History teaches, can’t influence its Sovereign quality.”.

In the person of the defeated Monarch, beside the legitimate exercise of the Grand Mastership of his Knight Orders, there remains that special indelible quality that makes him “fons honorum”.

That juridical concept refers to an old canon of nobility law, according to which nobility is a “quality” before than a “title”. Therefore, even in the not acknowledgment of nobility titles on the part of the republican order, it remains an indelible historical reality.