Lesson 3 Part 4 Continued
THE INDEPENDENT ORDERS VIS A VIS THE HOLY SEE AND THE ITALIAN LAW
A question of notable significance and of great importance in the field of history and of the Chivalric Laws is that of the Equestrian Orders called "INDEPENDENT". What is their position in the Italian Law, in the Canon Law and in the International Law?
We have already stated previously how these Chivalric Orders were constituted by groups of knights assuming some Rule; or by the will of Kings, or Princes.
We have seen how these institutions had always asked for the approval, or the protection of the Holy See or Church, which somehow or other exercised full power for their reforms. Suffice to mention the suppression of the Templars, the amalgamation of the Order of the Holy Sepulchre to that of the order of Saint John of Jerusalem, and other direct intervention by Popes, like the approval of the transition of the Grand Mastership of the order of Saint Lazarus to the House of Savoia, and that of the Constantinian Order of Saint George to the Farnesi and later to the Borbons.
In reality speaking, these Orders can be classified or divided in four Categories:
a) Dynastic Orders: which belong to a reigning monarch or ex-reigning monarch and definitely not the State.
b) Equestrian Orders: held by a Master General of a Religious Order.
c) Equestrian Orders held by a Bishop.
d) Independent Orders or Private Orders, which have never been approved or controlled by the Holy See, or by a Sovereign State, or by a Dynasty Reigning or not, and therefore they should be referred to as: PRIVATE CHIVALRIC ASSOCIATIONS.
Not to unnecessarily prolong this dissertation I tend to ignore, because of their small value "b" Orders held by a Master General of a Religious order, and "c" Orders held by a Bishop. But "a" and "d" cannot be ignored and not be given the importance they deserve.
(a) DYNASTIC ORDERS
These Institutions form part of the Heraldic Patrimony of a Sovereign House, based on the direct descendents of the same House, independent by whether it is still exercising or not their Sovereignty which in its full exercise hold four fundament rights namely:
1. The "JUS IMPERII" or the right to command and govern.
2. The "JUS GLADII" or the right to impose and demand obedience by their command.
3. The JUS MAESTATIS" or the right to be honored and respected.
4. The "JUS HONORUM" or the right to reward merit and virtue.
When a Sovereign loses his throne and political dominion, without abdication of those rights, and without acquiescence to the new dominion or power, he would definitely suffer unavoidably a decrease in the above mentioned power and rights, by losing the first two prerogatives, namely the "JUS GLADII" which gives him the right to demand obedience and to command, but he will definitely reserve these two prerogatives "IN PECTORE et IN POTENTIAE" as the person who is a PRETENDER to the lost throne.
(These) remain instead intact to the deposed Sovereign the other two rights namely the "JUS MAESTATIS" and the "JUS HONORUM" which in their integrity remain in this particular case his prerogative under the name of "FONS HONORUM" preserving this right in his person and his blood descendents to the sovereign to create nobles, to give knighthoods, and honors in the established Chivalric Orders belonging to his Dynastic House.
This right will be transmitted "AS INFINITUM" to his descendents "JURE SANGUINIS" in the person of the HEAD OF THE NAME AND ARMS of his Dynasty.
It is therefore not by chance, but by God's given right that to this day the Head of the Savoia Dynasty still confers the knighthood in the Order of "SS. ANNUNZIATA" and the Order of SS. MAURIZIOE LAZZARO", both forming exclusive part of his late Sovereign House. Under the same privilege the Head of the AUSBURGE DYNASTY, conferees the Knighthood in the Order of the "GOLDEN TISTLE" (TOSON D'ORO). They have never been challenged to desist from doing so by any government.
In the international Genealogy and Heraldry held in Stockholm in 1960 and during the successive one held in Edinbourgh in 1962, during different sessions of the permanent historical commission for the study on Chivalric Orders, they have defined and established the principles by which we can establish the validity of Dynastic Orders. They also published (a) list called the "Register of the Orders of Chivalry". (This) Report of the International Commission for the Orders of Chivalry <<THE ARMORAL>> LONDON, from which the following text is taken (states):
"1) Tout Etat independent a le droit de creer et de reglementer a sa guise ses propres ordres et decorations de merite. Mais il faut souligner que seuls les degres superieurs des Ordres d'Etats modernes peuvent etre consideres comme vraiment chevaleresques a condition, toutefois, qu'ils sient conferes par la Couronne ou par le Chef pro tempore d'un Etat traditionnel.
2) Les Ordres dits dynastiques ou de famille, appartenant jure sanguinis a des maisons souveraines (c'est-a-dire reconnues internationalement comme telles, au temps du Congres de Vienne en 1814 ou plus tard) soit qu'ils relevent d'une maison actuellement sur le trone, soit d'une maison qui ne regne plus, gardent intacte, en depit des changements de regime, toute leur validite historique et sociale. Ce serait ultra vires si les Etats, qui ont pris la place des aniennes Monarchies, s'avisaient par des mesures legislatives ou autres de s'immiscer dans les affaires interieures des anciens Ordres. Que ces derniers ne soient pas officiellement reconnus par les nouveaux gouvernements n'entache pas leur valeur traditionelle, sur le plan historique, hearaldique ou nobiliaire.
3) Il est generalement admis par les juristes que les ex-Souverains n'ayant pas abdique, et don’t la position est differente de celle de simples pretendants, conservent leurs droits comme<<fons honorum>>, y compris celui de disposer des Ordres dits <<de Couronne>> don’t ils continuent d'etre, a titre personnel, les Grands Maitres et qui n'etant pas, au sens strict, dynastiques, pourraient etre classes, sans cela, parmi ceux d'Etat ou de Merite.
4) Bien qu'autrefois -- il y a plusieurs siecles -- des particuliers de haut lignage aient pu creer des Ordres de Chevalerie independants, qui ayant acquis, par la suite, un prestige considerable purent obtenir d'etre valides formellement par la Courronne ou par l'Eglise, cette faculte de creation est tombee depuis longtemps en desuetude et un Ordre de Chevalerie, tel qu'on le concoit de nos jours, ne saurait exister valablement sans dependre d'une autorite souveraine. Et en etre legitime…"
Translation:
"1) Every independent state has the right to create and regulate as it sees fit - its own orders and decorations of merit. But it must be underlined that only the higher degrees of orders of modern States can be considered as authentic knightly degrees on condition, however, that they are conferred by the Crown or by the Chef "pro tempore” of a traditional State.
2) Dynasty or family Orders, belonging "jure sanguinis" to sovereign houses (i.e. recognized internationally as such, as from the Congress of Vienna in 1814 or later) or coming from a House that is actually on the throne or from a House that is no longer in power, keep intact, in spite of any changes of government all their historic and social validity. It would be "ultra vires" if the States, who have replaced the old Monarchies intend to get mixed up by means of legislative measures or other in the internal affairs of the Orders. That the latter are not officially recognized by the new governments does not diminish their traditional value, in the historic, heraldic or nobility level.
3) It is generally admitted by jurists that ex-Sovereigns not having abdicated and whose position is different from that of simple pretenders, conserve their rights as "fons honorum" including that of disposing of the Orders "of the Crown", of which they continue to be, on a personal level, the Grand Masters, and not being considered as dynastic, can still be classified as forming part of the State or Merit Orders.
4) Although in the past - centuries ago, particulars of noble lineage were able to create independent knightly Orders, acquiring in the process considerable prestige which allowed them to be formally recognized by the Crown or by the Church. This practice is no longer practiced nowadays, and an Order of Knighthood, as it is conceived today, cannot really exist without the dependence of a sovereign authority which gives it its legitimacy. "
For this reason it is very necessary to point out that Jurisprudence, even the most recent has recognized the Sovereign Princely Families, or ex- Monarchs, (the Sovoia of Italy and the Grand Dukes of Moscow), an international juridical position, in all and for all identical as under the International Law, as the one recognized to the Holy See (Vatican) in the period between 1870 and 1929, even if it was an entity without territorial Sovereignty.
Therefore it is proper to point out that Sovereignty is a perpetual quality, firmly connected and united in centuries to all the descendants of the person who has achieved it or revindicated it the firs time "ad infinitum," in the physical person of the Head of the name and arms of the Dynasty, independently of whatever consideration or inquiry of politico - juridical nature, moral of social nature, that the latter can do; and that, as history teaches, cannot absolutely interfere on the quality of the Sovereignty of the holder.
From this principle also follows, that even if the Sovereign abdicates and renounces these rights, it is NULL and VOID in any juridical sense, because these rights, inseparable from Sovereignty, will return to Him, for the fact that He is the Sovereign. So that an eventual abdication, declarative or translative act would acquire juridical effect, it is required that He will DIVEST HIMSELF of His SOVEREIGNTY, that of His RIGHTS and the TITLE as HEAD and NAME and ARMS of the DYNASTY, TITLES, that, in effect, is a particular quality acquired by birth, both in the sense of the State, and in that of a Dynasty which is PERPETUAL, not only in they physical person of the so called Sovereign, even if he is dispossessed, but also by all direct line descendant. (cit. Prof. Ant. ACCOGLI of PREDESKLAVA, LA CASA GRANDUCALE DI MOSCA nella storia", ED. Accademia di San Cirillo, --Rome.)
In Italy two of the most famous amongst the Dynastic orders, which are tied to great ex-Sovereign Dynasties, is worth mentioning. First the Constantinian Order of Saint George which is still being given; The second is the Order of Saint Stephen of Toscany, which for some reason or other is not being conferred any more. One reason some say is that Napoleon, in 1809 signed an Imperial Decree for the Suppression of the Order of Saint Stephen, but juridically he was not competent to do so and therefore this decree was ultra vires, and therefore null and void. The Italian government until a Decree of 1859 again abolished this Order. But again the jurists held that the Italian government was also ultra vires, after taking in consideration of the partial religious nature of the Order.
For this reason heraldists maintain that this Order still exist DE JURE and DE FACTO as a Dynastic Order and the Head of the LORENESE House is still its hereditary Grand Master.
Other Orders belonging to the Grand Duke of Toscany in Italy are, the Order of Saint Joseph, the order of the White Cross or Fidelity, both instituted by Ferdinand the Third, and another is the Order for Military Merit founded by LEOPOLD the Second. These three Orders are considered as Stately Orders (belonging to the State) and therefore have to be considered as ceased to exist (EXTINCT).
The same fate had the Order of SAINT LODOVICO instituted by CARLO LUDOVICO of BORONE in 1836 (PARMA and LUCCA); the Order of Saint GEORGE (LUCCA) and the order dell'AQUILA ESTENSE, under the Patron Saint SAN CANTARDO (MODENA) instituted by FRACESCO V d'ESTE.
There are the princely Orders whose prototypes is the English Order of the Garter (c 1348). These were societies of favored knights gathered around themselves, by Sovereign Princes. Among the Orders of this type are the Most Ancient and Most Noble Order of the THISTLE (Scotland c 1480, and revived in 1687), the Order of Saint MICHAEL and Saint GEORGE, the Order of the BATH, KNIGHTS BACHELORS and the Order of Saint PATRICK, founded in Ireland in 1783 by GEORGE III (no conferment since 1934). The Order of the Holy Sepulchre founded by Henry II. Under this Order RICHARD the LIONHEART captured ACRI. The Knights of this Order profess the Rule of Saint Basil. From Henry II until Henry VII, all English Kings were Crowned and held the title of "DEFENDER OF THE HOLY SEPULCHRE". There was also the Order of the Golden Fleece in 1430 and later was established in Spain and AUSTRIA. It is difficult to say whether these Orders belong to a Dynasty or to the Realms.
|
