We often come across a plethora of articles and postings of baseless statements with respect to dynastic law. Apparently, anyone thinks they can determine who’s real and who’s not. Usually, it’s people with absolutely no knowledge or credentials about the subject, just a popular social media account.
But sometimes even people with apparent credentials and pompous academic titles make absurd nonsensical statements.
Let’s establish something very important. The best orthopedic doctor in the world is not fit to perform brain surgeries just because he’s a doctor. The fact that one is a historian with a doctorate, or a lawyer doesn’t make this individual automatically an expert in dynastic laws of succession. In the same manner, an expert in European laws of succession is not, ipso facto, an expert in African laws of succession, and so on.
Many questions arise since the bonafide sources of information are very rare. We will try to answer some of them here.
Can a deposed sovereign and/or the heirs keep the titles legally after the deposition? If yes, how long?
First of all, there’s no such hermetic code of international law. The jurisprudence recognizes the existence of “governments-in-exile” of the deposed monarchs as hereditary by the “jus sanguinis” (law of blood) “ad aeternum” and “ad perpetuam”. In other words, as long as there’s blood it’s forever unless all the lawful heirs expressly abdicate their rights. That abdication must be done by an express legal instrument without any vice like ignorance through deception, fraud, undue influence, duress, threat, or some other unlawful means, etc. Then, all the rights are forfeited.
Another problem is the lack of competent courts to rule over claims. In the case of deposed monarchies, we cannot expect current republican courts to be fair to rule over past kingdoms’ issues, for obvious reasons of conflicted rights. It’d be the same as having someone from one of the teams of a match serve as the referee.
The closest to a competent court to rule over such claims would be the International Court of Justice of the United Nations, however, its statutes of 1945 are very clear:
“Chapter II
The Court’s Competence
Article 34
1. Only States may be parties before the Court.”
So, a priori, no personal claim can be examined or judged by the International Court of Justice of the United Nations.
The deposed monarch’s sovereignty does not depend on territory, people, politics, etc. To understand it fully, it’s necessary to comprehend all the sovereign rights and powers:
“Ius Imperii” – the right to command and rule a territory;
“Ius Gladii” – the right to impose obedience through command and also control armies;
“Ius Majestatis” – the right to be honored and respected according to your title;
“Ius Conferendi” or “Ius Honorum” – the right to award titles based on merit and virtue.
There’s a simplistic way to explain a complex process. There are “two kinds” of sovereignty related to “Ius Imperii” and “Ius Gladii” – one called “de facto” (by fact) and the other “de jure” (by right). Both need to be attached to a territory and a people (in other words, a State). A “third sovereignty” is related to the other two rights “Ius Majestatis” and “Ius Honorum“, and it is related to a dynasty and a family and not dependent on a State.
Regular courts can analyze claims regarding “Ius Majestatis” and “Ius Honorum” since their existence falls into the category of “immaterial inheritance”. However, those courts cannot decide over “Ius Imperii” and “Ius Gladii“, especially if those courts are based on a territory previously ruled by the sovereign family in question since that would fall on the aforementioned case of conflicted rights.
Is there any organization or “commission” with legal powers to recognize sovereign claims and/or orders of chivalry?
No. But before explaining why, we would like to state, that we believe that many of those “commissions” have good intentions and very serious and respectable members. Our disagreement is in the field of ideas. We even applaud the initiative of bringing more ethics and scholarship to the world of the orders of chivalry.
There’s no so-called “official” legal organization to recognize royal or noble claims. All of the “commissions” are mere independent associations with no legal authority.
Again, International Law recognizes the idea of a “government-in-exile” but doesn’t codify any kind of clear rules for its existence. Hence, nobody can say with absolute authority that this or that claim is germane or not. According to international law, to accredit a claim, governments, ruling sovereigns, and heads of traditional churches, may recognize it with value. But, in the same way, the lack of any recognition doesn’t mean, necessarily, a false claim. Scholars can be the most trustworthy source of appraisal, but even they cannot state anything as decisive.
Some commissions try to convince naïve people that they can recognize or accredit titles of Nobility or from Orders of Chivalry.
Only the lender Sovereign House can do such a thing. If a title or knighthood was granted by the House of Bourbon, for example, only the current Head of the House of Bourbon can ultimately decide if the title or knighthood is valid or not. All titles and honors belong to the lender House. It’s their immaterial patrimony and therefore only the lender House in fact can decide the validity of such titles. Without a doubt, in reigning monarchies, there are special courts to rule over such claims, but those courts would decide based on the authority granted by the Sovereign House that bestowed the titles.
What about the criteria that some so-called “commissions” establish for recognition?
Well, any private organization has the right to create any criteria it deems valid since their recognition has no legal value, it’s a mere opinion. However, if we inquire about the actual legal and logical sense for that criteria we fall into some antinomies and contradictions. For example, one commission establishes that:
“1. Every independent State has the right to create its own Orders or Decorations of Merit and lay down, at will, their particular rules. But it must be made clear that only the higher degrees of these modern State Orders can be deemed of knightly rank, provided they are conferred by the Crown or by the “pro tempore” ruler of some traditional State.”
Well, if they can “lay down, at will, their particular rules” and you’re stating that “only the higher degrees can be deemed of knightly rank” it’s not only contradictory but it’s a direct interference on an independent State’s sovereignty.
Let’s hypothetically imagine a member of the parliament of a republic proposing a law that creates a new order of chivalry and all its ranks are knightly ones. The law it’s approved by the parliament and goes to the head-of-State to be sanctioned. Theoretically, the head-of-State is the legal embodiment of the “Fons Honorum”. By signing the law, “ipso facto” that order exists legally according to international law, and no “commission” in the world can deny it!
Let’s imagine that the law that created the order determines that the mayors of the country’s capitals will confer the ranks, not the head-of-State. When the head-of-State signs the law, he’s granting the “Jus Conferendi” to the mayors and the order is still legally valid. It’s the same as the sovereign delegating to a prince the accolade of a knighting ceremony. The bestowal is by the sovereign, but he/she can perfectly delegate even the appointments. The same happens in Papal orders. The honor is given by the Pope’s authority but can be suggested or recommended by a cardinal or a patriarch or even a bishop. Usually, the Pope doesn’t even know who was invested since he appoints a cardinal surrogate to perform the investitures.
“2. The Dynastic (or Family or House) Orders which belong jure sanguinis to a Sovereign House (that is to those ruling or ex-ruling Houses whose sovereign rank was internationally recognised at the time of the Congress of Vienna in 1814 or later) retain their full historical chivalric, nobiliary and social validity, notwithstanding all political changes. It is therefore considered ultra vires of any republican State to interfere, by legislation or administrative practice, with the Princely Dynastic Family or House Orders. That they may not be officially recognised by the new government does not affect their traditional validity or their accepted status in international heraldic, chivalric and nobiliary circles.”
The aforementioned has absolutely no base on any principle of international law ever written.
According to the former president of the Italian Supreme Court of Cassation (the highest court in Italy) Professor Doctor Renato de Francesco in 1959:
“… It’s simply ridiculous, from a legal point of view, the distinction intended to be done about Dynasties that have reigned until recently of those who ruled in the distant past. It’s not understandable how you can launch at the foot of numerous pages of history, only to give luster to this or that family, who, aided by good luck, has managed to remain on the throne, after the year 1815. A dynasty either reigned or not reigned. If reigned, even in a very remote time, deserves the historical and legal treatment as a dynasty and all its effects.”
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 affected 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 fons honorum during their reigns and will continue to exercise sovereign rights thereafter. The purpose of the Congress of Vienna was to reorganize 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 fons 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.”
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“3. It is generally admitted by jurists that such ex-sovereigns who have not abdicated have positions different from those of pretenders and that in their lifetime they retain their full rights as “fons honorum” in respect even of those Orders of which they remain Grand Masters which would be classed, otherwise, as State and Merit Orders.”
Another legal antinomy. You can either accept that the heirs of deposed sovereigns inherit the “Fons Honorum”, or not. They state that a lawful heir from a deposed monarch doesn’t have the power to create new orders of chivalry or merit. The prince pretender has only the right of keeping the orders created by the ancestor while ruling. That creates a legal paradox since this process is not created “by magic”, the sovereign rights of “Jus Majestatis” and “Jus Conferendi” (“Fons Honorum”) are passed to the lawful heir by blood (“Jus Sanguinis”), as aforementioned, these rights are not dependent on a State (as “Jus Imperii” and “Jus Gladii” are) and that’s why they can continue with the lawful heirs. If “magically” only the valid orders were the ones created while in power, the sovereignty and the “Fons Honorum” would reside on the juridical person of the organization (order), not on the sovereign blood! It’s the same thing as your grandfather leaving you a house as an inheritance and someone with no legal authority tells you that you can only live there from Monday to Thursday.
Either the “Fons Honorum” passes by blood or not! The lawful heir or prince pretender of a deposed dynasty exercises his “Fons Honorum” every time a knight is invested. That has nothing to do legally with the date that the order was created and if it was created during the reign or not!
The only thing here vaguely based on some tradition is the fact that the lawful heir of a deposed sovereign usually doesn’t use the regnal title like “king” or “emperor”, he commonly uses the title of “prince” or “duke”. Or, he can write “De Jure” (“By right”) King of … after his name and princely title. That tradition is more common in Europe, some African monarchies crown their sovereigns even in exile.
According to the late Professor Dr. W. Baroni Santos, Doctor D’état (post-doctorate/habilitation) from the University of Reims in France in his book, “Treaty of Heraldry and Nobility Law” Volume II page 52 wrote:
“Neither the elapsed time, even for centuries, nor nonuse of the acts of sovereignty exercised by the Prince Pretender, Head of Name and Arms of his house, maybe derogated, prescribed, or canceled. He/she retains these rights until the end of times ‘ad perpetuam dei tenendam’ which are inserted in the person of Prince Pretender.”
Such principles are confirmed by the opinions of famous jurists, such as Dr. Ercole Tanturri, once the First President of the Court of Cassation [the highest court in Italy], who was joined by Prof. Leonardo Puglionisi, Professor of canon law at the University of Rome, and Dr. Raimondo Jannitti-Piromallo, Section President of the Court of Cassation (Journal of Heraldic and Genealogy n. 7-12 Dec. 1954) who also writes:
“The sovereignty is a perpetual quality, indelibly connected and linked, in the centuries to the whole descendancy of the one who first conquered or claimed it, and fulfills itself in the physical person of the Chief of Name and Arms of the dynasty, independent 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.”
Here is an extract from the book “Studies on Nobility Law” (Estudos sobre Direito Nobiliário), by Dr. Mario Silvestre de Meroe, pg. 65:
“It is worth mentioning also that the princely families, with the sovereign attributes, require no recognition by the government of their country of origin, or submit any record in countries where its members settle in residence. The dynastic and political independence is based on Sovereignty itself, which guides their social existence and regardless of any legal recognition, with respect to dynastic and private affairs. “
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:
“The qualities which render a deposed sovereign 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 recognized 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.” (Furno, op.cit.)
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“5. The recognition of Orders by States or supranational organisations which themselves do not have chivalric orders of their own, and in whose Constitutions no provisions are made for the recognition of knightly and nobiliary institutions, cannot be accepted as constituting validation by sovereignties, since these particular sovereignties have renounced the exercise of heraldic jurisdiction. The international “status” of an Order of Knighthood rests, in fact, on the rights of fons honorum, which, according to tradition, must belong to the Authority by which this particular Order is granted, protected or recognised.”
Again a vain attempt to limit a State’s sovereignty. By international law, there’s the principle of sovereign equality between monarchies and republics, large and small States. Although in practice the most powerful countries have more leverage on the international stage, legally they’re all the same.
Looking back to item number 1 the commission states that:
“1. Every independent State has the right to create its own Orders or Decorations of Merit and lay down, at will, their particular rules. But it must be made clear that only the higher degrees of these modern State Orders can be deemed of knightly rank, provided they are conferred by the Crown or by the “pro tempore” ruler of some traditional State.”
Another legal antinomy: if the State has the right to create its own Orders and the “pro tempore” ruler of some traditional State” can confer a knightly rank, one cannot limit the power of the head-of-State (“Fons Honorum”) to recognize an order or a title.
Even if a particular sovereignty “have renounced the exercise of heraldic jurisdiction” it can perfectly and lawfully, either by creating a new order or recognizing another one, “ipso facto” restore the heraldic jurisdiction, unless specifically and expressly forbidden in the country’s constitution.
If a sovereign State has the power of withdrawing from international treaties with no need of a valid reason (see. Russia recently withdrawing from the 1968’s NPT – Treaty on the Non-Proliferation of nuclear weapons) the impossibility of the restoration of the heraldic jurisdiction – an integral State’s prerogative being a domestic issue – it’s a complete absurd!
By all the above, we can conclude that, if we agree on the fact that the “Jus Conferendi” (“Fons Honorum”) is passed by blood (“Jus Sanguinis”) there’s no valid reason in international law to limit it in any way, shape, or form, its powers without gravely violating the “De Jure” rights of a Deposed Dynasty.
We also reccomend the reading of the following articles:
THE ROYAL HERALD 
2 thoughts on “Misunderstandings about the legal bestowal of honors (“Fons Honorum”)”