Discussion:
Reorganisation of the House of Wettin (Saxony)
(too old to reply)
Uwe Schollmeyer
2003-07-16 16:18:07 UTC
Permalink
I recently got in contact with Mr Christoph Jestaedt,
leading judge at the Administrative Court of Dresden (=
Leitender Richter am Verwaltungsgericht Dresden), author and
constitutional historian. This man is interviewed about the
succession dispute of the albertine line of Saxony at the
web-site
http://www.freundeskreis-haus-wettin.de/wo_der_chef_des_hauses_ist.htm

Obviously, he is close to the present Margrave and he
opposes the views of the "Rüdiger-branch".
In a phone call this morning we spoke about some
constitutional issues with regard to the dispute. The talk
itself was not very informative, because his argumentation
was IMHO quite weak for a leading law expert. But as I
introduced myself as a non-expert for constitutional law
(having learned everything basically from heraldica.org and
the ATR-posts by Mr. Velde), I was eventually in a too weak
posistion to challenge his views. What I could do is only to
point out some arguments that Messr. Velde, Sainty, Steward
etc.would surely have been used in a dispute with such a
man.
The way he uses the old laws is somehow selective, but
always in favor of the present margrave's view. Some
examples: On the one hand he points out that Prince Rüdiger
is from a not-ebenbürtig marriage, on the other hand he
holds the opinion that the Deutsches Adelsarchiv is by far
too conservative when it is about the descent of the Afifs.
He recognizes the rights of the Ernestine line in the
Erbverbrüderung, but still does not recognize that some
consent with them would have had to be sought before the
installation of Afif as heir. He says that there is some
sense in forbidding adoptions by the King (resp. Head of the
House), but argues that the adoption of Prince Alexander
S.-Gessaphe has legal effects on the succession. And so on
and so forth.
As I said earlier: I do not share the position of any
involved party. But I was astonished with how much
pragmatism the margraves side is arguing. Basically they do
not want anybody from outside Saxony (although the margrave
lives in Switzerland IIRC and Afif lived in Mexico),
especially not any Hohenzollern or Ernestine-saxon prince.
Mr Jestaedt seems to favor some kind of "dictatorship" by
the head of the house.

What I found most interesting is the issue of
Erbverbrüderung. Mr Jestaedt told me to read pp. 47-62 of
"Das Staatsrecht des Königreichs Sachsen" by Otto Mayer
(1909), which I did. Only afterwards I came about Mr Velde's
ATR post
http://groups.google.com/groups?selm=9pv5b6%24jdo%241%40bob.news.rcn.net
in which he gives a short outline of the relevant parts.
What strikes me is the wording of the relevant
constitutional paragraph §7: "In Ermangelung eines durch
Verwandtschaft oder Erbverbrüderung zur Nachfolge
berechtigten Prinzen geht die Krone auf eine aus
ebenbürtiger Ehe abstammende weibliche Linie ohne
Unterschied des Geschlechts über." which translates as "In
the absence of a/one (?) prince by right of relationship or
Erbverbrüderung, the crown will pass on ...etc. ...".
The german language is not quite clear whether only "a"
prince or exactly "one" prince has to be missing for
applying the rest of §7. If one reads "one prince" then the
Erbverbrüderung with the Ernestines cannot apply unless two
of the remaining three Ernestine branches become suddenly
extinct, and hence the subsidiary Erbverbrüderung with Hesse
can also not apply. (I regard the Erbverbrüderung with
Brandenburg as obsolete because of the partition clause.)
However, if one reads "a prince" then we have surely some
princes left in the Ernestine branch; i.e. the heads of the
three branches jointly. That would lead to a "condominium"
of claimants. Would that be possible ?
Uwe Schollmeyer
2003-07-17 09:12:00 UTC
Permalink
<very interesting post snipped>
Thanks for sharing the information. I am wondering how Saxony will be
treated in the FAQ after the demise of the present claimant... :)
Pierre
I do not think that this is the real problem. Most probably, Albert will be
the last surviving agnate (given that he is 8 and 12 years younger than the
other two). It will then depend on him, whether he feels obliged to the
commitment to make Afif the new margrave or whether he chooses to demorganize
Rüdiger instead. I think the Hohenzollern are practically out of the game.
After the death of Albert (assuming he will really be the last one), there is
no choice to designate the eldest sister (if living) and afterwards the next
one (mother of Afif) if Rüdiger is not demorganized by any agnate. So, we will
see if the FAQ do then still exist in their present form....
Guy Stair Sainty
2003-07-17 16:39:00 UTC
Permalink
In article <3f158609$0$13412$***@nan-newsreader-01.noos.net>, "Pierre
says...
<very interesting post snipped>
Thanks for sharing the information. I am wondering how Saxony will be
treated in the FAQ after the demise of the present claimant... :)
Pierre
The problem is again when heads of former reigning houses attempt to
change the succession because of preference for one relation over
another, disguised under some legal pretext. Without any legal
responsibility and with no tribunal to judge the legitimacy of
such actions, abuses are inevitable. Imagine if, in the 18th
century, George I (of GB), or his son and great-grandson had been as
arbitrary in deciding to eliminate the actual heir? Whatever
the present margrave might feel reasonable, and however much he
(and apparently some atr readers) find the morganatic male line
undesirable, or wish to abandon historic agreements with other
branches of the House, or other royal houses, he is going to be
succeeded in all likelihood by his brother anyway. Who knows
what will be imposed upon the house then?

Guy Stair Sainty
www.chivalricorders.org/index3.htm
Uwe Schollmeyer
2003-07-18 09:31:03 UTC
Permalink
Post by Guy Stair Sainty
wish to abandon historic agreements with other
branches of the House, or other royal houses,
Any such agreements appear to have been voided by law during the Saxon
monarchy, which restricted male-line succession to the royal Albertine
line: http://groups.google.com/groups?hl=en&lr=&ie=UTF-8&oe=UTF-8&selm=9pv5b6%24jdo%241%40bob.news.rcn.net
It all depends on the interpretation of the wording "eines Prinzen" in the constitution. As I have pointed out
earlier in this thread, one could also think of a condominium in Saxony, like formerly Henneberg in the HRE. It
is only O.Mayer's interpretation of 1909 that stands against it.
(...snip...) The eldest of these sisters, Maria Josefa,
has an only daughter, born out-of-wedlock, childless and over 45.
Oh, I did not know that. Could you please give some genealogical details ?
(...snip...) The validity of the eventual claim of the Prince of Hohenzollern
cannot be denied, once the last six Albertine Wettins of Saxony are
all dead. (...snip...)
Quite unlikely scenario IMHO, but still valid indeed if Mayer's interpretation is the right one.
Charles Stewart
2003-07-18 19:38:19 UTC
Permalink
Post by Uwe Schollmeyer
Post by Guy Stair Sainty
wish to abandon historic agreements with other
branches of the House, or other royal houses,
Any such agreements appear to have been voided by law during the Saxon
monarchy, which restricted male-line succession to the royal Albertine
line: http://groups.google.com/groups?hl=en&lr=&ie=UTF-8&oe=UTF-8&selm=9pv5b6%24jdo%241%40bob.news.rcn.net
It all depends on the interpretation of the wording "eines Prinzen" in the constitution.
If I understand the matter correctly so far, we on ATR are curious
about Saxon monarchical rights in the abstract, but none of the
parties involved is expressing an interest in arguing this issue at
all. Those parties are the Margrave, his brother Prince Albrecht,
their nephew Alexander Prinz von Sachsen and their cousin Rudiger
Prinz von Sachsen. None of them would want Saxony's dynastic
representation dispersed among the Ernestine Wettins, still less to
the Hohenzollerns or remoter relatives.

The active dynastic dispute turns upon whether, under the 1997
agreement, Alexander will be recognized as representing the claim
rather than Rudiger, given that Alexander's mother's marriage was
deemed morganatic when contracted and Rudiger's father married
morganatically and without authorization.
Post by Uwe Schollmeyer
As I have pointed out
earlier in this thread, one could also think of a condominium in Saxony, like formerly Henneberg in the HRE. It
is only O.Mayer's interpretation of 1909 that stands against it.
But what stands in favor of it? If Saxony were an extant monarchy, how
would a "condominium" of foreign sovereigns have permanently exercised
the kingship? None of the eligibles would have been under any legal
obligation to yield their claim to co-rule to any other branch and
would have had the inducement of elevation to kingship to resist
renunciation. Mayer's interpretation that such arrangements were
obsolete in a post-Empire constitutional Europe, and specifically in
unitary Saxony where they were not ratified, sounds persuasive.

When one Ernestine duchy's line became extinct in 1826, the
co-claimants had agreed upon a re-allocation of mostly discontiguous
portions of their realms. But Saxony had no such plan in place. When
Luxembourg fell to the dethroned Duke of Nassau upon extinction of the
Netherlands' male-line, this was pursuant to the treaty of the
Congress of Vienna and ratified in the constitutions of both
countries.

From a modern point of view, what is the point of having three
co-claimants to headship of the juniormost Saxon branch, which is
itself extinct? It does not appear that any significant dynastic
fortune is at issue, nor property, nor expectation of re-enthronement
-- only the claim to represent the Albertine Wettins' distinct role in
history.
Post by Uwe Schollmeyer
(...snip...) The eldest of these sisters, Maria Josefa,
has an only daughter, born out-of-wedlock, childless and over 45.
Oh, I did not know that. Could you please give some genealogical details ?
According to Enache's "La Descendance de Maria-Therese"
Maria-Christina von Sachsen, born Munich 13 October 1956 to Princess
Maria-Josefa. The father has not been identified. More I don't know.
Post by Uwe Schollmeyer
(...snip...) The validity of the eventual claim of the Prince of Hohenzollern
cannot be denied, once the last six Albertine Wettins of Saxony are
all dead. (...snip...)
Quite unlikely scenario IMHO, but still valid indeed if Mayer's interpretation is the right one.
What is the alternative if Mayer is wrong and the Ernestine Wettins
are entitled to share the claim to the defunct Saxon kingdom? If the
Erbverbruderung Wettins must also be born in compliance with their own
branches' laws on Ebenburtigkeit, then I reckon only two are dynasts
and two are arguably dynasts: Duke Wilhelm Ernst of Saxe-Weimar
(b.1946) and Andreas, Prince of Coburg (b.1943). Plus, oddly enough,
HRH the Duke of Kent and HRH Prince Michael of Kent, on the
ATR-disputed assumption that the marriage of King George V of the UK
(who renounced his German titles, but not his Coburg succession
rights) to Furstin Mary von Teck was ebenburtig.

Since all four of these Wettins are married in defiance of their own
house laws, the potential condominium claimants under the
Erbverbruderung have no heirs to whom their Saxon claims can pass.
Again, therefore, it is not surprising that the Margrave of Meissen
has sought an alternative means of preserving the Albertine
representation.

Charles Stewart
Pierre Aronax
2003-07-18 19:53:16 UTC
Permalink
"Charles Stewart" <***@yahoo.com> a écrit dans le message de news:
***@posting.google.com...

<...>
Post by Charles Stewart
From a modern point of view, what is the point of having three
co-claimants to headship of the juniormost Saxon branch, which is
itself extinct?
From a modern point of view, what is the point to have any claimant at all
for a throne which exists no more and a country which is no more an
independent State?
Post by Charles Stewart
It does not appear that any significant dynastic
fortune is at issue, nor property, nor expectation of re-enthronement
-- only the claim to represent the Albertine Wettins' distinct role in
history.
<...>

That is why the most interesting would be to know who is the heir (or who
are the heirs) of that claim, not who is in the better position to defend it
on a practical ground.

Pierre
Charles Stewart
2003-07-19 05:41:21 UTC
Permalink
Post by Pierre Aronax
<...>
Post by Charles Stewart
From a modern point of view, what is the point of having three
co-claimants to headship of the juniormost Saxon branch, which is
itself extinct?
From a modern point of view, what is the point to have any claimant at all
for a throne which exists no more and a country which is no more an
independent State?
Perhaps the Albertine Wettins think that their history and legacy is
worth still being represented in the modern world -- most other
dethroned dynasties seem to think so, including some, like the Este
Dukes of Modena and the Dukes in Bavaria, that designate
representatives who are kinsmen but do not represent the legal
genealogical claim.

The evidence is, since there is a dispute within the family as to who
is to do that representation once the present dynasts are all dead,
that the Albertines do find see some point in having a claimant, and
that they are concerned that s/he be primarily identified with
Saxony's branch rather than with that of another European dynasty. You
must ask them why if, given your own interest in defunct monarchies
and their current representatives, you genuinely can't imagine a
reason.
Post by Pierre Aronax
Post by Charles Stewart
It does not appear that any significant dynastic
fortune is at issue, nor property, nor expectation of re-enthronement
-- only the claim to represent the Albertine Wettins' distinct role in
history.
<...>
That is why the most interesting would be to know who is the heir (or who
are the heirs) of that claim, not who is in the better position to defend it
on a practical ground.
Of most interest to you, but obviously not to members of the family in
question. So why don't you tell us who that heir should be according
to whatever rules you think are in force and whither that claim should
go in the generation following? Feel free to leave speculation about
the "practical" claim to those interested in it -- including the
dynasts of the royal House of Saxony.

Charles Stewart
Pierre Aronax
2003-07-25 03:17:30 UTC
Permalink
Post by Charles Stewart
Post by Pierre Aronax
<...>
Post by Charles Stewart
From a modern point of view, what is the point of having three
co-claimants to headship of the juniormost Saxon branch, which is
itself extinct?
From a modern point of view, what is the point to have any claimant at all
for a throne which exists no more and a country which is no more an
independent State?
Perhaps the Albertine Wettins think that their history and legacy is
worth still being represented in the modern world --
Good for them. But what is the link between this very abstract
"history and legacy" and the succession to the crown of Saxony. If
they are two different things, I am afraid that the first one is
nothing more than an ectoplasm.
Post by Charles Stewart
most other
dethroned dynasties seem to think so, including some, like the Este
Dukes of Modena and the Dukes in Bavaria, that designate
representatives who are kinsmen but do not represent the legal
genealogical claim.
And do not pretend to represent something more than what they are. The
Este and the Dukes in Bavaria only wanted that their names will not be
lost. Are we discussing here only the fact that Alexander Afif and his
descendants will use the name "Prinz von Sachsen". This fact is
undoubtful, but this has nothing to do with the succession to the
throne. And if you are speaking neither of a simple name, nor of a
royal succession, I really wonder about what you are speaking.
Post by Charles Stewart
The evidence is, since there is a dispute within the family as to who
is to do that representation
Representation of what exactly?
Post by Charles Stewart
once the present dynasts are all dead,
that the Albertines do find see some point in having a claimant,
So now it is a claimant. But is not a claimant supposed to "represent
[a] legal genealogical claim"? And if not, why is he call a claimant?
Post by Charles Stewart
and
that they are concerned that s/he be primarily identified with
Saxony's branch rather than with that of another European dynasty.
I don't follow you exactly here. Alexander Afif represants no more a
"Saxony's branch" than his Hohenzollern cousins.
Post by Charles Stewart
You
must ask them why if, given your own interest in defunct monarchies
and their current representatives, you genuinely can't imagine a
reason.
Post by Pierre Aronax
Post by Charles Stewart
It does not appear that any significant dynastic
fortune is at issue, nor property, nor expectation of re-enthronement
-- only the claim to represent the Albertine Wettins' distinct role in
history.
<...>
That is why the most interesting would be to know who is the heir (or who
are the heirs) of that claim, not who is in the better position to defend it
on a practical ground.
Of most interest to you, but obviously not to members of the family in
question.
Are we supposed to always consider that the members of a former
reigning family are the most competent to say who will be in right to
represent their heritage? You seem to consider that as a strictly
private affair, as if it was the succession of a family country house.
Your position seems to be "that's their crown, so they can do what
they want with it".
Post by Charles Stewart
So why don't you tell us who that heir should be according
to whatever rules you think are in force
I thought it would be more interesting to know who it would be
according to the only rules which import, that is the rules who were
in force before the end of the monarchy. Certainly not at least
according to new rules created I don't see on what legal basis.
Post by Charles Stewart
and whither that claim should
go in the generation following?
I will probably not discuss alone since "we on ATR are curious about
Saxon monarchical rights in the abstract".
Post by Charles Stewart
Feel free to leave speculation about
the "practical" claim to those interested in it
I said that the most interesting would be to know who is the heir of
the claim, not who is in the better position to defend it on a
practical ground. But the one who would be chosen according to the ad
hoc rules you seem to agree with will not for that have a more
"practical" claim: in fact, being neither the claim of a real heritage
(since this heritage can only be ruled by today German law), neither
of the legal genealogical claim, as you admitted above, his "claim"
seems far less "practical" than any other and I don't even see what he
will claim exactly. The better would certainly be for the dynasts who
agree with the arrangement to create a foundation, so he will at least
be able to claim its chairmanship. But this would have little to do
with history.
Post by Charles Stewart
-- including the
dynasts of the royal House of Saxony.
Supposing they are all of your opinion of course.

Pierre
Charles Stewart
2003-07-26 01:34:06 UTC
Permalink
Post by Pierre Aronax
Post by Charles Stewart
Perhaps the Albertine Wettins think that their history and legacy is
worth still being represented in the modern world --
Good for them. But what is the link between this very abstract
"history and legacy" and the succession to the crown of Saxony. If
they are two different things, I am afraid that the first one is
nothing more than an ectoplasm.
You are free to so consider it. Those interested in how the Margrave
and other dynasts resolve the matter are free to consider it more than
that...

Or not, since most of the succession disputes taken up here about
defunct thrones have as much substance in the real world as ectoplasm.
Post by Pierre Aronax
Post by Charles Stewart
most other
dethroned dynasties seem to think so, including some, like the Este
Dukes of Modena and the Dukes in Bavaria, that designate
representatives who are kinsmen but do not represent the legal
genealogical claim.
And do not pretend to represent something more than what they are. The
Este and the Dukes in Bavaria only wanted that their names will not be
If the name were all that was deemed to have been passed on, Max would
never have become known in royal or genealogical works as "the Duke in
Bavaria" rather than Herr Max Herzoginbayern. You may pretend that the
legal surname is the only legacy if you like, but that's nothing more
than a debating device to obscure the manifest fact that by the desire
of the last genealogical Duke in Bavaria, the adoption of Prince Max
and, above all (IMHO) the lack of objection of anyone with a dynastic
interest in the matter, the transfer of legacy is widely accepted. But
for the childlessness of the Duke of Bavaria and the daughteredness of
the Duke in Bavaria, the transfer shows every sign of perpetuating
itself as genealogically valid in most reputable dynastic sources in
print.
Post by Pierre Aronax
Are we discussing here only the fact that Alexander Afif and his
descendants will use the name "Prinz von Sachsen". This fact is
undoubtful, but this has nothing to do with the succession to the
throne. And if you are speaking neither of a simple name, nor of a
royal succession, I really wonder about what you are speaking.
Then re-read what I've already written instead of trying to induce me
to use words you are eager to rebut but which don't reflect my views
in the matter.
Post by Pierre Aronax
Post by Charles Stewart
The evidence is, since there is a dispute within the family as to who
is to do that representation
Representation of what exactly?
Re-read what I've already written instead of trying to induce me to
use words you are eager to rebut but which don't reflect my views in
the matter.
Post by Pierre Aronax
Post by Charles Stewart
once the present dynasts are all dead,
that the Albertines do find see some point in having a claimant,
So now it is a claimant. But is not a claimant supposed to "represent
[a] legal genealogical claim"? And if not, why is he call a claimant?
Ask the Carlist partisans of the late Don Javier de Borbon Parma and
the Spanish media who, from 1952, habitually treat him as a claimant
to the throne of Spain and as among those vying princes to be selected
by El Caudillo to mount that throne. Given that they had an organized
political party with seats in the Cortes through most of the 1970s,
their use of "claimant" may well stand up against that of more
"ectoplasmic" legitimist claimants whose legal rights have been just
as disputed but proved much less viable in the 20th century.
Post by Pierre Aronax
Post by Charles Stewart
they are concerned that s/he be primarily identified with
Saxony's branch rather than with that of another European dynasty.
I don't follow you exactly here. Alexander Afif represants no more a
"Saxony's branch" than his Hohenzollern cousins.
To you. Apparently the Margrave and, at least at some time, all male
dynasts of the royal house of Saxony, disagreed with you. Some will
care more about their view of it, and some (well, one) will care more
about yours.
Post by Pierre Aronax
Post by Charles Stewart
Post by Pierre Aronax
That is why the most interesting would be to know who is the heir (or who
are the heirs) of that claim, not who is in the better position to defend it
on a practical ground.
Of most interest to you, but obviously not to members of the family in
question.
Are we supposed to always consider that the members of a former
reigning family are the most competent to say who will be in right to
represent their heritage?
Again you've tried to change the issue, which is who considers what
claim "most interesting" in this thread, not who is "most competent"
to decide claims. To get us back on track, I repeat that I consider
there to be two lines of inquiry here, in one of which -- historical
law -- you express interest, and in the other of which -- the current
dynasty's deliberations -- you seek to denigrate interest.
Post by Pierre Aronax
You seem to consider that as a strictly
private affair, as if it was the succession of a family country house.
Your position seems to be "that's their crown, so they can do what
they want with it".
I accept no responsibility for what my position "seems" to be to you
since I've stated it. Re-read what I've already written instead of
trying to induce me to use words you are eager to rebut but which
don't reflect my views in the matter.

It is you who avoid stating the name of the person you believe becomes
rightful heir upon extinction of the males of the house of Saxony.
Post by Pierre Aronax
Post by Charles Stewart
So why don't you tell us who that heir should be according
to whatever rules you think are in force
I thought it would be more interesting to know who it would be
according to the only rules which import, that is the rules who were
in force before the end of the monarchy. Certainly not at least
according to new rules created I don't see on what legal basis.
It is you who avoid stating the name of the person you believe becomes
rightful heir upon extinction of the males of the house of Saxony.
Post by Pierre Aronax
Post by Charles Stewart
and whither that claim should
go in the generation following?
I will probably not discuss alone since "we on ATR are curious about
Saxon monarchical rights in the abstract".
It is you who avoid stating the name of the person you believe becomes
rightful heir upon extinction of the males of the house of Saxony.
Post by Pierre Aronax
Post by Charles Stewart
Feel free to leave speculation about
the "practical" claim to those interested in it
I said that the most interesting would be to know who is the heir of
the claim, not who is in the better position to defend it on a
practical ground. But the one who would be chosen according to the ad
hoc rules you seem to agree with
It is beginning to be hard to believe this is not deliberate
misconstrual. Re-read what I've already written instead of trying to
induce me to use words you are eager to rebut but which don't reflect
my views in the matter.
Post by Pierre Aronax
will not for that have a more
"practical" claim: in fact, being neither the claim of a real heritage
(since this heritage can only be ruled by today German law), neither
of the legal genealogical claim, as you admitted above, his "claim"
seems far less "practical" than any other
To you. Others have taken a different point of view, including the
Margrave of Meissen.
Post by Pierre Aronax
Post by Charles Stewart
-- including the
dynasts of the royal House of Saxony.
Supposing they are all of your opinion of course.
They are not. The only opinion they appear to share is that the
dynasty's representation should fall to someone descended from the
last king that reigned over Saxony rather than someone primarily
identified with another dynasty.

Charles Stewart
Pierre Aronax
2003-07-19 09:11:14 UTC
Permalink
Post by Charles Stewart
What is the alternative if Mayer is wrong and the Ernestine Wettins
are entitled to share the claim to the defunct Saxon kingdom? If the
Erbverbruderung Wettins must also be born in compliance with their own
branches' laws on Ebenburtigkeit, then I reckon only two are dynasts
and two are arguably dynasts: Duke Wilhelm Ernst of Saxe-Weimar
(b.1946) and Andreas, Prince of Coburg (b.1943). Plus, oddly enough,
HRH the Duke of Kent and HRH Prince Michael of Kent, on the
ATR-disputed assumption that the marriage of King George V of the UK
(who renounced his German titles, but not his Coburg succession
rights) to Furstin Mary von Teck was ebenburtig.
Wasn't she a Prinzessin rather than a Fürstin?
Yes.
In any event, were his
sons called 'Duke of Saxony' or 'Prince of Saxe-Coburg and Gotha'
before 1917?
If they were, they were probably both. And at least they used the Saxony
arms.

Pierre
Louis Epstein
2003-07-19 14:50:44 UTC
Permalink
Charles Stewart <***@yahoo.com> wrote:
: Uwe Schollmeyer <***@wirtschaft.uni-giessen.de> wrote in message news:<***@wirtschaft.uni-giessen.de>...
:> Charles Stewart schrieb:
:>
:> > Guy Stair Sainty <***@sainty.org> wrote in message news:<***@drn.newsguy.com>...
:> > > wish to abandon historic agreements with other
:> > > branches of the House, or other royal houses,
:> >
:> > Any such agreements appear to have been voided by law during the Saxon
:> > monarchy, which restricted male-line succession to the royal Albertine
:> > line: http://groups.google.com/groups?hl=en&lr=&ie=UTF-8&oe=UTF-8&selm=9pv5b6%24jdo%241%40bob.news.rcn.net
:>
:> It all depends on the interpretation of the wording "eines Prinzen" in the constitution.

: If I understand the matter correctly so far, we on ATR are curious
: about Saxon monarchical rights in the abstract, but none of the
: parties involved is expressing an interest in arguing this issue at
: all. Those parties are the Margrave, his brother Prince Albrecht,
: their nephew Alexander Prinz von Sachsen and their cousin Rudiger
: Prinz von Sachsen. None of them would want Saxony's dynastic
: representation dispersed among the Ernestine Wettins, still less to
: the Hohenzollerns or remoter relatives.

: The active dynastic dispute turns upon whether, under the 1997
: agreement, Alexander will be recognized as representing the claim
: rather than Rudiger, given that Alexander's mother's marriage was
: deemed morganatic when contracted and Rudiger's father married
: morganatically and without authorization.

:> As I have pointed out earlier in this thread, one could also think of
:> a condominium in Saxony, like formerly Henneberg in the HRE. It
:> is only O.Mayer's interpretation of 1909 that stands against it.

: But what stands in favor of it? If Saxony were an extant monarchy, how
: would a "condominium" of foreign sovereigns have permanently exercised
: the kingship? None of the eligibles would have been under any legal
: obligation to yield their claim to co-rule to any other branch and
: would have had the inducement of elevation to kingship to resist
: renunciation. Mayer's interpretation that such arrangements were
: obsolete in a post-Empire constitutional Europe, and specifically in
: unitary Saxony where they were not ratified, sounds persuasive.

: When one Ernestine duchy's line became extinct in 1826, the
: co-claimants had agreed upon a re-allocation of mostly discontiguous
: portions of their realms. But Saxony had no such plan in place. When
: Luxembourg fell to the dethroned Duke of Nassau upon extinction of the
: Netherlands' male-line, this was pursuant to the treaty of the
: Congress of Vienna and ratified in the constitutions of both
: countries.

: From a modern point of view, what is the point of having three
: co-claimants to headship of the juniormost Saxon branch, which is
: itself extinct? It does not appear that any significant dynastic
: fortune is at issue, nor property, nor expectation of re-enthronement
: -- only the claim to represent the Albertine Wettins' distinct role in
: history.

:> > (...snip...) The eldest of these sisters, Maria Josefa,
:> > has an only daughter, born out-of-wedlock, childless and over 45.
:>
:> Oh, I did not know that. Could you please give some genealogical details ?

: According to Enache's "La Descendance de Maria-Therese"
: Maria-Christina von Sachsen, born Munich 13 October 1956 to Princess
: Maria-Josefa. The father has not been identified. More I don't know.

:> > (...snip...) The validity of the eventual claim of the Prince of
:> > Hohenzollern cannot be denied, once the last six Albertine Wettins
:> > of Saxony are all dead. (...snip...)
:>
:> Quite unlikely scenario IMHO, but still valid indeed if Mayer's
:> interpretation is the right one.

: What is the alternative if Mayer is wrong and the Ernestine Wettins
: are entitled to share the claim to the defunct Saxon kingdom? If the
: Erbverbruderung Wettins must also be born in compliance with their own
: branches' laws on Ebenburtigkeit, then I reckon only two are dynasts
: and two are arguably dynasts: Duke Wilhelm Ernst of Saxe-Weimar
: (b.1946) and Andreas, Prince of Coburg (b.1943). Plus, oddly enough,
: HRH the Duke of Kent and HRH Prince Michael of Kent, on the
: ATR-disputed assumption that the marriage of King George V of the UK
: (who renounced his German titles, but not his Coburg succession
: rights) to Furstin Mary von Teck was ebenburtig.

: Since all four of these Wettins are married in defiance of their own
: house laws, the potential condominium claimants under the
: Erbverbruderung have no heirs to whom their Saxon claims can pass.
: Again, therefore, it is not surprising that the Margrave of Meissen
: has sought an alternative means of preserving the Albertine
: representation.

As I understand it the Albertine line (which some may view as having
usurped the electoral dignity from the Ernestines) have a more suicidal
commitment to ebenburtigkeit than the Ernestines...there is no provision
for waiving requirements,though the present Head of House is trying to
fudge the issue.Ernestine branches,however,allow such waivers.

If the Albertine branch becomes extinct in the male line by its own rules,
that IMO leaves its "legacy" to be treated as something to be handled by
the Ernestine branches under Ernestine rules.

(I would,frankly,be a lot more concerned with preserving the Albertine
line as separate had Albert been older than Ernest!)

-=-=-
The World Trade Center towers MUST rise again,
at least as tall as before...or terror has triumphed.
jlk7e
2003-07-20 03:54:11 UTC
Permalink
Wasn't she a Prinzessin rather than a Fürstin?
No. After the Congress of Vienna, morganatic wives and descendants
were rarely allowed to use the style of Prinz/essin (princes created
by Hessian sovereigns were an exception, e.g. Hanau, Battenberg).
Instead, they were made Furst/in, as were other non-reigning,
non-mediatized families elevated to princely rank by German sovereigns
(e.g. Bismarck, Pless, Polignac, (Palffy)Thiano). The Tecks were Furst
and Herzog, but never entitled to Prinz/essin. In English and French
no difference could be discerned, but Germans would instantly notice
the distinction.
Hmm...Erlangen calls her a "Prinzessin", and her brother Francis
"Prinz". On the other hand, they describe the first Duke of Teck's
sisters as "Fürstin".
http://faui8l.informatik.uni-erlangen.de/cgi-bin/stoyan/l1/LANG=engl/INDEX=I1012,
and related
Being Germans, I imagine they know what they're talking about.
Perhaps the original title granted to the morganatic children of
Prince Alexander was "Fürst/in von Teck", but when the son was granted
the title of "Herzog", his children became entitled to
Prinz/Prinzessin.
Charles Stewart
2003-07-21 21:39:28 UTC
Permalink
With all respect, I find that our approaches to the issue are quite different.
I do not care much about some well working representation of former royal houses in the post-monarchical times of today (only applying
to Germany of course). My approach is more based on applying the old rules and the historical precedences to the present families.
Although I think that leads up a blind alley, these approaches aren't
necessarily mutually exclusive. One focuses on which descendants of
the Kings of Saxony will represent the dynasty's historical legacy
with the approbation of the last legal dynasts on the assumption that
before the 21st century is over no one is likely to qualify under the
1918 laws. The other seeks to find who would be rightful heir if the
kingdom of Saxony existed today under those laws.

You will find on ATR people who are very interested in the legalities
surrounding the claim of the Jacobite heir, while fully acknowledging
Elizabeth II as current heir of the illegally diverted but popularly
accepted British monarchy. ATR recently considered that a common
misinterpretation of a 1776 pragmatic sanction resulted in the
diversion of Spain's crown to Juan Carlos de Borbon, while the legal
right under its 1876 constitution probably belongs to the French
legitimist claimant known as Luis Alfonso de Borbon. Yet Spanish
monarchists can surely acknowledge that one case represents current
reality and the other legal history.

In this case, a very small number of people appear to be interested in
who emerges as representative of the royal House of Saxony, but the
dynasts of that soon-to-be-extinct house seem to care, not
surprisingly, more than anyone else. Their quarrel does not appear to
consider the possibility that someone not descended from Saxony's last
reigning king should inherit that right of representation, regardless
of what legal claim is put forth in his/her favor.

Most of us following the matter are, I would venture, interested in
both the outcome of the quarrel among the surviving dynasts and in the
legality of any other claim. But some are more interested in one than
the other. Unless strict interpretation of law produces a third,
active claimant (i.e. we know who holds the "legal" claims to any
number of absorbed thrones that are ignored because neither their
heirs nor restorationists advocate for them) these two tracks in Saxon
royal lore need not go into armed combat, though they are unlikely to
agree.
This leads me to read very carefully the §7 of the constitution of Saxony. I offered a different interpretation, opposed to Mayer's,
who himself points out the example of Henneberg between 1583 and 1660 in his footnote 24 on p.58.
This could also apply to Saxony IMHO. Of course, there is the difficulty of co-rulers in a unitary Saxony. However, I would presume
that in the unlikely event of a re-enthronement of the Wettins, the three co-claimants of Saxony (or two, see below) would have a
reallocation of their portions, just like 1826 with the only difference being the inclusion of S.-Weimar-Eisenach.
If one sticks to the 1918 laws, I see no claimant forthcoming that
would be any more legal than the de-morganatized heir the dynasty is
debating. The most important obstacle is Mayers' fundamental objection
to the Erbverbrüderung: Saxony, as a unitary, constitutional and
sovereign state after the abolition of the Empire, did not explicitly
validate the old Erbverbrüderung, could not be required to honor it
and the compact was unenforceable as written.

Neither Saxony's territory nor its royal dignity could be divided up
among co-heirs. There was no rule of primogeniture applicable to the
heirs under the Erbverbrüderung. So the present heirs of the Grand
Duke of Saxe-Weimar and the Dukes of Altenburg, Meiningen and Coburg
have equal claim to a royal title that could not constitutionally be
shared. Nor was there a provision for choosing among equal claimants,
nor for holding the title in abeyance until only one of these heirs
survives.

The condominium option makes sense for joint exercise of a regency
over Saxony, but not for allocating its crown. When the various
Erbverbrüderung compacts were adopted, there was no primogeniture
applicable, but there was an Emperor reigning above any co-heirs to
judge which would receive the Electorship. No such mechanisms existed
for royal Saxony vis-à-vis the Ernestine duchies, Hesse and
Brandenburg, all of whom have Erbverbruderung claims.

OTOH, another interpretation of Saxony's constitution suggests that it
anticipated and sought to stave off multiple claims by admitting none
of them unless only one Erbverbrüderung heir survived. But you have
pointed out that this interpretation turns upon one word, which has
another, nearly opposite meaning in this context.

Even if the "one Erbverbrüderung heir" interpretation is applicable,
it presents the same problem as the other situation: one indivisible
crown, multiple claimants. That situation does not exist currently and
brings us back to the rights of female claimants upon extinction of
males with enforceable claims -- and all three of the Margrave's
sisters are living.

The bottom line here is that there is no one legally empowered to
decide which interpretation and which choices are to be made – and the
head of house will not choose because he (and the other dynasts of his
branch) reject this paradigm altogether. So if you say that the
Erbverbrüderung was enforceable under Saxony's sovereign constitution,
but the Margrave and all other members of his house say it was not –
who decides? If you say that the Erbverbrüderung is implementable by
establishment of a condominium, but the Margrave et al say that
Saxony's crown was constitutionally unitary – who decides? If you say
that §7 of Saxony's constitution refers to "a prince", but the
members of the Royal House of Saxony agree that it means "one prince"
– who decides?
Post by Charles Stewart
When
Luxembourg fell to the dethroned Duke of Nassau upon extinction of the
Netherlands' male-line, this was pursuant to the treaty of the
Congress of Vienna and ratified in the constitutions of both
countries.
Wasn't it actually a intra-Nassau treaty of 1783 ? IIRC it was called Erbverein (which is close to Erbverbrüderung).
Yes, but this pre-dated the existence of the Netherlands and
Luxembourg as sovereign entities. The Treaty of Vienna exercised
supra-national authority to transfer the Erbverein's dynastic
provisions to the Dutch and Luxembourgeois branch's territories and to
the other Nassau branches. Pursuant to that treaty, those monarchies
then enshrined the provisions in their constitutions. It is this that
made them enforceable when the Orange-Nassau branch became extinct
more than the compact signed under the Holy Roman Empire. Thus, the
Nassau example is a poor precedent for Saxony.
Post by Charles Stewart
According to Enache's "La Descendance de Maria-Therese"
Maria-Christina von Sachsen, born Munich 13 October 1956 to Princess
Maria-Josefa. The father has not been identified. More I don't know.
http://genealogy.euweb.cz/wettin/wettin12.html states that this Maria-Christina is the illegitimate daughter of Dedo. Which source is
the correct one ?
I have no idea.

Charles Stewart
Pierre Aronax
2003-07-24 17:19:14 UTC
Permalink
Post by Charles Stewart
With all respect, I find that our approaches to the issue are quite different.
I do not care much about some well working representation of former
royal houses in the post-monarchical times of today (only applying
Post by Charles Stewart
to Germany of course). My approach is more based on applying the old
rules and the historical precedences to the present families.
Post by Charles Stewart
Although I think that leads up a blind alley, these approaches aren't
necessarily mutually exclusive. One focuses on which descendants of
the Kings of Saxony will represent the dynasty's historical legacy
What is exactly this "historical legacy" if it is neither made of real
properties nor of legal claim?
Post by Charles Stewart
with the approbation of the last legal dynasts on the assumption that
before the 21st century is over no one is likely to qualify under the
1918 laws. The other seeks to find who would be rightful heir if the
kingdom of Saxony existed today under those laws.
You will find on ATR people who are very interested in the legalities
surrounding the claim of the Jacobite heir, while fully acknowledging
Elizabeth II as current heir of the illegally diverted but popularly
accepted British monarchy.
The comparison is of course not relevant: Elizabeth II is indeed the British
head of State, that is a substantive fact. What will be Alexander Afif?
Post by Charles Stewart
ATR recently considered that a common
misinterpretation of a 1776 pragmatic sanction resulted in the
diversion of Spain's crown to Juan Carlos de Borbon, while the legal
right under its 1876 constitution probably belongs to the French
legitimist claimant known as Luis Alfonso de Borbon.
That is not a "common misinterpretation" of the pragmatic sanction which gav
e the crown to King John Charles, that is the present Spanish constitution.
In you analogy, the pragmatic sanction, which never actually ruled the
Spanish succession, is put on the same side with the actual Constitution of
the Kingdom of Saxony, and the actual Constitution of the Kingdom of Spain
is on the side of a private family agreement of some Saxon dynasts, without
legal value!
Post by Charles Stewart
Yet Spanish
monarchists can surely acknowledge that one case represents current
reality and the other legal history.
In this case, a very small number of people appear to be interested in
who emerges as representative of the royal House of Saxony, but the
dynasts of that soon-to-be-extinct house seem to care, not
surprisingly, more than anyone else. Their quarrel does not appear to
consider the possibility that someone not descended from Saxony's last
reigning king should inherit that right of representation, regardless
of what legal claim is put forth in his/her favor.
<...>

Why would be their opinion more relevant than the opinion of anyone else?

Pierre
Pierre Aronax
2003-07-25 10:01:15 UTC
Permalink
Post by Pierre Aronax
Post by Charles Stewart
these approaches aren't
necessarily mutually exclusive. One focuses on which descendants of
the Kings of Saxony will represent the dynasty's historical legacy
What is exactly this "historical legacy" if it is neither made of real
properties nor of legal claim?
What historical legacy is represented by the Austria-Este family?
Only a name and a remembrance: they do not claim to be the heirs of the
Dukedom of Modena.
Or
the Dukes in Bavaria?
Only a name and a remembrance: they do not claim to be the heirs of the
Dukedom of Modena.
Or the Carlist monarchists?
I am affraid they have a great lake of legal claimant now.
Or the claimants to
Anhalt, Bavaria, Mecklenburg, Portugal, Yugoslavia and other
monarchies whose claim would not be valid under a strict
interpretation of old law?
Mecklenburg are now dynastically extinct and their rights have gone to the
Prussian claimant. The succession of Bavaria was supposed to be conform to
the old law (I know the law was twisted, but by a legal artifice). What is
your point about Portugal and Yugoslavia? Place of birth of the claimant?
What is the exact historical legacy of
anything if the legal claim to it is invalid because obsolete in law?
Who declares that the law is obsolete if the law has no provision to do so?
You?
Those who value such a legacy will make known their relationship to
it, invite others to acknowledge it, and those who conclude that they
value it despite whatever flaws exist in its purity will respond as
they think appropriate.
Post by Pierre Aronax
Post by Charles Stewart
with the approbation of the last legal dynasts on the assumption that
before the 21st century is over no one is likely to qualify under the
1918 laws. The other seeks to find who would be rightful heir if the
kingdom of Saxony existed today under those laws.
You will find on ATR people who are very interested in the legalities
surrounding the claim of the Jacobite heir, while fully acknowledging
Elizabeth II as current heir of the illegally diverted but popularly
accepted British monarchy.
The comparison is of course not relevant: Elizabeth II is indeed the British
head of State, that is a substantive fact. What will be Alexander Afif?
You have previously argued that the flat refusal of some to
acknowledge the "substantive fact" that Elizabeth Windsor reigns as
Queen over a realm including England and Scotland is no excuse to
disrespect their point of view on ATR.
Indeed. That does not mean that I agree with their point of view: I find
certainly a logic in it, that's all, when I find no logic in the claim of
Michael Lafosse, and little more in the eventual claim of the Afifs.
Yet they treat the "illegal"
claim to a throne by a Windsor the way you intend to treat that of an
Afif.
Not at all. The Jacobit claim is in contradiction with today's reality of
the British monarchy, but one can consider that it is in conformity with a
previously existing rule of succession (the question is: was the change of
rule legal? The Jacobits claim it was not). But the claim of an Afif does
not represent the application of rules which have been changed by force in
an existing monarchy, so that the legitimacy of this change can perhaps be
discussed: they will represent nothing more than innovations made in an
existing rule of succession by people who have no authority to do so
according to the tradition they pretend to represent.
I leave it to Maria Emmanuel Margrave of Meissen to charge his kinsman
to maintain his line's tradition.
Even if, according to the tradition he is heir, he has no authority to do
so? Can he choose anybody in your theory, even somebody not related by
blood? From where comes this new power?
Post by Pierre Aronax
Post by Charles Stewart
ATR recently considered that a common
misinterpretation of a 1776 pragmatic sanction resulted in the
diversion of Spain's crown to Juan Carlos de Borbon, while the legal
right under its 1876 constitution probably belongs to the French
legitimist claimant known as Luis Alfonso de Borbon.
That is not a "common misinterpretation" of the pragmatic sanction which gav
e the crown to King John Charles, that is the present Spanish constitution.
No, to some monarchists Juan Carlos rightfully became King of Spain in
virtue of being "legitimate heir of the historic dynasty" and they
regard the Pragmatic as having been applied to exclude other senior
heirs of that dynasty. It was to them I referred.
So, what are you opposing if you are not opposing what is and what must have
been? Two different must have been?
And I did not say that anybody "gave" the crown to Juan Carlos, which
implies a deliberate act my sentence did not suggest. I said that an
interpretation of the prammatica "resulted in the diversion of Spain's
crown to Juan Carlos."
So, what do you mean by "diversion" if not the fact that King John Charles
received the crown?
Post by Pierre Aronax
In you analogy, the pragmatic sanction, which never actually ruled the
Spanish succession,
In your opinion. Others disagree, and it was to them I referred.
So, if you think otherwise, give us a single example where the succession
was actualy ruled according to the pragmatic sanction.
Post by Pierre Aronax
is put on the same side with the actual Constitution of
the Kingdom of Saxony,
The "actual" constitution of the kingdom of Saxony, like that of the
ancien regime of France, is obsolete.
Obsolete in what sense? In the sense that Saxony is no more a kingdom? In
that sense, there is no heir at all, neither Afif nor anybody else.
Otherwise, if you look for a claimant for the kingdom of Saxony, but want to
find it according to other rules than the constitution of the kingdom of
Saxony, I really wonder what are this rules. Or is the claimant simply the
one who is chosen by the previous claimant? Strange conception of historical
claim!
Whereas it is debated whether
the 1776 prammatica of Spain is still in force.
In force for what? For what is of its prescriptions on titles of nobility,
transmission of names etc. it is obvious that is is no more in force. For
what is of the royal succession, it is ruled only by the constitution, which
makes no mention of the pragmatica.
Post by Pierre Aronax
and the actual Constitution of the Kingdom of Spain
is on the side of a private family agreement of some Saxon dynasts, without
legal value!
To Carlist legitimists, the 1876 and 1978 constitutions of Spain were
without legal value;
Then the carlists can perhaps consider Louis-Alphonse as their claimant, but
I don't think there are many carlists of that kind today.
to Jacobite legitimists that of 1688 was without
value; to French legitimists, that of 1830 was without legal value;
Indeed. We agree at least on that (except of course that there is nothing
like a 1830 "Constitution").
and to you as a continental European, a constitution is "something
like a Kleenex, useful, but disposable. When we are tired of a
Constitution, we make an other one an that's all..."
As rather as a French republican. As a French royalist I would have other
feelings, but not about a "Constitution".
Opinions about
the current status of dead monarchical constitutions are on-topic to
consider here, and we frequently speak of them as if in the present
tense. Welcome to ATR!
So, what is your point? That the margrave can change the constitution by his
own volition?
Post by Pierre Aronax
Post by Charles Stewart
the
dynasts of that soon-to-be-extinct house seem to care, not
surprisingly, more than anyone else. Their quarrel does not appear to
consider the possibility that someone not descended from Saxony's last
reigning king should inherit that right of representation, regardless
of what legal claim is put forth in his/her favor.
<...>
Why would be their opinion more relevant than the opinion of anyone else?
Why would your opinion about their dynasty be more relevant than
theirs?
I don't say mine is more relevant: I say it is no less relevant. I can no
more change the rules than they can.

Pierre
jlk7e
2003-07-25 16:59:57 UTC
Permalink
Post by Pierre Aronax
Or
the Dukes in Bavaria?
Only a name and a remembrance: they do not claim to be the heirs of the
Dukedom of Modena.
I should hope not...
Post by Pierre Aronax
Or the claimants to
Anhalt, Bavaria, Mecklenburg, Portugal, Yugoslavia and other
monarchies whose claim would not be valid under a strict
interpretation of old law?
Mecklenburg are now dynastically extinct and their rights have gone to the
Prussian claimant. The succession of Bavaria was supposed to be conform to
the old law (I know the law was twisted, but by a legal artifice). What is
your point about Portugal and Yugoslavia? Place of birth of the claimant?
I believe the Miguelists have no legal claim to the throne of Portugal
under the last monarchical constitution of that country. The
situation there seems, in fact, rather analogous to the Saxon
situation.
Post by Pierre Aronax
And I did not say that anybody "gave" the crown to Juan Carlos, which
implies a deliberate act my sentence did not suggest. I said that an
interpretation of the prammatica "resulted in the diversion of Spain's
crown to Juan Carlos."
So, what do you mean by "diversion" if not the fact that King John Charles
received the crown?
Well, the Conde de Barcelona was considered to be the heir after 1941
by application of the prammatica, despite the fact that his older
brother was still alive. So clearly, the important fact which
resulted in the "diversion of the crown to Juan Carlos" occurred long
before he received the crown.
Post by Pierre Aronax
Post by Pierre Aronax
In you analogy, the pragmatic sanction, which never actually ruled the
Spanish succession,
In your opinion. Others disagree, and it was to them I referred.
So, if you think otherwise, give us a single example where the succession
was actualy ruled according to the pragmatic sanction.
How many opportunities did it have to be so ruled? That's like saying
that the provision for papists and those married to them to be
excluded from the British throne is invalid because it's never been
applied.
Pierre Aronax
2003-07-25 17:52:54 UTC
Permalink
<...>
Post by jlk7e
I believe the Miguelists have no legal claim to the throne of Portugal
under the last monarchical constitution of that country. The
situation there seems, in fact, rather analogous to the Saxon
situation.
They have rights under the previous state of fact existing before the : they
were, before the reconciliation between the two monarchical branch, in a
"legitimist" position. Alexander Afif is not in such position.
Post by jlk7e
Post by Pierre Aronax
And I did not say that anybody "gave" the crown to Juan Carlos, which
implies a deliberate act my sentence did not suggest. I said that an
interpretation of the prammatica "resulted in the diversion of Spain's
crown to Juan Carlos."
So, what do you mean by "diversion" if not the fact that King John Charles
received the crown?
Well, the Conde de Barcelona was considered to be the heir after 1941
by application of the prammatica, despite the fact that his older
brother was still alive. So clearly, the important fact which
resulted in the "diversion of the crown to Juan Carlos" occurred long
before he received the crown.
Indeed, but the fact is that the Count of Barcelona never became king, and
his son was heir of the crown with the title of "prince of Spain" long
before his death, and only by the grace of the Frankish settlement of the
succession. So neither the pragmatica, neither a Spanish constitution never
excluded anybody from the succession. It always happened that many people
thought it would have been so (like other people today think that the
margrave of Misnia can chose Afif as the heir of the Saxon crown), probably
also because it was useful in the particular circumstances, and that Franco
chose as his heir the man who was considered by this people as the heir of
their claimant. But, in practice, the pragmatica or the previous rules of
succession play no actual role in that: they were only supposed to have.
Post by jlk7e
Post by Pierre Aronax
Post by Pierre Aronax
In you analogy, the pragmatic sanction, which never actually ruled the
Spanish succession,
In your opinion. Others disagree, and it was to them I referred.
So, if you think otherwise, give us a single example where the succession
was actualy ruled according to the pragmatic sanction.
How many opportunities did it have to be so ruled? That's like saying
that the provision for papists and those married to them to be
excluded from the British throne is invalid because it's never been
applied.
No, because the text you mentioned is undoubtfully a constitutional text,
when the constitutional nature of the Pragmatica is precisely what is in
question, and what would have badly needed to be tested, but was not. As
François Velde has shown, the evidences tend to prove that the Pragmatica
was not by itself constitutionally binding for what is of the succession.
But it is true that, even if the provision against papists is undoubtfully
part of the rules of succession in Britain, it has never been tested how it
will apply, and our discussions here have demonstrated that it opens a lot
of questions.


Pierre
jlk7e
2003-07-25 22:41:04 UTC
Permalink
Post by Pierre Aronax
<...>
Post by jlk7e
I believe the Miguelists have no legal claim to the throne of Portugal
under the last monarchical constitution of that country. The
situation there seems, in fact, rather analogous to the Saxon
situation.
They have rights under the previous state of fact existing before the : they
were, before the reconciliation between the two monarchical branch, in a
"legitimist" position. Alexander Afif is not in such position.
Post by jlk7e
Post by Pierre Aronax
And I did not say that anybody "gave" the crown to Juan Carlos, which
implies a deliberate act my sentence did not suggest. I said that an
interpretation of the prammatica "resulted in the diversion of Spain's
crown to Juan Carlos."
So, what do you mean by "diversion" if not the fact that King John
Charles
Post by jlk7e
Post by Pierre Aronax
received the crown?
Well, the Conde de Barcelona was considered to be the heir after 1941
by application of the prammatica, despite the fact that his older
brother was still alive. So clearly, the important fact which
resulted in the "diversion of the crown to Juan Carlos" occurred long
before he received the crown.
Indeed, but the fact is that the Count of Barcelona never became king, and
his son was heir of the crown with the title of "prince of Spain" long
before his death, and only by the grace of the Frankish settlement of the
succession. So neither the pragmatica, neither a Spanish constitution never
excluded anybody from the succession. It always happened that many people
thought it would have been so (like other people today think that the
margrave of Misnia can chose Afif as the heir of the Saxon crown), probably
also because it was useful in the particular circumstances, and that Franco
chose as his heir the man who was considered by this people as the heir of
their claimant. But, in practice, the pragmatica or the previous rules of
succession play no actual role in that: they were only supposed to have.
Post by jlk7e
Post by Pierre Aronax
Post by Pierre Aronax
In you analogy, the pragmatic sanction, which never actually ruled
the
Post by jlk7e
Post by Pierre Aronax
Post by Pierre Aronax
Spanish succession,
In your opinion. Others disagree, and it was to them I referred.
So, if you think otherwise, give us a single example where the
succession
Post by jlk7e
Post by Pierre Aronax
was actualy ruled according to the pragmatic sanction.
How many opportunities did it have to be so ruled? That's like saying
that the provision for papists and those married to them to be
excluded from the British throne is invalid because it's never been
applied.
No, because the text you mentioned is undoubtfully a constitutional text,
when the constitutional nature of the Pragmatica is precisely what is in
question, and what would have badly needed to be tested, but was not. As
François Velde has shown, the evidences tend to prove that the Pragmatica
was not by itself constitutionally binding for what is of the succession.
I suppose. But the only opportunity for the pragmatica to have
applied, as I understand it (which is only to a limited degree, from
reading the discussions on atr about it) is in 1941. The fact that
Franco recognized Juan Carlos, and not the Duke of Cadiz (or his
father?) as his successor, and that the Count of Barcelona and his son
were seen as the monarchist candidates, rather than the elder branch,
suggests that even if the pragmatica has not been precisely confirmed,
it was not precisely repudiated, either. Are there any instances
where somebody who, by the pragmatica, should not have succeeded to
the throne, did so anyway?
Pierre Aronax
2003-07-26 15:31:53 UTC
Permalink
<...>
Post by jlk7e
I suppose. But the only opportunity for the pragmatica to have
applied, as I understand it (which is only to a limited degree, from
reading the discussions on atr about it) is in 1941. The fact that
Franco recognized Juan Carlos, and not the Duke of Cadiz (or his
father?) as his successor, and that the Count of Barcelona and his son
were seen as the monarchist candidates, rather than the elder branch,
suggests that even if the pragmatica has not been precisely confirmed,
it was not precisely repudiated, either. Are there any instances
where somebody who, by the pragmatica, should not have succeeded to
the throne, did so anyway?
But, even using the Pragmatica as the law of succession, the Duke of Segovia
would not have been excluded.

Pierre
Charles Stewart
2003-07-26 22:59:04 UTC
Permalink
Post by Pierre Aronax
<...>
Post by jlk7e
I suppose. But the only opportunity for the pragmatica to have
applied, as I understand it (which is only to a limited degree, from
reading the discussions on atr about it) is in 1941. The fact that
Franco recognized Juan Carlos, and not the Duke of Cadiz (or his
father?) as his successor, and that the Count of Barcelona and his son
were seen as the monarchist candidates, rather than the elder branch,
suggests that even if the pragmatica has not been precisely confirmed,
it was not precisely repudiated, either.
At the very least.
Post by Pierre Aronax
Post by jlk7e
Are there any instances
where somebody who, by the pragmatica, should not have succeeded to
the throne, did so anyway?
No. The marriage of Alfonso XIII to Princess Victoria Eugenia of
Battenberg was not subject to the Pragmatica, since that decree
purported to regulate the marriages of nearly everyone in the realm
except the King, whose marriage only required Cortes authorization
under the 1876 constitution. It is said that members of the Cortes
raised the objection of inequality to the bride-to-be, eliciting quick
letters patent from the Court of St. James's conferring upon her the
style of Royal Highness.
Post by Pierre Aronax
But, even using the Pragmatica as the law of succession, the Duke of Segovia
would not have been excluded.
No one has ever suggested that Segovia was excluded by the Pragmatica,
because he had Alfonso XIII's express approval for (some say coercion
into) his unequal 1935 marriage, and the Pragmatica only punishes the
marrying dynast if the wedding lacks royal assent. But because the
marriage was unequal, the Pragmatica was understood to strip any issue
born to it of succession rights -- and that is how the King, Segovia,
Segovia's wife, Segovia's issue, the Count of Barcelona, Juan Carlos,
Franco and all genealogical authorities have always treated the matter
-- apparently erroneously.

Segovia renounced his personal succession rights (and those of his
future descendants) in 1933 when his elder brother was excluded upon
marrying a commoner. Segovia's deaf-muteness prompted the King and
court-in-exile to persuade Segovia to step aside in favor of Don Juan.
Later Segovia retracted, claiming coercion and the illegality of a
royal heir's unilateral renunciation under Spanish monarchical law.
But he never asserted that his issue were wrongly excluded or had
succession rights.

Charles Stewart
Pierre Aronax
2003-07-29 09:02:14 UTC
Permalink
<...>
Post by Charles Stewart
Post by Pierre Aronax
But, even using the Pragmatica as the law of succession, the Duke of Segovia
would not have been excluded.
No one has ever suggested that Segovia was excluded by the Pragmatica,
You pretended that "a common misinterpretation of a 1776 pragmatic sanction
resulted in the diversion of Spain's crown to Juan Carlos de Borbon". When
is this diversion supposed to have happened? In 1941, in 1975, in 1977? You
recognized that John Charles became king by virtu of the Franco's law of
succession, who chose him, and not by virtue of any previous rule of
succession, but you said it was important that he was also recognized as the
legitimate heir by almost all Spanish monarchists. Before him, Spanish the
same Spanish monarchists recognized as claimant the count of Barcelona, and
they did so since 1941, so it seems the "common misinterpretation" happened
in 1941. In 1941, the Duke of Segovia was bypassed: it can not be using the
Pragmatica. So, I don't see how the Pragmatica is related to the fact that
the Count of Barcelona was recognized as heir by the Spanish monarchists,
that, for that reason, Franco chose his son as his heir, and that then this
son can be recognized by this monarchists as the legitimate heir of the
crown (or in 1975, or only in 1977). Clearly, the pragmatica as nothing to
do with this plot.
Post by Charles Stewart
because he had Alfonso XIII's express approval for (some say coercion
into) his unequal 1935 marriage, and the Pragmatica only punishes the
marrying dynast if the wedding lacks royal assent. But because the
marriage was unequal, the Pragmatica was understood to strip any issue
born to it of succession rights
But not Segovia himself. So, if that is the Pragmatica which is important,
then Segovia was the rightful claimant from 1941 until 1975. But you say
that what was important was that John Charles was recognized as heir of the
crown according to the traditional rules, and not only as heir of Franco: he
was so because his father was, and is father was considered as such by the
Spanish monarchists since 1941. So, what was important was not the
Pragmatica, but the renunciation of the Duke of Segovia in 1933. This
renunciation was for Segovia himself and his posterity, so, in the
"theoretical" succession as it would have to happen to "divert" the crown to
King John Charles, I don't see where there is room for the Pragmatica.
Post by Charles Stewart
-- and that is how the King, Segovia,
Segovia's wife, Segovia's issue, the Count of Barcelona, Juan Carlos,
Franco and all genealogical authorities have always treated the matter
-- apparently erroneously.
Segovia renounced his personal succession rights (and those of his
future descendants) in 1933 when his elder brother was excluded upon
marrying a commoner.
That is not what happened: the prince of the Asturies was not "excluded": he
renounced is right, as did the Duke of Segovia later, and he did so 10 days
before his marriage.
Post by Charles Stewart
Segovia's deaf-muteness prompted the King and
court-in-exile to persuade Segovia to step aside in favor of Don Juan.
Later Segovia retracted, claiming coercion and the illegality of a
royal heir's unilateral renunciation under Spanish monarchical law.
But he never asserted that his issue were wrongly excluded or had
succession rights.
He never asseted neither the contrary: he simply want back on his
renunciation, that's all. This renunciation to the renunciation was not
accepted by the greater part of the Spanish monarchists.

Pierre
Charles Stewart
2003-07-30 07:34:35 UTC
Permalink
Post by Pierre Aronax
In 1941, the Duke of Segovia was bypassed: it can not be using the
Pragmatica. So, I don't see how the Pragmatica is related to the fact that
the Count of Barcelona was recognized as heir by the Spanish monarchists,
that, for that reason, Franco chose his son as his heir, and that then this
son can be recognized by this monarchists as the legitimate heir of the
crown (or in 1975, or only in 1977). Clearly, the pragmatica as nothing to
do with this plot.
Jaime Segovia's 1933 renunciation purported to be voluntary for
himself and any future children. But what really made deviation from
the tradition of primogeniture acceptable to monarchists was the need
for a viable claimant to succeed Alfonso XIII, for which Jaime's
deafness made him unsuitable. But by the time of the ex-King's death
in 1941, Segovia had a son who was neither deaf nor mute and was the
senior healthy Spanish Bourbon male. Meanwhile, relations between
Franco and Don Juan deteriorated, so Franco had Spain adopt a law with
the conspicuous provision that upon restoration, the genealogical heir
need not be selected to occupy the throne. That made young Alfonso de
Borbon y Dampierre a viable and increasingly attractive alternative to
all monarchists interested in post-Franco Spain.

By the 1960s Franco's influence over Juan Carlos was still competing
with loyalty to the prince's father. Jaime's squabbles with Don Juan,
retractions and serial brides limited his use to Franco except as a
millstone around Don Juan's neck.

But Alfonso was raised side-by-side with Juan Carlos, and was as
bright, handsomer, and more pliable. Eventually, Alfonso was ambitious
and smart enough to offer Franco and his socially ambitious wife the
prospect of continuing their dynasty's reign in Spain by fusing
genealogically with Spain's senior Bourbon line.

Everything about this scenario indicates that Franco could have
successfully groomed Alfonso to succeed himself in power in Spain and
accustom Spain to accept him with less effort than it took to deal
with Don Juan's schemes and Juan Carlos's daily dance to avoid
becoming tainted with Falangism. Everything about Franco indicates
that he was a sincere, deeply traditional monarchist at heart (in
adopting a monarchist constitution, he eliminated females' traditional
right to wear the crown!).

Therefore, perhaps the strongest argument in favor of the Pragmatica's
unseen influence is that Franco did *not* put Spain's crown on his
grandson-in-law's brow: Like Alfonso XIII, who kept telling the
Almanach de Gotha that Jaime's children were not dynasts, the notion
that kings are born to princesses may have been integral to the
Generalissimo's understanding of how royalty worked. The only answer
that convincingly explains El Caudillo's restraint to me is the
Pragmatica -- not as the only or even chief factor in Franco's
politics, nor as a statute of fine print (I doubt he ever saw it and
he may not have known its name or provenance), but as a piece of
tradition he clung to and included when he patched together the
restoration in Spain. I suspect that in the end, Franco proved more
royal than the King.

For the legal rationales for the Pragmatica's influence on the
succession, see: http://groups.google.com/groups?selm=b36bfu023vn%40drn.newsguy.com&oe=UTF-8&output=gplain

Charles Stewart
Guy Stair Sainty
2003-08-01 11:19:34 UTC
Permalink
In article <3f299506$0$28270$***@nan-newsreader-01.noos.net>, "Pierre
says...
Post by Charles Stewart
Therefore, perhaps the strongest argument in favor of the Pragmatica's
unseen influence is that Franco did *not* put Spain's crown on his
<...>
Unseen indeed, since all this scenario works also perfectly with the
renounciation of the Duke of Segovia for himself and his posterity, which
has the great advantage to be seen. And it explain also why the Duke of
Segovia himself was never the heir of Franco. There is no room here for the
Pragmatica.
A renunciation that was not drawn up as a formal legal act; that
was not notarised; that conflicted directly with Spanish law
prohibiting renunciations of future successions; and that was
neither required nor legal under the same constitution upon whose
authority you both insist. I once took the view that the renunciation
could have been executed under the constitutional article requiring
the passage of a law to exclude an heir incompetent to carry out the
responsibilities of sovereignty; I have changed my view on this
because a legal act (if the renunciation was legal in any sense)
can only be executed by a legally competent person, and if he was
legally competent to make such an act then he was not incompetent
to be king. That is why I impose the interpretation that this can
be considered a statement of intention upon succession, and that
his acceptance of his father's abdication and recognition of Don
Juan, that were indeed within his legal competence, were sufficient
to exclude him personally, and that he (at least) accepted that
his issue was excluded because he, like the rest of the royal
family, believed the pragmatic did in fact not only deprive
descendants on unequal marriages of their titles (and sometimes
name) but also of their succession rights.

Guy Stair Sainty
www.chivalricorders.org/index3.htm
Pierre Aronax
2003-08-01 12:21:28 UTC
Permalink
Post by Guy Stair Sainty
says...
Post by Charles Stewart
Therefore, perhaps the strongest argument in favor of the Pragmatica's
unseen influence is that Franco did *not* put Spain's crown on his
<...>
Unseen indeed, since all this scenario works also perfectly with the
renounciation of the Duke of Segovia for himself and his posterity, which
has the great advantage to be seen. And it explain also why the Duke of
Segovia himself was never the heir of Franco. There is no room here for the
Pragmatica.
A renunciation that was not drawn up as a formal legal act; that
was not notarised; that conflicted directly with Spanish law
prohibiting renunciations of future successions; and that was
neither required nor legal under the same constitution upon whose
authority you both insist.
I agree entirely that the renunciation was not valid. But Charles Stewart
was pretending that Spanish monarchists and Franco acted as if the
Pragmatica was valid (the Pragmatica being in fact legally valid or not),
and I answered that they acted rather as if the renunciation of the Duke of
Segovia was valid (this renunciation being or not valid in fact). To pretend
that they acted only on the ground of the Pragmatica fail to explain how the
Duke of Segovia was excluded: to exclude him, you need his renounciation
(this renunciation being valid or not in right), and if you have his
renunciation for himself and his posterity, there is no need of the
Pragmatica, particularly considering that the Pragmatica is not mentionned
in his renunciation.
Post by Guy Stair Sainty
I once took the view that the renunciation
could have been executed under the constitutional article requiring
the passage of a law to exclude an heir incompetent to carry out the
responsibilities of sovereignty; I have changed my view on this
because a legal act (if the renunciation was legal in any sense)
can only be executed by a legally competent person, and if he was
legally competent to make such an act then he was not incompetent
to be king.
I completely agree with that.
Post by Guy Stair Sainty
That is why I impose the interpretation that this can
be considered a statement of intention upon succession, and that
his acceptance of his father's abdication and recognition of Don
Juan, that were indeed within his legal competence, were sufficient
to exclude him personally, and that he (at least) accepted that
his issue was excluded because he, like the rest of the royal
family, believed the pragmatic did in fact not only deprive
descendants on unequal marriages of their titles (and sometimes
name) but also of their succession rights.
Then why did he mentionned the exclusion of his posterity in his
renunciation two years before his "unequal" marriage? That can not be the
unequality of this still to be born posterity that can have made him accept
its exclusion. And why did the renunciation not say a word of the
Pragmatica?

Pierre
Guy Stair Sainty
2003-08-01 16:27:41 UTC
Permalink
In article <3f2a5b4f$0$2538$***@nan-newsreader-03.noos.net>, "Pierre
says...
Post by Pierre Aronax
Post by Guy Stair Sainty
says...
Post by Charles Stewart
Therefore, perhaps the strongest argument in favor of the Pragmatica's
unseen influence is that Franco did *not* put Spain's crown on his
<...>
Unseen indeed, since all this scenario works also perfectly with the
renounciation of the Duke of Segovia for himself and his posterity, which
has the great advantage to be seen. And it explain also why the Duke of
Segovia himself was never the heir of Franco. There is no room here for
the
Post by Guy Stair Sainty
Pragmatica.
A renunciation that was not drawn up as a formal legal act; that
was not notarised; that conflicted directly with Spanish law
prohibiting renunciations of future successions; and that was
neither required nor legal under the same constitution upon whose
authority you both insist.
I agree entirely that the renunciation was not valid. But Charles Stewart
was pretending that Spanish monarchists and Franco acted as if the
Pragmatica was valid (the Pragmatica being in fact legally valid or not),
and I answered that they acted rather as if the renunciation of the Duke of
Segovia was valid (this renunciation being or not valid in fact). To pretend
that they acted only on the ground of the Pragmatica fail to explain how the
Duke of Segovia was excluded: to exclude him, you need his renounciation
(this renunciation being valid or not in right), and if you have his
renunciation for himself and his posterity, there is no need of the
Pragmatica, particularly considering that the Pragmatica is not mentionned
in his renunciation.
I agree that they would have accepted his renunciation as valid, or
perhaps (as I have postulated) his acceptance of his father's
abdication and subsequent succession of his brother; but in a
conversation I had about five years ago with a former Franco minister
when we discussed this, the minister himself said that he had
known there were always questions over the legality of this renunciation. I was
not clear whether this was discussed among members of the government,
or what franco's personal views were, but the minister was very
familiar with all these arguments. Nonetheless, Charles is
correct that for everyone if I have ever discussed this with in
Spain, from this former minister, to Spanish diplomats, former
members of the royal household, and a variety of other specialists
in this area, all considered the pragmatic binding in excluding
Jaime's descendants. I have never encountered in any discussion
outside this (and the Franoc-Iberian) forum the proposal that
the pragmatic could deprive a descendant of titles, and at one
time name, but not dynastic rights. I have read the arguments
very carefully, and understand the premise on which they are made,
but continue to dissent because I do not think this relfects the
reality of how it was in fact interpreted.

There is a tendency here to discuss constitutional interpretations
in absolutist terms, as if only one interpretation is possible.
The numerous different interpretations put upon the same clauses
of the US constitution over the years demonstrate the error of
taking such a perspective. We see the interesting case of
the succession to Spanish titles (whether they would or would
not be subjct to equality laws) going all the way through the
Spanish courts with the decisions in favor of the female petitioners
who strove to assert that as eldest children they should succeed
in preference to their younger brothers, to the Supreme Court;
and then, after the latter pronounced in their favor, the separate
constitutional court rejected their case by appplying a principle
that the titles were historical relics and not subject to equal
rights law. I do not propose that the same argument should be
used, but I am not persuaded that if one of the descendants of
unequal marriages tried to assert before a court of law, as did
the duke of Seville, that he was in fact a dynast, that his case
would have been rejected. Of course this is speculation on my
part, but I believe there is powerful circumstantial evidence
to support it.
Post by Pierre Aronax
Post by Guy Stair Sainty
I once took the view that the renunciation
could have been executed under the constitutional article requiring
the passage of a law to exclude an heir incompetent to carry out the
responsibilities of sovereignty; I have changed my view on this
because a legal act (if the renunciation was legal in any sense)
can only be executed by a legally competent person, and if he was
legally competent to make such an act then he was not incompetent
to be king.
I completely agree with that.
Post by Guy Stair Sainty
That is why I impose the interpretation that this can
be considered a statement of intention upon succession, and that
his acceptance of his father's abdication and recognition of Don
Juan, that were indeed within his legal competence, were sufficient
to exclude him personally, and that he (at least) accepted that
his issue was excluded because he, like the rest of the royal
family, believed the pragmatic did in fact not only deprive
descendants on unequal marriages of their titles (and sometimes
name) but also of their succession rights.
Then why did he mentionned the exclusion of his posterity in his
renunciation two years before his "unequal" marriage? That can not be the
unequality of this still to be born posterity that can have made him accept
its exclusion. And why did the renunciation not say a word of the
Pragmatica?
Pierre
Guy Stair Sainty
www.chivalricorders.org/index3.htm
Francois R. Velde
2003-08-02 21:38:30 UTC
Permalink
Post by Guy Stair Sainty
Nonetheless, Charles is
correct that for everyone if I have ever discussed this with in
Spain, from this former minister, to Spanish diplomats, former
members of the royal household, and a variety of other specialists
in this area, all considered the pragmatic binding in excluding
Jaime's descendants. I have never encountered in any discussion
outside this (and the Franoc-Iberian) forum the proposal that
the pragmatic could deprive a descendant of titles, and at one
time name, but not dynastic rights. I have read the arguments
very carefully, and understand the premise on which they are made,
but continue to dissent because I do not think this relfects the
reality of how it was in fact interpreted.
I understand and believe all of this. The point I have been making about the
Pragmatica is not on how it was historically perceived by observers, but on what
it actually says, and how it was actually used.

In any event, what are all these Spaniards' views on the current status of the
Pragmatica? Do they think that none of the king's present grandchildren have
any right to succeed? If they don't, how do they explain the Pragmatica's
disappearing act, and can they even date its disappearance (before or after the
marriage of the king's sisters, for example)?
--
François Velde
***@nospam.org (replace by "heraldica")
Heraldry Site: http://www.heraldica.org/
Pierre Aronax
2003-08-02 22:25:11 UTC
Permalink
"Francois R. Velde" <***@heraldicanospam.invalid> a écrit dans le message
de news: ***@4ax.com...

<...>
Post by Francois R. Velde
In any event, what are all these Spaniards' views on the current status of the
Pragmatica? Do they think that none of the king's present grandchildren have
any right to succeed? If they don't, how do they explain the Pragmatica's
disappearing act, and can they even date its disappearance (before or after the
marriage of the king's sisters, for example)?
If we admitt that the desappearance of the Pragmatica is more ancient, that
can have interesting actual consequences in today Spain, and not only on the
interpretation of the past history. The present Constitution says in article
57 that

"La Corona de España es hereditaria en los sucesores de S. M. Don Juan Juan
Carlos I de Borbón, legítimo heredero de la dinastía histórica. La sucesión
en el trono seguirá el orden regular de primogenitura y representación,
siendo preferida siempre la línea anterior a las posteriores; en la misma
línea, el grado más próximo al más remoto; en el mismo grado, el varón a la
mujer, y en el mismo sexo, la persona de más edad a la de menos."

(See http://www.heraldica.org/topics/royalty/sp_succ.htm#1978)

So, the king is John Charles, no doubt on that at least, and then come his
"successors" (not very clear or the word has an other meaning in Spanish)
"by order of primogeniture and representation", etc., which is a classical
primogeniture succession with male preference. So, after the king come his
descendants, then his sisters. But then, what if all the posterity of the
count of Barcelona is extinct? Then the succession must follow the order of
primogeniture between the uncles and aunts of John Charles, an that means
that the Duke of Anjou is the next in line, long before the Duke of
Calabria. Indeed, on what ground to exclude him? The Pragmatica is no more
valid, and renunciations of the Duke of Segovia were never, and anyway the
Constitution of 1978 makes no mention of the previous renunciations and need
a law for any future renunciation (don't panic nevertheless, he is only
something like 21 in the order of succession).



Pierre
Guy Stair Sainty
2003-08-03 19:32:12 UTC
Permalink
In article <3f2c3a4e$0$13918$***@nan-newsreader-03.noos.net>, "Pierre
says...
Post by Pierre Aronax
So, the king is John Charles, no doubt on that at least, and then come his
"successors" (not very clear or the word has an other meaning in Spanish)
"by order of primogeniture and representation", etc., which is a classical
primogeniture succession with male preference. So, after the king come his
descendants, then his sisters. But then, what if all the posterity of the
count of Barcelona is extinct? Then the succession must follow the order of
primogeniture between the uncles and aunts of John Charles, an that means
that the Duke of Anjou is the next in line, long before the Duke of
Calabria. Indeed, on what ground to exclude him? The Pragmatica is no more
valid, and renunciations of the Duke of Segovia were never, and anyway the
Constitution of 1978 makes no mention of the previous renunciations and need
a law for any future renunciation (don't panic nevertheless, he is only
something like 21 in the order of succession).
Your view, however, does not conform to that generally held in
Spain and certainly held by the Zarzuela. The sisters of the
King both signed renunciations which were given to their father
"in case of need" (i.e. presumably if they came to be next in
line and therefore normally subject to the special law concerning
the heir - this in the time of Franco, of course, when there
was no competent Cortes to effect this). The Spanish authorities
certainly do not consider Luis-Alfonso a Spanish dynast; you
should write and tell them how they have misinterpreted the
law. You may be right (although I do not believe so), but your
view is certainly unknown to the Spanish.

Guy Stair Sainty
www.chivalricorders.org/index3.htm
Pierre Aronax
2003-08-03 21:27:52 UTC
Permalink
Post by Guy Stair Sainty
says...
Post by Pierre Aronax
So, the king is John Charles, no doubt on that at least, and then come his
"successors" (not very clear or the word has an other meaning in Spanish)
"by order of primogeniture and representation", etc., which is a classical
primogeniture succession with male preference. So, after the king come his
descendants, then his sisters. But then, what if all the posterity of the
count of Barcelona is extinct? Then the succession must follow the order of
primogeniture between the uncles and aunts of John Charles, an that means
that the Duke of Anjou is the next in line, long before the Duke of
Calabria. Indeed, on what ground to exclude him? The Pragmatica is no more
valid, and renunciations of the Duke of Segovia were never, and anyway the
Constitution of 1978 makes no mention of the previous renunciations and need
a law for any future renunciation (don't panic nevertheless, he is only
something like 21 in the order of succession).
Your view, however, does not conform to that generally held in
Spain and certainly held by the Zarzuela.
Yes, I know it is a bite not conformist.
Post by Guy Stair Sainty
The sisters of the
King both signed renunciations which were given to their father
"in case of need" (i.e. presumably if they came to be next in
line and therefore normally subject to the special law concerning
the heir - this in the time of Franco, of course, when there
was no competent Cortes to effect this). The Spanish authorities
certainly do not consider Luis-Alfonso a Spanish dynast; you
should write and tell them how they have misinterpreted the
law.
I am affraid that this are things they will not want to consider. :)
Post by Guy Stair Sainty
You may be right (although I do not believe so), but your
view is certainly unknown to the Spanish.
That is clear. But the fact is that the Spanish Constitution does not speak
of the past renunciations: only of king John Charles and his successors in
order of primogeniture. And in that order the duke of Anjou comes
immediately after the King's sisters and their posterity.

That being side, I hope I will not enter in history book as the intellectual
father of the next Carlist war.

Pierre
Guy Stair Sainty
2003-08-04 13:16:18 UTC
Permalink
In article <3f2d7e60$0$22494$***@nan-newsreader-03.noos.net>, "Pierre
says...
Post by Pierre Aronax
That is clear. But the fact is that the Spanish Constitution does not speak
of the past renunciations: only of king John Charles and his successors in
order of primogeniture. And in that order the duke of Anjou comes
immediately after the King's sisters and their posterity.
That being side, I hope I will not enter in history book as the intellectual
father of the next Carlist war.
One point on this, is this really so? In such cases does one actually
go back up the line before going down to the junior cadets? Some
consideration of the Pragmatic Decree of 6 October 1759 by which
Carlos III laid out both the Spanish and the Two Sicilies
successions would suggest not. Here the Spanish throne always
goes to the senior dynast, the Two sicilies to the next one who
is not heir apparent to Spain. Thus the eldest surviving (the
eldest having been excluded because of incompetence) Carlos
became Prince of the Asturias and later Carlos IV; his next
brother Ferdinand became King of the Two Sicilies. But if Carlos
had died before producing legitimate issue, Spain would have gone
to Ferdinand and the Two Sicilies to the next brother, Gabriele,
and so on down the line. If the Spanish line had continued as
it did through the posterity of Carlos IV, but each of the
junior male lines had failed to produce male heirs, then only
when all the male lines were exhausted would the Two Sicilis
have gon back up the line to Carlos IV's descendants and then
it would have passed to the next male line after the King and
his immediate heir.

The Habsburg secondogeniture, by which the thrones of Tuscany
and Modena, on the extinction of the direct male lines,
always revert to the next senior line after the Emperor and
his immediate heir apparent, was very specifically laid out
to this effect, whereas the primogeniture decree of 1759
merely articulated in detail what had already transpired
with Spain in 1700 and what was reqired in rather vague
terms under the treaties of Vienna of 1736 and Naples of
1759. For example, suppose the senior French
line had flourished after 1700 with no small-pox epidemic,
Louis XV had had several sons but Philip V's posterity had
expired (and let us imagine that the renunciations in the
treaty of Utrecht had not been enforced), then Spain would
not have passed back up the line to Louis XV's second son,
but would instead surely have passed to the Duc de Berry's
descendants as his line was next after Philip duke of Anjou.

Guy Stair Sainty
www.chivalricorders.org/index3.htm
Pierre Aronax
2003-08-04 16:29:42 UTC
Permalink
Post by Guy Stair Sainty
says...
Post by Pierre Aronax
That is clear. But the fact is that the Spanish Constitution does not speak
of the past renunciations: only of king John Charles and his successors in
order of primogeniture. And in that order the duke of Anjou comes
immediately after the King's sisters and their posterity.
That being side, I hope I will not enter in history book as the intellectual
father of the next Carlist war.
One point on this, is this really so? In such cases does one actually
go back up the line before going down to the junior cadets? Some
consideration of the Pragmatic Decree of 6 October 1759 by which
Carlos III laid out both the Spanish and the Two Sicilies
successions would suggest not. Here the Spanish throne always
goes to the senior dynast, the Two sicilies to the next one who
is not heir apparent to Spain. Thus the eldest surviving (the
eldest having been excluded because of incompetence) Carlos
became Prince of the Asturias and later Carlos IV; his next
brother Ferdinand became King of the Two Sicilies. But if Carlos
had died before producing legitimate issue, Spain would have gone
to Ferdinand and the Two Sicilies to the next brother, Gabriele,
and so on down the line. If the Spanish line had continued as
it did through the posterity of Carlos IV, but each of the
junior male lines had failed to produce male heirs, then only
when all the male lines were exhausted would the Two Sicilis
have gon back up the line to Carlos IV's descendants and then
it would have passed to the next male line after the King and
his immediate heir.
But was that according to a general rule or was it a peculiar rule builed
for the special cosuccession of Spain and Sicily?
Post by Guy Stair Sainty
The Habsburg secondogeniture, by which the thrones of Tuscany
and Modena, on the extinction of the direct male lines,
always revert to the next senior line after the Emperor and
his immediate heir apparent, was very specifically laid out
to this effect, whereas the primogeniture decree of 1759
merely articulated in detail what had already transpired
with Spain in 1700 and what was reqired in rather vague
terms under the treaties of Vienna of 1736 and Naples of
1759. For example, suppose the senior French
line had flourished after 1700 with no small-pox epidemic,
Louis XV had had several sons but Philip V's posterity had
expired (and let us imagine that the renunciations in the
treaty of Utrecht had not been enforced), then Spain would
not have passed back up the line to Louis XV's second son,
but would instead surely have passed to the Duc de Berry's
descendants as his line was next after Philip duke of Anjou.
Probably, but not in application of a general rule, rather by virtu of the
testament of Charles II who chose the following order of succession: 1) the
duke of Anjou, 2) the duke of Berry and 3) the Archduke of Austria.

Pierre
Guy Stair Sainty
2003-08-04 18:20:10 UTC
Permalink
In article <3f2e89fe$0$21542$***@nan-newsreader-02.noos.net>, "Pierre
says...
Post by Guy Stair Sainty
says...
I do not think there is a reasonable case to be made for successions
going back up the line of primogeniture unless specifically
required (as with Romania to Hohenzollern, for example).
The Two Sicilies case was based on a requirement under 2 treaties
to separate Spain and the Two Sicilies, I believe it was a more
typical scenario than the Tuscan secondogeniture case. One might
consider the Bavarian and Electorate Palatine succession, for
example, where the Bavarian Electorate passed down through junior
lines and was only united with the Palatinate when that Electoral
line became extinct. In the scenario you present, whatever
your views as to the pragmatic, the law-making body, the Cortes,
would I am reasonably sure consider the duke of Anjou excluded -
although I must give the caution that as the duke's chief adviser
in Spain, the Baron de Trenor, is also chief legal adviser to
the Cortes might, perhaps, influence the matter.

In reality, if a disaster befell the descendants of Juan Carlos
- one may imagine a horrible ETA atrocity - I am sure that
the first and most obvious choice would be the Infante D. Carlos;
but he might well refuse. Those (and they are more numerous than
Manuel has proposed) who do believe the pragmatic is still valid,
might consider that after him the eventual heir would be the
Archduchess Simeon, the infante's 2nd daughter (on the assumption
that the others would not want the Crown - and there is no
evidence at all that Maria would either). If he was to refuse
then I suspect the choice would be a republic, or indeed the
duke of Anjou, as an adult male descendant in the male line of
Alfonso XIII; but that would be a political choice not based
on a legal argument.
Guy Stair Sainty
www.chivalricorders.org/index3.htm
jlk7e
2003-08-04 03:43:15 UTC
Permalink
So, the constitution
recognised the renounciation of Don Jaime, and, in consequence, all
his descendants are excluded.
How that? Even if the constitution recognize the renunciation of the Duke of
Segovia (I don't think it does: this can not be implicite), it says also
that after the kings come his "successors". And if all the posterity of the
King is extinct, the next successor is the Duke of Anjou by primogeniture.
You mean, if all the posterity of the Count of Barcelona is extinct, no?
Pierre Aronax
2003-08-04 08:07:03 UTC
Permalink
Post by jlk7e
So, the constitution
recognised the renounciation of Don Jaime, and, in consequence, all
his descendants are excluded.
How that? Even if the constitution recognize the renunciation of the Duke of
Segovia (I don't think it does: this can not be implicite), it says also
that after the kings come his "successors". And if all the posterity of the
King is extinct, the next successor is the Duke of Anjou by
primogeniture.
Post by jlk7e
You mean, if all the posterity of the Count of Barcelona is extinct, no?
Yes.
manuel
2003-08-04 06:33:38 UTC
Permalink
Post by Pierre Aronax
<...>
The "Duke of Anjou" has no right to the Crown of Spain. The King was
recognised by the constitution as the "legítimo heredero de la
dinastía histórica". This means (and that was the reason given by the
senator who proposed this clause) that King Juan Carlos is to be
recognised as the Head of the Spanish Royal House,
Indeed.
and that he is the
Head after his father, who received the Headship from his father,
Alfonso XIII.
Indeed (at least that is what it implies, that being or not true).
This is what was approved by the Senate and incorporated
to the constitution. So, if Juan Carlos is the Head of the Royal House
is only because Don Jaime was never the Head.
No, that is interpretation: the constitution says that he is the heir of the
historical dynasty. It does not say HOW he is the heir.
A Constitution says what it says, no more. And it says that John Charles is
the heir of the dynastic claim, not how and why.
The Constitution does not speak of any previous renunciation.
So, you accept that the next Head of the Royal HOuse after Alfonso
XIII was the Count of Barcelona and then Don Juan Carlos, but that has
nothing to do with the fact that Don Jaime had lost his rights. So,
how could it be, being Don Jaime older that Don Juan?
When interpreting the constitution, and this has happened several
times, the constitutional court had paid attention to the words of the
constitution, but also to what is called "the spirit of the
legislator", ie, what was intented to mean when an article was
approved. So, the debates previous to the approval of an article are
important. And I have explained you what the arguments in favour of
this clause were and what was approved by the constitutional
commission of the senate. This is explained in a book written by
Ricardo de la Cierva, who was the chairman of that commission. So, it
is clear the meaning of the clause and its implications. Sorry if you
do not understand it.
Post by Pierre Aronax
So, the constitution
recognised the renounciation of Don Jaime, and, in consequence, all
his descendants are excluded.
How that? Even if the constitution recognize the renunciation of the Duke of
Segovia (I don't think it does: this can not be implicite), it says also
that after the kings come his "successors". And if all the posterity of the
King is extinct, the next successor is the Duke of Anjou by primogeniture.
Well, according to your interpretation, the King's sisters come first.
Post by Pierre Aronax
We can discuss if the King's sisters have rights, but no doubt about
Don Jaime and his line's exclusion. No law is needed to exclude Luis
Alfonso de Borbón, the constitution gives him no rights.
The Constitution gives rights to all successor of the King who are not
excluded by a law. It does not speak of any previous renunciation.
Which law? That was in the 1876 constitution. The present one only
talks about a law to solve doubts in the succession, not to exclude a
dynast, except if he/she married with the expressed refusal of the
King and the Cortes.
Post by Pierre Aronax
The pragmatica had effects on the succession. Just read it. Art. XII
says: "... y en su virtud la mujer o el marido que cause la notable
desigualdad quedará privado de los títulos, honores y prerrogativas
que conceden las leyes de esos Reinos ni SUCEDERÁN los descendientes
de ese matrimonio en las tales dignidades, honores, vínculos o bienes
dimanados de la Corona, los que deben recaer en las personas a quienes
en efecto corresponda la SUCESIÓN..." So, one can find at least twice
the word "sucesión" or a word of its family.
Yes, but about the succesison to "titulos, honores y prerrogativas que
conceden las leyes de esos Reinos" and to " dignidades, honores, vínculos o
bienes dimanados de la Corona". But nowhere the pragmatica spoke of the
succession to the Crown itself.
King is a "título" and a "dignidad". The successory effects of the
pragmatica have never been discussed. All books and authors about the
matter agree, at least in Spain.
Post by Pierre Aronax
The pragmatica was applied by the Royal Family until 1931 and when in
exile, too. The last official declaration about it was made by the
"Boletín de la Secretaría del Consejo Privado de SAR el Conde de
Barcelona" in October 1961, when the marriage of Juan Carlos and Sofía
was announced.
About noble marriages, one must read the Royal Order of 15 march 1875
declaring that it was still in force. But it has some interesting
information. First, the pragmatica is the "Ley 9ª, Tít. II, libro X de
la Nov. Recop.". So, the pragmatica was a law. People excluded by the
pragmatica were excluded by law.
Not by A law: the Constitution required that people must be excluded by a
specific law, not a general law.
If there is a general law, a decree can indicate if someone is subject
to a law. If the person does not agree, he can go before the courts.
Post by Pierre Aronax
So, some of your arguments cannot be
used. The order continues: "en cuanto a los matrimonios de los
infantes, grandes y títulos del Reino, y a LOS ENLACES DESIGUALES DE
PERSONAS DE LA REAL FAMILIA..." and it finishes: "... la referida
pragmatica continúa vigente en cuanto a los matrimonios de que queda
hecha mención". So, according to the wording, equal marriages were
only for members of the Royal Family. That means that, at least since
1975, nobles could marry unequally.
I don't understand your argument here (but perhaps it is because I don't
understand well the Spanish quotation: my Spanish is extremely basic).
It says that the pragmatica was in force for the types of marriages
mentioned in the order. Infantes, grandes and nobles had to ask for
permission, but it only talks about unequal marriages of persons of
the Royal Family, not about unequal marriages of nobles.
Post by Pierre Aronax
Pierre
Guy Stair Sainty
2003-08-03 19:14:32 UTC
Permalink
Post by Francois R. Velde
Post by Guy Stair Sainty
Nonetheless, Charles is
correct that for everyone if I have ever discussed this with in
Spain, from this former minister, to Spanish diplomats, former
members of the royal household, and a variety of other specialists
in this area, all considered the pragmatic binding in excluding
Jaime's descendants. I have never encountered in any discussion
outside this (and the Franoc-Iberian) forum the proposal that
the pragmatic could deprive a descendant of titles, and at one
time name, but not dynastic rights. I have read the arguments
very carefully, and understand the premise on which they are made,
but continue to dissent because I do not think this relfects the
reality of how it was in fact interpreted.
I understand and believe all of this. The point I have been making about the
Pragmatica is not on how it was historically perceived by observers, but on what
it actually says, and how it was actually used.
In any event, what are all these Spaniards' views on the current status of the
Pragmatica? Do they think that none of the king's present grandchildren have
any right to succeed? If they don't, how do they explain the Pragmatica's
disappearing act, and can they even date its disappearance (before or after the
marriage of the king's sisters, for example)?
I agree, they are very confused; the very same people who argue
that it was valid to exclude the descendants of Don Jaime, and
numerous other unequal matches, now say it no longer applies.
The late Juan Balanso wrote a book about this, suggesting that if
it does not apply now then it never applied and drawing up a
succession list which included every single descendant through
whatever line of Alfonso XIII and Alfonso XII. This is not the
only law that people consider they should ignore and it will just
go away. The Order of the Golden Fleece was abolished by a law
of the Republic, the four military Orders were declared suspended,
neither of these laws have been repealed, but the Golden
Fleece is given today as if it had never happened and the four
Military Orders were simply re-established,again without any
benefit of a law. The usual argument is that the pragmatic of
1776 was contradicted by thepresent constitution; when I point
out that (as you and others have done) that it was not mentioned
in and possibly conflicted with all the other monarchist
constitutions, there is no reply.

I think the reason is that there was really a different view of the
19th century constitutions to our present view. Spain had
five constitutions (one republican) between 1835 and 1876,
and not had anything like the kind of requirements
regarding amendments etc that one expects today, nor a constitutional
court to enforce them. Really they were just a collection of laws
brought together to regulate matters, but I do not think the
view they had of this was what we (or rather you, Pierre and Charles
Stewart) seem to believe. I am trying to find more on this and
will explore some 19th century texts that I have asked a friend
to locate.

Guy Stair Sainty
www.chivalricorders.org/index3.htm
Pierre Aronax
2003-07-26 15:31:29 UTC
Permalink
Post by Pierre Aronax
<...>
Post by jlk7e
I believe the Miguelists have no legal claim to the throne of Portugal
under the last monarchical constitution of that country. The
situation there seems, in fact, rather analogous to the Saxon
situation.
They have rights under the previous state of fact existing before the : they
were, before the reconciliation between the two monarchical branch, in a
"legitimist" position. Alexander Afif is not in such position.
Nor are the Miguelists, yet you haven't raise objections to their
claim here with similar vehemence.
They were members of the Royal house before being excluded by the
Saxe-Coburg dynasty.
And what rights do you contend are,
ipso facto, retained under "the previous state of fact" by the
Miguelists to Portugal's throne?
Miguel's succession rights to the Portugese throne were as a younger
son and were inherited through his paternal grandmother Maria I.
Exact.
He
usurped that throne from his elder brother's daughter, Maria II da
Gloria, between 1828 and 1834, after which he was expelled from
Portugal for treason and his line was constitutionally stripped of
succession rights.
Exact.
But if their rights somehow persisted, the
Miguelist claim would today come after that of Maria II's surviving
female-line heir -- the Margrave of Meissen!
They are excluded for nationality reason, as are other descendants of Maria
II. I know, the same could be objected against the Duke of Braganza, but his
ancestors were in exile, which is rather different.
Instead, before Maria II's male-line became extinct in 1932, ex-King
Manoel II reached a reconciliation with the Miguelist Duke of
Braganza, as you mentioned. They agreed that after the King's death
the claim would pass to the Duke's younger son, Dom Duarte-Nuno
(1907-76), bypassing the elder son and descendants by his wife, Anita
Stewart.
Duarte-Nuno and his son, Duarte (b.1945), have represented the claim
to Portugal's dynastic heritage since 1932 purely by mutual agreement
of the last non-reigning head of house with other male-line
descendants.
Who were members of the Royal House and were not introduced in it for the
purpose.
The Margrave of Meissen has shown no interest in putting
forth a counter-claim,
He can not, since a King of Portugal has to be Portuguese.
and lack of dissent from others with potential
rights has led to widespread acceptance of the claim of the Dukes of
Braganza despite breach of constitutional and dynastic law.
Hmm. Maybe it's inconceivable to the Margrave that someone would
insist Saxony's representation should be claimed by another dynasty
since he declined to do so...
Post by Pierre Aronax
...Franco
chose as his heir the man who was considered by this people as the heir of
their claimant. But, in practice, the pragmatica or the previous rules of
succession play no actual role in that: they were only supposed to have.
This is a distortion of Spain's monarchical history. The fact that
Franco chose, and the Segovia branch (led by two ambitious would-be
kings) never challenged Don Juan's line as Spain's future kings is
simply inexplicable without factoring in the widespread conviction
that the Pragmatica excluded Segovia's descendants.
I don't see how one can understand the Pragmatica so it excludes the Duke of
Segovia himself. He did only in 1975, little time before Franco himself. The
distortion of the succession to the Count of Barcelona has nothing to do
with the Pragmatica, much more with Segovia's own renunciations to the
Spanish succession (which were constitutionally not valid as he said it
himself latter, but that is another question).
You can argue all
you like about the technicalities of why it did not have that effect
*legally*, but as near as we can tell it had that effect *in fact*.
Not at all: see above.
You abandon the injunctions of legitimism when other principles help
you
make your case (Juan Carlos's legitimacy as king comes purely from
a 1970s vote, not monarchist tradition)
You say I am legitimist, I don't. I apply legitimists rules when dealing
with a legitimist tradition, which French tradition is (even for orleanists
who pretend now to be called legitimists). Spanish traditions are different
from French traditions and always have admitted renunciations. Beside, Spain
was a Constitutional monarchy, and his constitution made prescriptions about
succession, so a change of constitution can perfectly legaly implies a
change of these rules. France never had a constitution of that kind: its
succession can only be ruled by royal tradition.
and retreat to them when all
else fails (Miguel's line had the legitimist claim to Portugal,
No, I don't think Miguel and his descendants had not a leigitimist claim to
the crown of Portugal, since salic law was never part of the succession of
Portugal (there is nevertheless the argument that Peter I of Brazil had
become a foreigner, and so his daughter, but I will leave that). What I say
is that they were legitim dynasts (at least before they were excluded by a
legislation ad hoc), according to pre-Saxe-Coburg rule, and so that, when
the last King chose the Duke of Braganza as his successor, he chose somebody
who was a dynast according to tradition, and did not make a dynast of a
relative in female line who could not have been according to this tradition.
Beside, he chose the only convenient dynast, since he was (more or less)
Portuguess. I admit that all is not clear cut in that, but nothing was done
against the tradition. The designation of Affif will be against the
tradition, since there are still heirs which are in acceptable according to
the Saxonian constitution.
so the
Afifs' dynastic claim is less legal than Braganza's). But the fact is
that dynastic claims are a mish-mash of pragmatic, legalistic and
historical reasoning patched together to ensure that a dynasty has a
credible face (or faces) to most of those inclined to care about the
claim.
Indeed, that is a game. But it must be played seriously.
None of them survive the scrutiny of purity, so contempt for
all impure claims is anti-dynastic at best, mere snobbery at worst.
Post by Pierre Aronax
Post by jlk7e
Post by Pierre Aronax
Post by Pierre Aronax
In you analogy, the pragmatic sanction, which never actually
ruled
Post by Pierre Aronax
the
Post by jlk7e
Post by Pierre Aronax
Post by Pierre Aronax
Spanish succession,
In your opinion. Others disagree, and it was to them I referred.
So, if you think otherwise, give us a single example where the
succession
Post by jlk7e
Post by Pierre Aronax
was actualy ruled according to the pragmatic sanction.
This is a favored ruse: nothing is legal and no logic is valid unless
a precedent can be cited showing that a rule has been applied
precisely the same way in the past (e.g. exclusion of a foreign agnate
from French throne, deposition of an anointed English king, accession
of a king's daughter over a brother in Bourbon Spain).
Yes, it is how tradition works. But that is not the problem here. The fact
is that many evidences tend to proove that the Pragmatica has no
constitutional effects. You claim that it has nevertheless some legal
effects on the succession. To sustain that claim against the evidences, you
need at least one example, if not more than one.
If a precedent
is found, it is dismissed on the grounds that it has only been applied
once and it is possible to contemplate a thousand alternative
interpretations of the rule's application (e.g. French king's
authority over dynasts' marriages).
The example is ambiguous.
This is a profoundly conservative
rationale ideally suited for putting challenges to legitimist claims
on the defensive, while exceeding the requirements of ordinary logic.
I don't think so.
Post by Pierre Aronax
Post by jlk7e
How many opportunities did it have to be so ruled? That's like saying
that the provision for papists and those married to them to be
excluded from the British throne is invalid because it's never been
applied.
No, because the text you mentioned is undoubtfully a constitutional text,
Why constitutional and not merely statutory?
Past by the Parliament and ruling the succession. The pragmatica had not
such status.
Post by Pierre Aronax
when the constitutional nature of the Pragmatica is precisely what is in
question, and what would have badly needed to be tested, but was not.
Its past and recent meaning has certainly come under persuasive
challenge here, but its ongoing validity was never challenged under
the monarchy. Its application was certainly sporadic and its
interpretation seems to have changed over time. But if it is true that
Carlos III's Pragmatica did not limit succession rights, it is because
it did not attempt to do so since, when passed in 1776, that authority
was shared by king and cortes, not necessarily because subsequent
constitutions pre-empted it. In fact, several constitutional Spanish
governments affirmed the applicability of the Pragmatica into the 20th
century and I have not heard that any Spanish official or jurist
considered it inapplicable under the monarchy.
So, why were title of nobilities transmitted to sons and daughters of
"unequal" marriages during a good part of the 19th century and all the 20th
century, and that despite the Pragmatica? And why no one of the numerous
Spanish constitution say a word on the Pragmatica and its role in the
succession when they give so large space to the rules of succession?
Post by Pierre Aronax
François Velde has shown, the evidences tend to prove that the Pragmatica
was not by itself constitutionally binding for what is of the succession.
No, he has not shown that, since that point was not necessary to
establish the Pragmatica's apparent failure to impose marital
requirements as a legal condition of succession. He has, however,
argued that the Pragmatica was also constitutionally pre-empted, and I
have challenged that interpretation as over-reaching.
He has shown that, in all the case of unequal mariage where the question of
the succession arose, it was settled or has to be settled by a distinct act
of legislature. So that it is clear that the Pragmatica was not enough by
itself to exclude anybody from the succession.

Pierre
Pierre Aronax
2003-07-29 10:52:36 UTC
Permalink
<...>
Post by Pierre Aronax
They were members of the Royal house before being excluded by the
Saxe-Coburg dynasty.
So?
So they were legitimate members of the Royal house excluded for conjonctural
political reasons.
The treason, usurpation and waging of civil war against his
Sovereign -- who was also his wife, niece and charge - were deemed
good and sufficient reason to exile Infante Dom Miguel de Braganca,
and for the Constitution of Portugal to strip him and his future issue
of succession rights to the throne.
Indeed, I don't say the contrary. But it was not a general rule that
excluded them, it was an ad hoc rule. The succession in exile made some
years after the end of the monarchy did not go against the general
tradition, only again this specifical exclusion.
Post by Pierre Aronax
And what rights do you contend are,
ipso facto, retained under "the previous state of fact" by the
Miguelists to Portugal's throne?
I note that my question, above, has been left unanswered.
See above. Or have I not understand the question?
Post by Pierre Aronax
But if their rights somehow persisted, the
Miguelist claim would today come after that of Maria II's surviving
female-line heir -- the Margrave of Meissen!
They are excluded for nationality reason, as are other descendants of Maria
II. I know, the same could be objected against the Duke of Braganza, but his
ancestors were in exile, which is rather different.
Why is the Braganza line exempt from the nationality requirement,
since the exile was imposed by monarchist law for crimes against the
kingdom, i.e. civil war?
They were obliged to exile: it was a punishment, not a choice.
Anyway, that does not explain on what legal grounds you apply the
Portugese nationality requirement to exclude the Margrave of Meissen
from the succession, but refuse to apply the law excluding the
Miguelists from the Portugese succession? Both requirements are in
For the same reason. And I don't "refuse" to do so: the Portuguese
monarchists do, and I find their position relatively coherent. Clearly, the
exclusion of the posterity of Don Miguel was an emergency mesure, which has
nothing to do with the substance of the Portuguese tradition, when the
exclusion of foreigners is part of this traditions since the eviction of the
Spanish and the restoration of the Portuguese monarchy in the 17th century.
The Braganza were not foreigners, they were exiled.
Article 98 - "The collateral branch of ex-Infante Dom Miguel and all
his descendants are perpetually excluded from the succession."
Article 100 - "No foreigner may succeed to the Crown of Portugal."
(BTW, although this constitution required the Sovereign and heir to
swear to maintain Portugal as a Roman Catholic state, nothing in it
required that the Sovereign, heir or dynasts be RC, nor that they
descend in the dynastic line exclusively through RC marriages.
Interesting point. But not related to the question.
This
constitution remained in effect for the duration of the monarchy).
Consistency and fairness require that if you don't apply 98, thereby
allowing the Miguelists to succeed, you cannot apply 100, which means
the Margrave must be inserted into the Portugese succession ahead of
the Miguelists.
I admitt there is a difficulty here. Nevertheless, I maintain that the
exclusion of the Miguelists was a particular mesure, not a general one: it
was not part of the Portuguese tradition that the Miguelists should be
excluded. It was part of this tradition that the foreigners would be
excluded. When the Portuguese branches of the royal house agree to the
succession, the Miguelists were the last to be more or less Portuguese. To
make them the heir, there was only to neglect ad ad hoc part of the
constitution, which has no more political reason, and which was not accepted
by part of the Portuguese at the time.
The exclusion of morganauts in the Saxony case is not an ad hoc mesure taken
after a civil war now forgoten. Would an article of the Saxony constitution
said that the crown can go to everybody except the Afif, would Alexander
[Afif] be the last relative of the Margrave to qualify for the succession
under the rules if he was not excluded by this specific article, would the
exclusion of morganauts not be part of the German tradition and, above all,
would the Saxony have a Royal tradition of its own going back in the past
long before its constitution (as is the case for Portugal), perhaps the
question of Saxony can be seen otherwise.
But the only proper thing to do, according to your commitment to
strict succession law, is to apply both clauses, which then excludes
the Margrave and the current Duke of Braganza.
No, since 1) the Portuguese royal tradition can not be reduced to a 19th
century constitution (the Saxonian royal tradition can: there was no kingdom
of Saxony before) and 2) The exclusion of foreigners is a general rule, the
exclusion of Don Miguel and his descendancy a peculiar rule.
Post by Pierre Aronax
Duarte-Nuno and his son, Duarte (b.1945), have represented the claim
to Portugal's dynastic heritage since 1932 purely by mutual agreement
of the last non-reigning head of house with other male-line
descendants.
Who were members of the Royal House and were not introduced in it for the
purpose.
No. After the law of banishment of 1834 and under the monarchist
constitution of 1838, the Miguelists were no more members of the
Portugese royal house than you claim the Afifs are members of the
Saxon royal house.
They were members of the Royal house who were dedynastized by the
Constitution. The Afifs were never members of the House of Wettin.
And even if they were "members" of the Royal House, what meaning does
that have? It is the right to represent the legal claim to the throne
that you keep asserting is the only dynastic legacy that is not
"meaningless" and worthy of consideration here. Yet the Dukes of
Braganza's position as Portugese dynastic claimants since 1932 is
purely by mutual agreement of the last non-reigning head of house with
other male-line descendants.
Or, there is an other way to see the situation: one can consider that he
represents the pre-1838 Royal Portuguese tradition. I agree that he can not
have right under the 1838 Constitution, but nobody can, so this tradition is
dead. But hopefully the Kingdom of Portugal was not created in 1838. On the
contrary, the Kingdom of Saxony has no pre-constitutional history.
That agreement violated the terms of the monarchical constitution and
supercedes the rights of persons with a better succession claim under
strict monarchist law.
Who were these persons?
In this thread, you have insisted, "I think the only coherent point of
view is to follow the rules that existed in periods during which the
monarchy actually existed."
Yes, note the plural, "periods": in the Portuguese case, I agree that it is
not possible to find an heir under the last succession rules. But it is
possible according to previously existing rules.
You also asserted today, ".Spain was a Constitutional monarchy, and
his constitution made prescriptions about succession, so a change of
constitution can perfectly legaly implies a change of these rules.
France never had a constitution of that kind: its succession can only
be ruled by royal tradition."
But Portugal from 1834 is a constitutional monarchy, so you should
apply the same principle as in Spain: its succession is governed by
the constitution, not by "tradition," and can be changed completely
and permanently if done legally.
Indeed, that is true. But under the said constitution there are no heirs at
all. So, it is necessary to look for an older tradition. That is complitely
different anyway from creating new absolutely new rules in a vacuum, like
the Afif case.
So it is not possible under
monarchist law for Dom Miguel's direct descendant to legitimately
claim the Portugese throne, according to your own principle of
legality.
Not possible according to the rule of the Constitutional monarchy, but there
is no Constitutional heir, and Dom Miguel's descendants can be heir heirs
under the pre-constitutional rules. Probably, if Spanish some day had no
more heirs according to the Constitutional rules, we will have to look for a
Carlist claimant. But such is not the case. Anyway, and again, it is quite
different from creating new rules of succession AFTER the end of the
monarchy, without any legal basis.
Yet you have expressed no objection to the Miguelist claim
-- in fact, you defend it.
I am moderetly engaged in present Portuguese political life you know.
Nonetheless, a better claimant to Portugal's throne than the Duke of
Braganza is Dom Pedro José Folque de Mendoça Rolim de Moura Barreto,
Duque de Loulé (b.1958), direct descendant and heir general of Infanta
Ana de Jesus de Bragança's 1827 marriage to Nuno José de Mendoça Rolim
de Moura Barreto, 1st Duque de Loulé. Although younger than her
brother, Dom Miguel, she was not ousted from the royal dynasty and the
intervening descendants between her and the present duke have all been
Portugese (and apparently Roman Catholic).
Interesting. I didn't know that and I will check.
What Dom Pedro José apparently lacks is any interest in the claim, any
public recognition of his line's dynasticity by the head of house, and
any agreement with other descendants of Portugal's kings that the
Dukes of Loulé should represent the dynastic claim.
A preference for the Miguelists contrary to these known facts does not
substantiate your devotion to law above all other factors in dynastic
successions.
It was not a known fact until now for me.
Most of us accept the legitimacy of the Duke of Braganza's claim
because of his blood descent from Portugal's kings,
If you mean male-line blood descent, that is irrelevant for the Portuguese
succession.
because his
ancestor is known to have been recognized as heir by the last
ex-monarch, and because no other interested claimant demonstrates a
stronger claim. But you explicitly reject these grounds for your
validation of the Duke of Braganza's claim.
Indeed, I thought they were no other dynasts with a legitime claim.
Well, there is another possible reason for support of Braganza's
claim, one that is consistent with the other principles you have
expressed -- endorsement of what the Miguelists (and Carlists,
I certainly never endorsed the Carlist point of view of the Spanish
succession!
and
Blancs) stood for in monarchism: resistance to accountability, to
secularism, to female-line succession,
Which was absurd considering the story of the Portuguese tradition.
to constitutionalism - in
short, resistance to all change. The fact that the Miguelists are
treated differently from the Afifs despite non-compliance with strict
monarchist law in the claims of both, proves that the standards being
applied are varied to support the type of claimant that is preferred.
It isn't the law that is being defended here, but a conviction that
royalty is not of man's making, that princes are created by immutable
forces, divine action or ancient sanction, and must be kept free from
modernity's taint and deals born of convenience.
And if you go taking a good cold shower? I'm sure that will be good for you.
:)
You gave yourself away in another thread when you recently objected to
someone describing Sweden's current dynasty, the Bernadottes, as
"prestigious": Your arguments showed that you confound the notion of
dynastic "prestige" with that of "venerability", ignoring the
achievement in rapid rise and the triumph of survival.
Yes, genealogical prestige is founded on venerability in the exercice of
sovereign prerogative. On what else? If rapid rise is concerned, I suppose
the Bush are the more "prestigious" dynasty in the world at the present
time.
There's nothing unusual about having a bias in matters of such
esoteric interest (I certainly have mine and blind spots in logic
because of them). But the pretension that the standards you apply are
rigorously objective and consistent while those of others are
frivolous needs to be dropped.
You are completely wrong about me, which is not surprising since you don't
know me. I suggest you avoid such personal attacks: they are stupid.
Post by Pierre Aronax
You abandon the injunctions of legitimism when other principles help
you
make your case (Juan Carlos's legitimacy as king comes purely from
a 1970s vote, not monarchist tradition)
You say I am legitimist, I don't. I apply legitimists rules when dealing
with a legitimist tradition, which French tradition is (even for orleanists
who pretend now to be called legitimists). Spanish traditions are different
from French traditions and always have admitted renunciations. Beside, Spain
was a Constitutional monarchy, and his constitution made prescriptions about
succession, so a change of constitution can perfectly legaly implies a
change of these rules. France never had a constitution of that kind: its
succession can only be ruled by royal tradition.
Spain's monarchist tradition operated within a constitutional
framework to whatever extent that was understood, and the 1876
constitution plainly did not permit unilateral renunciations by heirs.
Jaime Segovia's renunciation was illegal, nor did it dispose of any
dynastic claims of his issue.
I completely agree with that! But the Spanish monarchists thought, or made
as if the thought the renunciations were valid.
Nonetheless the perception that the tradition mooted their claims was
prevalent and obviously influenced the chain of events that placed the
crown on Juan Carlos's head instead of on that of the Duque de Cadiz.
This chain of events can only be explained because John Charles was the son
of the man regarded as their claimant by almost all monarchists. And, at the
time when John Charles was chosen as his successor by Franco, his father can
not have based his right on the Pragmatica, but only on the renunciations of
the Duke of Segovia (this renunciations had no value, but that is an other
question entirely). So, the Pragmatica is irrelevant to what happened to the
Spanish succession between 1931 and 1975, both actually and theoretically.
You can come up with other ways that what happened could have happened
anyway, but the history's already transpired, whatever is said about
it.
Post by Pierre Aronax
and retreat to them when all
else fails (Miguel's line had the legitimist claim to Portugal,
No, I don't think Miguel and his descendants had not a leigitimist claim to
the crown of Portugal, since salic law was never part of the succession of
Portugal (there is nevertheless the argument that Peter I of Brazil had
become a foreigner, and so his daughter, but I will leave that). What I say
is that they were legitim dynasts (at least before they were excluded by a
legislation ad hoc), according to pre-Saxe-Coburg rule, and so that, when
the last King chose the Duke of Braganza as his successor, he chose somebody
who was a dynast according to tradition, and did not make a dynast of a
relative in female line who could not have been according to this tradition.
I guess this is where you retreat from your previous insistence that
only monarchical law can determine dynastic claims.
Where did I retreat that?
Since the Dukes of
Braganza don't have law on their side and you're unwilling to abandon
their cause, Presto! a new standard is introduced - "tradition".
I see: you oppose tradition to law. I don't: for existing monarchies, last
written laws first. And if the laws are no more appliable, then tradition,
which is laws before laws were written. But some monarchies have no
preconstitutional tradition, that's all.
Why
tradition is privileged to be an exception to the succession laws,
it was not intended to be an "exception" to the succession laws, rather an
other claim to consider. In the Portuguese case, if somebody is indeed the
heir according to the 1838 Constitution, as you said it is, then of course
he must be considered before the Duke of Braganza. I must check that.
but
the deliberations of the head of house and dynasts are not remains a
mystery.
They have no legal value, except if the Constitution gives them some.
Post by Pierre Aronax
Beside, he chose the only convenient dynast, since he was (more or less)
Portuguess. I admit that all is not clear cut in that, but nothing was done
against the tradition. The designation of Affif will be against the
tradition, since there are still heirs which are in acceptable according to
the Saxonian constitution.
Name them, so they can be examined for compliance with all the rules
you say are applicable -- instead of ranting against consideration of
other claimants by other criteria.
As you know, any female heir or heir in female line can be considered only
at the death of the last dynast in male line. Until that point, many death
can occur, so it is difficult to say who can be the heir at the time, since
any death can change considerably the order of succession.
Assuming the treaties with the other branches of the House of Wettin are do
not aplly, and if the markgraf and all three subsisting male dynasts
(Albert, Dedo and Gero) all die in order, then (since Timo's posterity is
excluded) we have to look for the next *living* female relative of the last
male. Since Dedo and Gero have no sister, then the crown of Saxony must
revert on the head of the present Markgraf's oldest sister Maria Josepha,
who will be the first (de jure) Queen of Saxony (at least if she is still
alive): indeed, the Constitution says that, if there is no male dynast, then
the succession goes to the closest line, without consideration of sex ("geht
die Krone auf eine aus ebenbürtiger Ehe abstammende weibliche Linie ohne
Unterschied des Geschlechts über"). That seems to include the princesses
themselves, and not only their posterity. (Note that in practice the same
happens if Dedo and Gero die before Albert or before the Markgraf). Then it
becomes more complicated and more hypothetical, since we don't know who will
be still alive. If she is still alive, Anna, the widow of Robert Afif, will
succeed (but not her posterity), and then Mathilde, the last sister of the
Markgraf (but she has no surviving posterity).
At that point, the much closer female line will be the descendancy of
princess Margarete (+ 1962), married in the house of Hohenzollern (the same
is true if my above understanding of "one Unterchied des Geschlecht" is
wrong and if the Markgraf sisters have no rights for themselves, or if they
have died before the last male). Here, somebody better than me in German can
say if my interpretation is wrong or not. The text of the Constitution is:
"Hierbei entscheidet die Nähe der Verwandtschaft mit dem zuletzt regierenden
Könige, bei gleicher Nähe das Alter der Linie, und in selbiger das Alter der
Person. Nach dem Übergange gilt wieder der Vorzug des Mannsstamms in der
Primogenitur-Ordnung". My understanding is that the succession is determined
firstly by "proximity" (Nähe) of the last dynast, only then by primogeniture
of the line, and finally by age between people of the same degree in the
same line. Perhaps am I wrong but, if I read that correctly, it means that,
in the descendancy of the Saxony-Hohenzollern marriage, between two
brothers, the older will bypass the younger as heir of the Saxony claim, but
between an uncle and his nephew, son of his elder brother, the uncle will
bypass the nephew, since he is younger by line, but closer by degree of the
last Saxon dynast. So, it is virtualy impossible to say who will able to
succeed to the Saxony claim, since it will depend of who is still alive when
the last living dynast will die.
I am absolutely not sure of my interpretation, and I am interrested to see
it discussed.
Then explain why your chosen heirs must get priority in Saxony, but
"heirs which are acceptable according to the Portugese constitution"
don't get priority over the Duke of Braganza, who isn't
constitutionally acceptable.
I didn't know until now they were still heirs acceptable according to the
Portuguese constitution.
Post by Pierre Aronax
But the fact is
that dynastic claims are a mish-mash of pragmatic, legalistic and
historical reasoning patched together to ensure that a dynasty has a
credible face (or faces) to most of those inclined to care about the
claim.
Indeed, that is a game. But it must be played seriously.
And you, not Saxony's head of house and other dynasts facing
extinction of their lineage and ancient tradition, take it seriously
-- but they don't?
Post by Pierre Aronax
Post by Pierre Aronax
So, if you think otherwise, give us a single example where the
succession
Post by Pierre Aronax
was actualy ruled according to the pragmatic sanction.
This is a favored ruse: nothing is legal and no logic is valid unless
a precedent can be cited showing that a rule has been applied
precisely the same way in the past (e.g. exclusion of a foreign agnate
from French throne, deposition of an anointed English king, accession
of a king's daughter over a brother in Bourbon Spain).
Yes, it is how tradition works.
It is how you work tradition.
Well, it seems you have decided to make that personnal. I am sorry, it is
how tradition works: nothing is legal unless a precedent can be cited.
Otherwise, we don't agree about "tradition" is.

Pierre
Charles Stewart
2003-07-30 01:17:34 UTC
Permalink
Post by Pierre Aronax
Anyway, that does not explain on what legal grounds you apply the
Portugese nationality requirement to exclude the Margrave of Meissen
from the succession, but refuse to apply the law excluding the
Miguelists from the Portugese succession? Both requirements are in
For the same reason.
Oh, referring me back to your previously stated opinion is much too
concise. Would you please re-state your position using more and
different words that are easier to challenge?
Post by Pierre Aronax
And I don't "refuse" to do so: the Portuguese
monarchists do, and I find their position relatively coherent.
Oh? You mean that just because you mentioned their adherence to a
position or suggested some of their grounds for that position doesn't
mean that you are responsible for defending their point of view on ATR
as if it were your own?

I agree with you that the Portugese monarchists' position is quite
coherent: that is indeed why the Duke of Braganza is almost
universally recognized as the representative of the Portugese
dynasty's legacy. But coherent or not, it flagrantly violates the
succession law of Portugal's monarchy.
Post by Pierre Aronax
Clearly, the
exclusion of the posterity of Don Miguel was an emergency mesure, which has
nothing to do with the substance of the Portuguese tradition, when the
exclusion of foreigners is part of this traditions since the eviction of the
Spanish and the restoration of the Portuguese monarchy in the 17th century.
The Braganza were not foreigners, they were exiled.
Miguel was (finally) defeated in 1834, banished and excluded from the
succession then. The exclusion was raised to the level of the
Constitution in 1838, four years after Miguel's vanquisher (his elder
brother, Pedro) had died. It remained enshrined in the Constitution
for the duration of the monarchy. It was no "emergency measure".

But even if it were, that makes no difference in law whatsoever --
unless you are arguing that there is some sort of supra-national,
supra-constitutional validity to "tradition" deriving from -- what (or
Who), exactly?
Post by Pierre Aronax
Consistency and fairness require that if you don't apply 98, thereby
allowing the Miguelists to succeed, you cannot apply 100, which means
the Margrave must be inserted into the Portugese succession ahead of
the Miguelists.
I admitt there is a difficulty here.
Unless you come up with a better excuse for ignoring one clause in the
constitution but not the other, guess who becomes the Margrave of
Meissen's heir to Portugal after he and his siblings die?

Alexander Afif.
Post by Pierre Aronax
Nevertheless, I maintain that the
exclusion of the Miguelists was a particular mesure, not a general one: it
was not part of the Portuguese tradition that the Miguelists should be
excluded. It was part of this tradition that the foreigners would be
excluded.
Let's look at the words in the Constitution again, to see if there is
anything that justifies ignoring one exclusion while upholding another
in the same section:

Article 98 - "The collateral branch of ex-Infante Dom Miguel and all
his descendants are perpetually excluded from the succession."

Article 100 - "No foreigner may succeed to the Crown of Portugal."

Does the word "perpetually" mean anything to you when used in a
constitution?
Post by Pierre Aronax
When the Portuguese branches of the royal house agree to the
succession, the Miguelists were the last to be more or less Portuguese.
No, they weren't.
Post by Pierre Aronax
To
make them the heir, there was only to neglect ad ad hoc part of the
constitution, which has no more political reason, and which was not accepted
by part of the Portuguese at the time.
To quote you earlier in this thread, "I thought it would be more
interesting to know who it would be according to the only rules which
import, that is the rules who were in force before the end of the
monarchy. Certainly not at least
according to new rules created I don't see on what legal basis."
Post by Pierre Aronax
But the only proper thing to do, according to your commitment to
strict succession law, is to apply both clauses, which then excludes
the Margrave and the current Duke of Braganza.
No, > since 1) the Portuguese royal tradition can not be reduced to a 19th
century constitution
When Portugal's monarchy ended de facto it was governed by law.
Whatever tradition of succession it had before that had become a past
tradition, ceasing to have any applicability, validity, authority or
existence at law. To most of us, "tradition" and "law" are not
synonymous.
Post by Pierre Aronax
And even if they were "members" of the Royal House, what meaning does
that have? It is the right to represent the legal claim to the throne
that you keep asserting is the only dynastic legacy that is not
"meaningless" and worthy of consideration here. Yet the Dukes of
Braganza's position as Portugese dynastic claimants since 1932 is
purely by mutual agreement of the last non-reigning head of house with
other male-line descendants.
Or, there is an other way to see the situation: one can consider that he
represents the pre-1838 Royal Portuguese tradition. I agree that he can not
have right under the 1838 Constitution, but nobody can, so this tradition is
dead. But hopefully the Kingdom of Portugal was not created in 1838. On the
contrary, the Kingdom of Saxony has no pre-constitutional history.
If Portugal had a "pre-constitutional" history, so did Saxony. Of
course, pre-constitutional Saxony followed German general princely law
on morganauts: the dynasts were free to de-morganatize the issue of a
selected dynast's marriage by unanimous and unretractable vote. So
Alexander Afif could put in a claim to represent Saxony's
pre-constitutional tradition...
Post by Pierre Aronax
In this thread, you have insisted, "I think the only coherent point of
view is to follow the rules that existed in periods during which the
monarchy actually existed."
That is not coherent, because Portugal's laws on succession do not
exist simultaneously, nor in layers upon one another, but in sequence.
If two laws of equal authority contradict one another, the more
recently enacted one cancels out the older version to the extent of
the contradiction. The earlier law does not lie in residuum somewhere
becoming applicable whenever the later one eliminates all candidates:
Portugal's constitution authorized the Cortes to vote a new sovereign
under such circumstances.

But under this "periods" theory, are we free to go back as far in time
as we like to pick out some monarchical period that had rules we like
and declare them applicable now?
Post by Pierre Aronax
But Portugal from 1834 is a constitutional monarchy, so you should
apply the same principle as in Spain: its succession is governed by
the constitution, not by "tradition," and can be changed completely
and permanently if done legally.
Indeed, that is true. But under the said constitution there are no heirs at
all. So, it is necessary to look for an older tradition.
No, it is not necessary and not legally justified. The absence of a
rightful claimant can simply be acknowledged and a vacancy accepted --
unless one believes that the dynastic legacy is worth continued
representation and one is willing to seek alternatives to strict
application of the old law to identify such a represenative. You know,
kinda like what the Royal House of Saxony is doing now...
Post by Pierre Aronax
That is complitely
different anyway from creating new absolutely new rules in a vacuum, like
the Afif case.
Legally there is no difference. And since Alexander Afif is a chosen
near kinsman and not an imposter, liar or stranger in blood to the
House of Saxony, I dissent from your characterization "...creating new
absolutely new rules in a vacuum, like the Afif case."
Post by Pierre Aronax
Yet you have expressed no objection to the Miguelist claim
-- in fact, you defend it.
I am moderetly engaged in present Portuguese political life you know.
Nonetheless, a better claimant to Portugal's throne than the Duke of
Braganza is Dom Pedro José Folque de Mendoça Rolim de Moura Barreto,
Duque de Loulé (b.1958)
Interesting. I didn't know that and I will check.
And might you not want to take a good cold shower? I'm sure that will
be good for you. :)
Post by Pierre Aronax
You gave yourself away in another thread when you recently objected to
someone describing Sweden's current dynasty, the Bernadottes, as
"prestigious": Your arguments showed that you confound the notion of
dynastic "prestige" with that of "venerability", ignoring the
achievement in rapid rise and the triumph of survival.
Yes, genealogical prestige is founded on venerability in the exercice of
sovereign prerogative. On what else?
The person whose characterization you challenged said nothing about
"genealogical" prestige, nor did I.

The prestige of the Bernadotte dynasty can consist in the military
distinction, diplomacy, adaptivity and constitutionalism of its
founder. It may reflect the dynasty's subsequent adherence to
constitutionalism, to the dignity of its sovereigns, to their close
relationships to other reigning dynasties, to the respect, regard and
affection with which its sovereigns are regarded in Sweden, in
Scandinavia and beyond. Prestige of Bernadotte sovereigns may be
observed politically in anti-monarchist parties' fear to stake their
political lives on abolition of an institution they resent and deeply
believe is anti-democratic and financially indefensible. The prestige
of the Bernadottes may, above all, be a relative thing measured in
terms of the dynasty's ability to keep crowned while more venerable
dynasties have toppled and declined into obscurity and pretence.
Post by Pierre Aronax
If rapid rise is concerned, I suppose
the Bush are the more "prestigious" dynasty in the world at the present
time.
I didn't know that you were such a fan of the Bushes. But "rapid rise"
may also be a result of extraordinary individual achievement that
does indeed beget extraordinary prestige, e.g. Mohatma Gandhi, Nelson
Mandela, Bill Gates -- or Napoleon.
Post by Pierre Aronax
the pretension that the standards you apply are
rigorously objective and consistent while those of others are
frivolous needs to be dropped.
You are completely wrong about me, which is not surprising since you don't
know me. I suggest you avoid such personal attacks: they are stupid.
I suggest you avoid initiating such aggressive sneering in posts: you
are notorious for it.

Charles Stewart
Guy Stair Sainty
2003-07-31 17:32:32 UTC
Permalink
Post by Charles Stewart
Anyway, that does not explain on what legal grounds you apply the
Portugese nationality requirement to exclude the Margrave of Meissen
from the succession, but refuse to apply the law excluding the
Miguelists from the Portugese succession? Both requirements are in
I agree with you that the Portugese monarchists' position is quite
coherent: that is indeed why the Duke of Braganza is almost
universally recognized as the representative of the Portugese
dynasty's legacy. But coherent or not, it flagrantly violates the
succession law of Portugal's monarchy.
I have snipped your extensive text rationalising the supposed
binding nature of the 1838 constitution because it is irrelevant.
Portugal adopted a firm policy of restricting the succession to
Portuguese subjects following the 1640 revolution, it was and
is considered a fundamental requirement simple confirmed by
its inclusion in the 1838 constitution. The Miguelists never
accepted the 1838 constitution which is completely irrelevant
to modern Portuguese monarchists who look to Dom Duarte not
as the representative of the 1830's constitutional monarchy
but as the heir of the dynasty which led Portugal to independence
in 1640. This constitution is as irrelevant as the French
constitution of 1791 was irrelevant to Louis XVIII both during
his exile and after 1815, or the Act of Union of 1707 to
James (III) and (VIII) and his successors who did not consider
themselves in any way bound to accept the union of their
tiular kingdoms of England and Scotland. If France had adopted
a new constitution (as one might have imagined it could have)
in 1830, the legitimist claim (whether personified by a
Bourbon or Orleanist claimant) would not be dependent on
whatever provisions this constitution made regarding the
succession.

Guy Stair Sainty
www.chivalricorders.org/index3.htm
jlk7e
2003-07-31 21:31:33 UTC
Permalink
Post by Guy Stair Sainty
Post by Charles Stewart
Anyway, that does not explain on what legal grounds you apply the
Portugese nationality requirement to exclude the Margrave of Meissen
from the succession, but refuse to apply the law excluding the
Miguelists from the Portugese succession? Both requirements are in
I agree with you that the Portugese monarchists' position is quite
coherent: that is indeed why the Duke of Braganza is almost
universally recognized as the representative of the Portugese
dynasty's legacy. But coherent or not, it flagrantly violates the
succession law of Portugal's monarchy.
I have snipped your extensive text rationalising the supposed
binding nature of the 1838 constitution because it is irrelevant.
Portugal adopted a firm policy of restricting the succession to
Portuguese subjects following the 1640 revolution, it was and
is considered a fundamental requirement simple confirmed by
its inclusion in the 1838 constitution. The Miguelists never
accepted the 1838 constitution which is completely irrelevant
to modern Portuguese monarchists who look to Dom Duarte not
as the representative of the 1830's constitutional monarchy
but as the heir of the dynasty which led Portugal to independence
in 1640. This constitution is as irrelevant as the French
constitution of 1791 was irrelevant to Louis XVIII both during
his exile and after 1815, or the Act of Union of 1707 to
James (III) and (VIII) and his successors who did not consider
themselves in any way bound to accept the union of their
tiular kingdoms of England and Scotland. If France had adopted
a new constitution (as one might have imagined it could have)
in 1830, the legitimist claim (whether personified by a
Bourbon or Orleanist claimant) would not be dependent on
whatever provisions this constitution made regarding the
succession.
Huh? What about the Manuelists who accepted the Duke of Braganza after 1932?
Guy Stair Sainty
2003-08-01 10:55:24 UTC
Permalink
In article <***@posting.google.com>, ***@juno.com
says...
Post by jlk7e
Post by Guy Stair Sainty
Post by Charles Stewart
Anyway, that does not explain on what legal grounds you apply the
Portugese nationality requirement to exclude the Margrave of Meissen
from the succession, but refuse to apply the law excluding the
Miguelists from the Portugese succession? Both requirements are in
I agree with you that the Portugese monarchists' position is quite
coherent: that is indeed why the Duke of Braganza is almost
universally recognized as the representative of the Portugese
dynasty's legacy. But coherent or not, it flagrantly violates the
succession law of Portugal's monarchy.
I have snipped your extensive text rationalising the supposed
binding nature of the 1838 constitution because it is irrelevant.
Portugal adopted a firm policy of restricting the succession to
Portuguese subjects following the 1640 revolution, it was and
is considered a fundamental requirement simple confirmed by
its inclusion in the 1838 constitution. The Miguelists never
accepted the 1838 constitution which is completely irrelevant
to modern Portuguese monarchists who look to Dom Duarte not
as the representative of the 1830's constitutional monarchy
but as the heir of the dynasty which led Portugal to independence
in 1640. This constitution is as irrelevant as the French
constitution of 1791 was irrelevant to Louis XVIII both during
his exile and after 1815, or the Act of Union of 1707 to
James (III) and (VIII) and his successors who did not consider
themselves in any way bound to accept the union of their
tiular kingdoms of England and Scotland. If France had adopted
a new constitution (as one might have imagined it could have)
in 1830, the legitimist claim (whether personified by a
Bourbon or Orleanist claimant) would not be dependent on
whatever provisions this constitution made regarding the
succession.
Huh? What about the Manuelists who accepted the Duke of Braganza after 1932?
The Portuguese Monarchists who from the early 1920s supported
the succession of the Miguelists line, after this was negotiated
by the duke of Braganza's aunt with Manuel II, were not wedded
to the constitution of 1838; trhey just wanted a restoration of
the Monarchy. They would certainly not have sustained the
legitimacy of the exile of Dom Miguel at this point - this
exile had been re-enforced by the Republic when it also exiled
the last King; the law of exile for both (only in the latter
case applying to the King's widow) was repealed in 1950. The
exclusion of the Miguelist line, nearly a century later, was
entirely irrlevant to all Monarchists of whatever hue.

Guy Stair Sainty
www.chivalricorders.org/index3.htm
Pierre Aronax
2003-07-31 21:10:59 UTC
Permalink
Post by Charles Stewart
Post by Pierre Aronax
Anyway, that does not explain on what legal grounds you apply the
Portugese nationality requirement to exclude the Margrave of Meissen
from the succession, but refuse to apply the law excluding the
Miguelists from the Portugese succession? Both requirements are in
For the same reason.
Oh, referring me back to your previously stated opinion is much too
concise. Would you please re-state your position using more and
different words that are easier to challenge?
It was not a general rule that excluded them, it was an ad hoc rule for
practical reasons. The succession arrangement made in exile did not go
against the general tradition, only again this specifical exclusion.

I must add that, if indeed the descendancy of the marriage between an infant
and the Duke of Loulé qualified under the 1838 Constitution, then the Duke
of Braganza is not the heir according to this constitution. But he stays the
heir according to traditionnal rules (even if the claim of dom Miguel was
not valide according to any rules).
Post by Charles Stewart
Post by Pierre Aronax
And I don't "refuse" to do so: the Portuguese
monarchists do, and I find their position relatively coherent.
Oh? You mean that just because you mentioned their adherence to a
position or suggested some of their grounds for that position doesn't
mean that you are responsible for defending their point of view on ATR
as if it were your own?
In fact, I don't remember I mentioned their adherence to any position. IIRC,
it's you who did that.
Post by Charles Stewart
I agree with you that the Portugese monarchists' position is quite
coherent: that is indeed why the Duke of Braganza is almost
universally recognized as the representative of the Portugese
dynasty's legacy. But coherent or not, it flagrantly violates the
succession law of Portugal's monarchy.
At least the Constitution of 1838. But there was a monarchy in Portugal
before that. There was no monarchy in Saxony before the Constitutional
monarchy, and even if there was one, I doubt that the Afifs would be heirs
according to its rules. So the analogy with the Portuguese case seems
inadequate.
Post by Charles Stewart
Post by Pierre Aronax
Clearly, the
exclusion of the posterity of Don Miguel was an emergency mesure, which has
nothing to do with the substance of the Portuguese tradition, when the
exclusion of foreigners is part of this traditions since the eviction of the
Spanish and the restoration of the Portuguese monarchy in the 17th century.
The Braganza were not foreigners, they were exiled.
Miguel was (finally) defeated in 1834, banished and excluded from the
succession then. The exclusion was raised to the level of the
Constitution in 1838, four years after Miguel's vanquisher (his elder
brother, Pedro) had died. It remained enshrined in the Constitution
for the duration of the monarchy. It was no "emergency measure".
It was, and it stayed in the Constitution. It sometimes happen to emeregency
measures.
Post by Charles Stewart
But even if it were, that makes no difference in law whatsoever --
I agree with that: the Duke of Braganza is not the heir according to the
1838 Constitution, at least if the posterity of the Loulé wedding is
qualified to succeed.
Post by Charles Stewart
unless you are arguing that there is some sort of supra-national,
supra-constitutional validity to "tradition" deriving from -- what (or
Who), exactly?
Well, from tradition I suspect. Dom Miguel was not heir according to the
tradition, despite what he pretended at the time. But his today descendant
certainly is.
Post by Charles Stewart
Post by Pierre Aronax
Consistency and fairness require that if you don't apply 98, thereby
allowing the Miguelists to succeed, you cannot apply 100, which means
the Margrave must be inserted into the Portugese succession ahead of
the Miguelists.
I admitt there is a difficulty here.
Unless you come up with a better excuse for ignoring one clause in the
constitution but not the other, guess who becomes the Margrave of
Meissen's heir to Portugal after he and his siblings die?
Alexander Afif.
Wait a minute. How can the Margrave or Afif be heir of Portugal since
Portuguese Constitution AND pre-constitutional Portuguese tradition exclude
BOTH foreigners? Or the king of Portugal is a descendant of the Duke of
Loulé (according to 1838 Constitution) or it is the Duke of Braganza
(according to pre-constitutional rules), but in any case the Margrave does
not qualify.
Post by Charles Stewart
Post by Pierre Aronax
Nevertheless, I maintain that the
exclusion of the Miguelists was a particular mesure, not a general one: it
was not part of the Portuguese tradition that the Miguelists should be
excluded. It was part of this tradition that the foreigners would be
excluded.
Let's look at the words in the Constitution again, to see if there is
anything that justifies ignoring one exclusion while upholding another
Article 98 - "The collateral branch of ex-Infante Dom Miguel and all
his descendants are perpetually excluded from the succession."
Article 100 - "No foreigner may succeed to the Crown of Portugal."
Does the word "perpetually" mean anything to you when used in a
constitution?
No more commentary on that: I have already agreed in the message to which
you are answering here that the Duke of Braganza was not the heir according
to the 1838 Constitution. But, in any case, the Margrave is certainly not
the heir of Portugal.
Post by Charles Stewart
Post by Pierre Aronax
When the Portuguese branches of the royal house agree to the
succession, the Miguelists were the last to be more or less Portuguese.
No, they weren't.
If that is true, then the Loulé have a good claim according to the 1838
Constitution. The Braganza have still a claim according to the
pre-constitutional rules.
Post by Charles Stewart
Post by Pierre Aronax
To
make them the heir, there was only to neglect ad ad hoc part of the
constitution, which has no more political reason, and which was not accepted
by part of the Portuguese at the time.
To quote you earlier in this thread, "I thought it would be more
interesting to know who it would be according to the only rules which
import, that is the rules who were in force before the end of the
monarchy. Certainly not at least
according to new rules created I don't see on what legal basis."
I still think that.
Post by Charles Stewart
Post by Pierre Aronax
But the only proper thing to do, according to your commitment to
strict succession law, is to apply both clauses, which then excludes
the Margrave and the current Duke of Braganza.
No, > since 1) the Portuguese royal tradition can not be reduced to a 19th
century constitution
When Portugal's monarchy ended de facto it was governed by law.
Whatever tradition of succession it had before that had become a past
tradition, ceasing to have any applicability, validity, authority or
existence at law. To most of us, "tradition" and "law" are not
synonymous.
So, when the monarchy ended in France, it was an Empire in the end of the
House Bonaparte. Whatever tradition of succession it had before that had
become a past tradition, ceasing to have any applicability etc. Poor
Monseigneur.
Post by Charles Stewart
Post by Pierre Aronax
And even if they were "members" of the Royal House, what meaning does
that have? It is the right to represent the legal claim to the throne
that you keep asserting is the only dynastic legacy that is not
"meaningless" and worthy of consideration here. Yet the Dukes of
Braganza's position as Portugese dynastic claimants since 1932 is
purely by mutual agreement of the last non-reigning head of house with
other male-line descendants.
Or, there is an other way to see the situation: one can consider that he
represents the pre-1838 Royal Portuguese tradition. I agree that he can not
have right under the 1838 Constitution, but nobody can, so this tradition is
dead. But hopefully the Kingdom of Portugal was not created in 1838. On the
contrary, the Kingdom of Saxony has no pre-constitutional history.
If Portugal had a "pre-constitutional" history, so did Saxony.
Not as a Kingdom, and this history will certainly not made of Alexander Afif
an heir to the crown.
Post by Charles Stewart
Of
course, pre-constitutional Saxony followed German general princely law
on morganauts: the dynasts were free to de-morganatize the issue of a
selected dynast's marriage by unanimous and unretractable vote. So
Alexander Afif could put in a claim to represent Saxony's
pre-constitutional tradition...
No, under pre-constitutional regime, Saxony, which was not the same state as
the kingdom of Saxony, was bound by the family treaties, and the succession
could not go in female line but must be redistributed between the surviving
branches of the dynasty. In case of extinction of all male posterity, most
part of the dignities held by the dynasty would have returned to the emperor
to be reattributed at his will.
Post by Charles Stewart
Post by Pierre Aronax
In this thread, you have insisted, "I think the only coherent point of
view is to follow the rules that existed in periods during which the
monarchy actually existed."
That is not coherent, because Portugal's laws on succession do not
exist simultaneously, nor in layers upon one another, but in sequence.
Like the pre-1830 French monarchy and the Monarchie de Juillet for exemple?
Post by Charles Stewart
If two laws of equal authority contradict one another, the more
recently enacted one cancels out the older version to the extent of
the contradiction.
Except in case of contradictory legitimacy.
Post by Charles Stewart
The earlier law does not lie in residuum somewhere
Portugal's constitution authorized the Cortes to vote a new sovereign
under such circumstances.
But under this "periods" theory, are we free to go back as far in time
as we like to pick out some monarchical period that had rules we like
and declare them applicable now?
If you find somebody who qualified as heir of the Anglo-Saxon kings, why
not? But that was not the point here: the Miguelist were excluded not by a
general rule, but by an ad hoc exclusion made for political reasons. It is
bad for them, but it is different from not being the heir according to any
rule, ancient or recent, as it is the case for Afif.
Post by Charles Stewart
Post by Pierre Aronax
But Portugal from 1834 is a constitutional monarchy, so you should
apply the same principle as in Spain: its succession is governed by
the constitution, not by "tradition," and can be changed completely
and permanently if done legally.
Indeed, that is true. But under the said constitution there are no heirs at
all. So, it is necessary to look for an older tradition.
No, it is not necessary and not legally justified. The absence of a
rightful claimant can simply be acknowledged and a vacancy accepted --
At least if there is no other rule which can play. To look for a more
ancient rule seems a good way, to invent a new one seems absurd.
Post by Charles Stewart
unless one believes that the dynastic legacy is worth continued
representation and one is willing to seek alternatives to strict
application of the old law to identify such a represenative. You know,
kinda like what the Royal House of Saxony is doing now...
Except that there are heirs according to the constitutional rule, and so no
needs to look for an alternative. Will all the claimant have the right to
chose a friend they like as their heir rather than a distant cousin on the
only argument that he is distant?
Post by Charles Stewart
Post by Pierre Aronax
That is complitely
different anyway from creating new absolutely new rules in a vacuum, like
the Afif case.
Legally there is no difference.
Legally their is no crown and no heir.
Post by Charles Stewart
And since Alexander Afif is a chosen
near kinsman and not an imposter, liar or stranger in blood to the
House of Saxony, I dissent from your characterization "...creating new
absolutely new rules in a vacuum, like the Afif case."
Will not the rule be new and unseen in a German monarchy that a morganaut in
female line will be prefered not only to morganauts in male line but also to
legitime claimant in female line on the only ground that he is closer by
blood from the present claimant? With the same logic, the Duke of Hohenberg
is rightful heir of Austria, and not Otto von Habsburg.
Post by Charles Stewart
Post by Pierre Aronax
Yet you have expressed no objection to the Miguelist claim
-- in fact, you defend it.
I am moderetly engaged in present Portuguese political life you know.
Nonetheless, a better claimant to Portugal's throne than the Duke of
Braganza is Dom Pedro José Folque de Mendoça Rolim de Moura Barreto,
Duque de Loulé (b.1958)
Interesting. I didn't know that and I will check.
And might you not want to take a good cold shower? I'm sure that will
be good for you. :)
I don't think I need it: I did not make delirious paranoid declarations on
your secret motivations.
Post by Charles Stewart
Post by Pierre Aronax
You gave yourself away in another thread when you recently objected to
someone describing Sweden's current dynasty, the Bernadottes, as
"prestigious": Your arguments showed that you confound the notion of
dynastic "prestige" with that of "venerability", ignoring the
achievement in rapid rise and the triumph of survival.
Yes, genealogical prestige is founded on venerability in the exercice of
sovereign prerogative. On what else?
The person whose characterization you challenged said nothing about
"genealogical" prestige, nor did I.
The prestige of a dynasty is genealogical, otherwise you speak of the
individual prestige of its members.
Post by Charles Stewart
The prestige of the Bernadotte dynasty can consist in the military
distinction, diplomacy, adaptivity and constitutionalism of its
founder. It may reflect the dynasty's subsequent adherence to
constitutionalism, to the dignity of its sovereigns, to their close
relationships to other reigning dynasties, to the respect, regard and
affection with which its sovereigns are regarded in Sweden, in
Scandinavia and beyond. Prestige of Bernadotte sovereigns may be
observed politically in anti-monarchist parties' fear to stake their
political lives on abolition of an institution they resent and deeply
believe is anti-democratic and financially indefensible. The prestige
of the Bernadottes may, above all, be a relative thing measured in
terms of the dynasty's ability to keep crowned while more venerable
dynasties have toppled and declined into obscurity and pretence.
Yes, but when speaking of dynasties, that is generaly not what is intended
by prestige.
Post by Charles Stewart
Post by Pierre Aronax
If rapid rise is concerned, I suppose
the Bush are the more "prestigious" dynasty in the world at the present
time.
I didn't know that you were such a fan of the Bushes. But "rapid rise"
may also be a result of extraordinary individual achievement that
does indeed beget extraordinary prestige, e.g. Mohatma Gandhi, Nelson
Mandela, Bill Gates -- or Napoleon.
Indeed, but you confuse here personal achievement and dynastical prestige. I
suspect that when speaking of the prestige of the dynasty, one is not
referring of the individual qualities of its members. A dynasty is supposed
to endure the time and so the time is the first criterion of its prestige.
Post by Charles Stewart
Post by Pierre Aronax
the pretension that the standards you apply are
rigorously objective and consistent while those of others are
frivolous needs to be dropped.
You are completely wrong about me, which is not surprising since you don't
know me. I suggest you avoid such personal attacks: they are stupid.
I suggest you avoid initiating such aggressive sneering in posts: you
are notorious for it.
I did not initiate aggressive sneering. You made wrong and frivolous
insinuations about what you suppose to be my personal convictions and
declared that all my opinions were determined by them, in spite of
discussion the facts. I think it qualifies perfectly as aggressive sneering.



Pierre
Guy Stair Sainty
2003-08-01 10:50:43 UTC
Permalink
In article <3f2985ec$0$17453$***@nan-newsreader-02.noos.net>, "Pierre
says...
Post by Pierre Aronax
Post by Charles Stewart
Post by Pierre Aronax
Anyway, that does not explain on what legal grounds you apply the
Portugese nationality requirement to exclude the Margrave of Meissen
from the succession, but refuse to apply the law excluding the
Miguelists from the Portugese succession? Both requirements are in
For the same reason.
Oh, referring me back to your previously stated opinion is much too
concise. Would you please re-state your position using more and
different words that are easier to challenge?
It was not a general rule that excluded them, it was an ad hoc rule for
practical reasons. The succession arrangement made in exile did not go
against the general tradition, only again this specifical exclusion.
I must add that, if indeed the descendancy of the marriage between an infant
and the Duke of Loulé qualified under the 1838 Constitution, then the Duke
of Braganza is not the heir according to this constitution. But he stays the
heir according to traditionnal rules (even if the claim of dom Miguel was
not valide according to any rules).
I agree with that: the Duke of Braganza is not the heir according to the
1838 Constitution, at least if the posterity of the Loulé wedding is
qualified to succeed.
I have been given to understand (by Dom Duarte and the heir
of the Loule dukedom) that the posterity is considered dynastic;
the real point is that these rights do not depend on the 1838
constitution but on the historic laws of succession. The clauses
in this constitution were not relevant to the present claim -
any more than (to use a further example to my last post) the
constitution of the French Second Empire was relevant to the
rights of the Bourbons or Orleans in France.
Post by Pierre Aronax
Post by Charles Stewart
Post by Pierre Aronax
You are completely wrong about me, which is not surprising since you
don't
Post by Charles Stewart
Post by Pierre Aronax
know me. I suggest you avoid such personal attacks: they are stupid.
I suggest you avoid initiating such aggressive sneering in posts: you
are notorious for it.
I did not initiate aggressive sneering. You made wrong and frivolous
insinuations about what you suppose to be my personal convictions and
declared that all my opinions were determined by them, in spite of
discussion the facts. I think it qualifies perfectly as aggressive sneering.
This is the modus operandi of Charles Stewart in such exchanges;
I have been their subject many times. He apparently considers
that if one espouses a particular view of one succession one must
necessarily take the same view of another, irrespective of the
fact that different successions have different laws and traditions
(as with Saxony and Portugal). This is particularly so if one
takes a view of a succession which differs from his own when he
has some deep attachment to the rights of the one he supports
(Orleans, Bourbon-Sicily-Castro,etc). He is actually a convert to
the argument that the pragmatic of 1776 never excluded dynasts
from the succession, only deriving them of their titles and
names - an interpretation ingeniously presented first by Francois
and with which I, for one, do not agree. Now he is an empassioned
proponent.

Guy Stair Sainty
www.chivalricorders.org/index3.htm
Pierre Aronax
2003-08-01 12:00:06 UTC
Permalink
Post by Guy Stair Sainty
says...
<...>
Post by Guy Stair Sainty
Post by Pierre Aronax
I agree with that: the Duke of Braganza is not the heir according to the
1838 Constitution, at least if the posterity of the Loulé wedding is
qualified to succeed.
I have been given to understand (by Dom Duarte and the heir
of the Loule dukedom) that the posterity is considered dynastic;
the real point is that these rights do not depend on the 1838
constitution but on the historic laws of succession.
Of course, if the Loulés are dynasts, they are dynasts both according to the
Constitution of 1838 AND according to the previously existing rules. It is
interesting to know that the Duke of Loulé himself (I suppose he is the
senior descendant of the Duke who married the infanta) is seeing the things
from a pre-1838 point of view.
Post by Guy Stair Sainty
The clauses
in this constitution were not relevant to the present claim -
any more than (to use a further example to my last post) the
constitution of the French Second Empire was relevant to the
rights of the Bourbons or Orleans in France.
I used myself this analogy in an other post. Nevertheless, I see a slight
difference now: the Constitution of the Second Empire was promulgated by a
sovereign who was not the rightful sovereign according to the traditional
rules, so a claimant to the succession of the ancient monarchy is fully
entitle to dismiss it. The same is true for the rules of succession in use
during the 1830-48 French regime from a Legitimist point of view (even if
this rules were never put into words and embodied in the revised version of
the Charte). On the contrary, the Portuguese Constitution was promulgated by
a sovereign who was the rightful sovereign according to the traditional
rules (except if you consider the pretences of Dom Miguel as having any
basis in the tradition. I don't see how, but I don't know exactly what were
his arguments to depose his wife-niece). So, it is much more difficult to
set it aside from a traditional position. A better analogy, which you used
in a previous post, would be the French constitution of 1791, promulgated
under the reign of somebody who was the rightful King, but nevertheless
dismissed by the subsequent rightfull sovereigns because it was too
obviously contrary to the tradition. I still wonder nevertheless if such a
restoration of the tradition can be made without an actual political
restoration.


Coming back to realities, is the present Duke of Loulé in personnal relation
with the Duke of Braganza, and can he be considered to be a monarchist?

Pierre
Guy Stair Sainty
2003-08-01 16:31:20 UTC
Permalink
In article <3f2a5658$0$2539$***@nan-newsreader-03.noos.net>, "Pierre
says...
Post by Pierre Aronax
Post by Guy Stair Sainty
says...
Coming back to realities, is the present Duke of Loulé in personnal relation
with the Duke of Braganza, and can he be considered to be a monarchist?
Yes; and his eldest son and heir was actually apppointed delegate
and president of the Portuguese Association of the Constantinian
Order (headed by Infante D. Carlos) at the recommendation of Dom
Duarte; this Association includes not only Dom Duarte, but also
Dom Miguel and Dom Henrique (the latter two both participated in
the Order's Sain George's Day Mass held in the Lisbon basilica
in April of this year). I suspect that the reason he was chosen
by Dom Duarte was precisely because of his eminent position in
Portugal.

Guy Stair Sainty
www.chivalricorders.org/index3.htm
David Pritchard
2003-08-02 02:36:14 UTC
Permalink
Post by Pierre Aronax
Coming back to realities, is the present Duke of Loulé in personnal relation
with the Duke of Braganza, and can he be considered to be a monarchist?
Pierre
Dear Pierre,

The present Duke of Loulé and his son Phillip are supporters of H.R.H.
Dom Duarte Pio, Duke of Braganca.

With kindest regards,

David Pritchard
Pierre Aronax
2003-08-01 18:28:50 UTC
Permalink
Post by Guy Stair Sainty
says...
<...>
So the basis of Portuguese monarchism, then, is to ignore all the
monarchs who ruled between 1834 and 1910 and to base their claims on
the usurpation of the traitor Dom Miguel?
Not necessarily. If I understand well what has explained Guy Stair Sainty,
it seems to be rather a third position (neither miguelist, nor
constitutionalist: the usurpation of Dom Miguel was not valid, but neither
was the exclusion of its posterity in the 1838 Constitution. So, the rulers
who reigned between 1834 and 1910 are legitimate, but the Duke of Braganza
is their heir.

Pierre
jlk7e
2003-08-02 07:01:01 UTC
Permalink
Post by Pierre Aronax
If I understand well what has explained Guy Stair Sainty,
Post by Pierre Aronax
it seems to be rather a third position (neither miguelist, nor
constitutionalist: the usurpation of Dom Miguel was not valid, but neither
was the exclusion of its posterity in the 1838 Constitution. So, the rulers
who reigned between 1834 and 1910 are legitimate, but the Duke of Braganza
is their heir.
Dear Pierre,
Let me explain the post 1910 situation of the Royal House of
Bragança.
In 1910, a successful revolution forced the king from his throne and
to go into exile in England.In an attempt to reconcile the two
branches of the Royal House of Bragança, King Manuel II met with Dom
Miguel (also known as King Miguel II), the only son of King Miguel I
(reigned 1828-1834), at the English city of Dover in 1912. At this
meeting the future Chiefship of the Royal House of Bragança was
discussed as King Manuel II had not yet married. In 1920, Dom Miguel
resigned his dynastic rights in favour of his only son Dom Duarte Nuno
by his wife Dona Theresa, daughter of Carl Prince von
Lowenstein-Wertheim-Rosenberg.
That's a rather deceptive way of putting it. By his previous wife, a
Thurn und Taxis princess, Dom Miguel had two other sons, who died in
1923 and 1919 respectively. The elder, who married an American woman,
has descendants still alive.
Post by Pierre Aronax
In 1927, Dom Miguel died leaving Dom Duarte Nuno as the male heir of
King Miguel I. Five years later, King Manuel II died without issue
leaving Dom Duarte Nuno as the legitimate Chief of the Royal House of
Bragança according to the terms of the Pact of Paris.
What right did Manuel have to unilaterally change the laws of
succession that had been established by a constitution promulgated by
his reigning ancestor, Queen Maria II?
Post by Pierre Aronax
Please note that the parliament of the Portuguese Republic recognised
and affirmed the wishes of the late King Manuel II as expressed in the
Pact of Paris.
In what sense? Certainly not in the sense of making Dom Duarte King
of Portugal. I'm not sure, exactly, of the competency of a republic
to determine who the rightful monarch of their country would be,
without having any actual intention to restore the monarchy. I mean,
they can declare all they like, but unless they make Duarte king, it
doesn't really change the fact that he's not the rightful heir under
Portugal's monarchical constitution.
Pierre Aronax
2003-08-02 09:53:55 UTC
Permalink
Post by jlk7e
I'm not sure, exactly, of the competency of a republic
to determine who the rightful monarch of their country would be,
without having any actual intention to restore the monarchy.
Neither am I. It is a strange logic: how can a claimant received his
legitimacy from a regime which evolves in a parallel legitimacy? I can
understand that a de facto regime can have an effect on the name, or even on
the title of a claimant if he lives in the country, but not make him
claimant to the de jure regime it has abolished! It would be possible if the
de facto regime claims to be the suspended de jure regime (like in Spain
when the State of Franco claimed to be a monarchy), but that is certainly
not the case in Portugal.



Pierre
David Pritchard
2003-08-02 16:20:20 UTC
Permalink
Post by Pierre Aronax
Post by jlk7e
I'm not sure, exactly, of the competency of a republic
to determine who the rightful monarch of their country would be,
without having any actual intention to restore the monarchy.
Neither am I. It is a strange logic: how can a claimant received his
legitimacy from a regime which evolves in a parallel legitimacy? I can
understand that a de facto regime can have an effect on the name, or even on
the title of a claimant if he lives in the country, but not make him
claimant to the de jure regime it has abolished! It would be possible if the
de facto regime claims to be the suspended de jure regime (like in Spain
when the State of Franco claimed to be a monarchy), but that is certainly
not the case in Portugal.
Dear Pierre,

Salazar planned to have his regime followed by a restored monarchy
just as Franco did but unfortunatly he died unexpectedly before he
could follow through on his plans.

Kindest regards,

David Pritchard
Pierre Aronax
2003-08-04 15:12:43 UTC
Permalink
Post by David Pritchard
Dear Pierre,
Salazar planned to have his regime followed by a restored monarchy
just as Franco did but unfortunatly he died unexpectedly before he
could follow through on his plans.
1: Did Salazar die unexpectedly ? AFAIK he died in 1970, two years after a
stroke that made him uncapable of maintaing his work as the President of
the
Council of Ministers (=Head of the Government). One can often read the
story
that the politicians maintained the illusion of Salazar still being
powerfull
when being near his side, even organizing some cabinet meetings that were
nothing more than theatre.
2: The ideology of the Estado Novo would seem to contradict the idea of a
restoration of the monarchy. I cannot imagine that Salazar planned to have
the
Estado Novo connected with his name only. AFAIK he wished to have Marcelo
Caetano as his successor. Although this came true in 1968, Salazar himself
did
not know that because of his state of health and the well planned illusion
(see
above).
Note however that I did not write what you are commenting above (I know, you
didn't say I did, but since you are commenting this in an answer to one of
my post and then you comment something I wrote, I want to avoid any
confusion).
Franco's Spain was legally a monarchy, Salazar's Spain, for what I know,
was
not.
Salazar's Spain ????????????????
By contrast, I did write that and it was obviously a lapse: please read, of
course, "Salazar's Portugal".



Pierre
Pierre Aronax
2003-08-02 09:48:40 UTC
Permalink
Post by Pierre Aronax
If I understand well what has explained Guy Stair Sainty,
Post by Pierre Aronax
it seems to be rather a third position (neither miguelist, nor
constitutionalist: the usurpation of Dom Miguel was not valid, but neither
was the exclusion of its posterity in the 1838 Constitution. So, the rulers
who reigned between 1834 and 1910 are legitimate, but the Duke of Braganza
is their heir.
Dear Pierre,
Let me explain the post 1910 situation of the Royal House of
Bragança.
In 1910, a successful revolution forced the king from his throne and
to go into exile in England.In an attempt to reconcile the two
branches of the Royal House of Bragança, King Manuel II met with Dom
Miguel (also known as King Miguel II), the only son of King Miguel I
(reigned 1828-1834), at the English city of Dover in 1912. At this
meeting the future Chiefship of the Royal House of Bragança was
discussed as King Manuel II had not yet married. In 1920, Dom Miguel
resigned his dynastic rights in favour of his only son Dom Duarte Nuno
by his wife Dona Theresa, daughter of Carl Prince von
Lowenstein-Wertheim-Rosenberg.
You are forgetting his son by his first marriage, but anyway his posterity
can have no claim today.
Post by Pierre Aronax
Two years later, in 1922, The Pact of Paris was signed by the
representatives of the married but heirless King Manuel II and Dom
Duarte Nuno which resolved the future Chiefship of the Royal House of
A. by the first signatory (for H.M. King Dom Manuel II) that His
August Head in default of a direct heir will accept the successor
indicated by the general Cortes of the Portuguese nation.
B. Equally he (H.M. King Dom Manuel II) will accept the resolution of
the same Cortes as to the political constitution of the restored
Monarchy.
C. With the agreement of the Holy See the religious question will be
resolved by means of a diploma which is to be submitted to the Cortes.
So, if I read well, Manuel II did NOT recognized the duke of Braganza as his
successor! He only accepted the candidate who will be chosen by the Cortes.
I find the intervention of the Holy See interesting but I don't understand
its purpose.
Post by Pierre Aronax
By the second Signatory (for H.R.H. Dom Duarte Nuno) it was said
before the proceeding Declaration His August Head (H.R.H. Dom Duarte
Nuno) would ask and recommend to all His supporters that they would
accept as King of Portugal Dom Manuel II, and that they would unite
loyally under the same Flag that shelters Monarchists. That is the
Flag of the Motherland and that Flag shall save Portugal.
In 1927, Dom Miguel died leaving Dom Duarte Nuno as the male heir of
King Miguel I. Five years later, King Manuel II died without issue
leaving Dom Duarte Nuno as the legitimate Chief of the Royal House of
Bragança according to the terms of the Pact of Paris.
Not according to what you quoted above at least.
Post by Pierre Aronax
Dom Duarte Nuno
married Princess Dona Maria Francisca of Brazil, the daughter of Dom
Pedro Prince of Grão Para, in 1942. This union resulted in the birth
of three sons: Dom Duarte Pio (now Duke of Bragança), Dom Miguel (now
Duke of Viseu) and Dom Henrique (now Duke of Coimbra). The Royal
Family was invited to return to Portugal in 1950 at the request of the
benevolent
That is not exactly the adjective I would have chosen...
Post by Pierre Aronax
dictator Antonio de Oliveira Salazar who was President of
the Council of Ministers of the National Assembly of the Republic of
Portugal (the legislative body which replaced the Cortes).
Please note that the parliament of the Portuguese Republic recognised
and affirmed the wishes of the late King Manuel II as expressed in the
Pact of Paris.
How that? Thet did not chose a king.
Post by Pierre Aronax
The titles of Dom Duarte as Duke of Bragança, Dom
Miguel as Duke of Viseu and Dom Hemrique as Duke of Coimbra are
recognised by the republic and have been confirmed by the Portuguese
parliament.
I don't think the Portuguese Republic recognises titles, but only tolerates
them. Anyway, how can be the recognition of the titles of dukes be relevant
to the question of the succession.

Pierre
David Pritchard
2003-08-02 16:32:32 UTC
Permalink
Post by Pierre Aronax
Post by Pierre Aronax
In 1910, a successful revolution forced the king from his throne and
to go into exile in England.In an attempt to reconcile the two
branches of the Royal House of Bragança, King Manuel II met with Dom
Miguel (also known as King Miguel II), the only son of King Miguel I
(reigned 1828-1834), at the English city of Dover in 1912. At this
meeting the future Chiefship of the Royal House of Bragança was
discussed as King Manuel II had not yet married. In 1920, Dom Miguel
resigned his dynastic rights in favour of his only son Dom Duarte Nuno
by his wife Dona Theresa, daughter of Carl Prince von
Lowenstein-Wertheim-Rosenberg.
You are forgetting his son by his first marriage, but anyway his posterity
can have no claim today.
Dear Pierre,

As he is excluded from the succession I had no need to mention him.
Post by Pierre Aronax
Post by Pierre Aronax
A. by the first signatory (for H.M. King Dom Manuel II) that His
August Head in default of a direct heir will accept the successor
indicated by the general Cortes of the Portuguese nation.
B. Equally he (H.M. King Dom Manuel II) will accept the resolution of
the same Cortes as to the political constitution of the restored
Monarchy.
C. With the agreement of the Holy See the religious question will be
resolved by means of a diploma which is to be submitted to the Cortes.
So, if I read well, Manuel II did NOT recognized the duke of Braganza as his
successor! He only accepted the candidate who will be chosen by the Cortes.
I find the intervention of the Holy See interesting but I don't understand
its purpose.
He left the choice of the heir to the Cortes which was replaced by the
Portuguese Parliament. The Portuguese Parliament chose Dom Duarte Nuno
and his sons as the heirs to the Royal House. The mention of the
Vatican involves the confiscation of church property under the Emp.
Pedro line. The Miguelists wanted the Church restored to its former
position.
Post by Pierre Aronax
Post by Pierre Aronax
Dom Duarte Nuno
married Princess Dona Maria Francisca of Brazil, the daughter of Dom
Pedro Prince of Grão Para, in 1942. This union resulted in the birth
of three sons: Dom Duarte Pio (now Duke of Bragança), Dom Miguel (now
Duke of Viseu) and Dom Henrique (now Duke of Coimbra). The Royal
Family was invited to return to Portugal in 1950 at the request of the
benevolent
That is not exactly the adjective I would have chosen...
I think that depends on if you are a communist or a socialist does it
not?
Post by Pierre Aronax
Post by Pierre Aronax
dictator Antonio de Oliveira Salazar who was President of
the Council of Ministers of the National Assembly of the Republic of
Portugal (the legislative body which replaced the Cortes).
I don't think the Portuguese Republic recognises titles, but only tolerates
them. Anyway, how can be the recognition of the titles of dukes be relevant
to the question of the succession.
In the case of the Royal House of Braganza they have made an
exception.

Kindest regards,

David Pritchard
Pierre Aronax
2003-08-02 16:47:57 UTC
Permalink
"David Pritchard" <***@hotmail.com> a �crit dans le message de news: ***@posting.google.com...

<...>
Post by David Pritchard
Post by Pierre Aronax
You are forgetting his son by his first marriage, but anyway his posterity
can have no claim today.
Dear Pierre,
As he is excluded from the succession I had no need to mention him.
Precisely, I think his exclusion from the succession is extremely debatable,
and so he can be mentioned here. But his descendants are excluded anyway, as
foreigners.
Post by David Pritchard
Post by Pierre Aronax
Post by Pierre Aronax
A. by the first signatory (for H.M. King Dom Manuel II) that His
August Head in default of a direct heir will accept the successor
indicated by the general Cortes of the Portuguese nation.
B. Equally he (H.M. King Dom Manuel II) will accept the resolution of
the same Cortes as to the political constitution of the restored
Monarchy.
C. With the agreement of the Holy See the religious question will be
resolved by means of a diploma which is to be submitted to the Cortes.
So, if I read well, Manuel II did NOT recognized the duke of Braganza as his
successor! He only accepted the candidate who will be chosen by the Cortes.
I find the intervention of the Holy See interesting but I don't understand
its purpose.
He left the choice of the heir to the Cortes which was replaced by the
Portuguese Parliament. The Portuguese Parliament chose Dom Duarte Nuno
and his sons as the heirs to the Royal House.
Strange: how can they have do that? Could you be more specific about this
decision. Did really the Parliament of a Republic declare something like:
"We chose X as heir of the Crown of the Kingdom we, on the other end, refuse
to restore. But they have to stay in exile nevertheless"? Do you know if
this decision of the Parliament is readable on line or, if not, where it is
easily accessible in print?
Post by David Pritchard
The mention of the
Vatican involves the confiscation of church property under the Emp.
Pedro line. The Miguelists wanted the Church restored to its former
position.
Thanks for this precision.
Post by David Pritchard
Post by Pierre Aronax
Post by Pierre Aronax
Dom Duarte Nuno
married Princess Dona Maria Francisca of Brazil, the daughter of Dom
Pedro Prince of Grão Para, in 1942. This union resulted in the birth
of three sons: Dom Duarte Pio (now Duke of Bragança), Dom Miguel (now
Duke of Viseu) and Dom Henrique (now Duke of Coimbra). The Royal
Family was invited to return to Portugal in 1950 at the request of the
benevolent
That is not exactly the adjective I would have chosen...
I think that depends on if you are a communist or a socialist does it
not?
Perhaps it depends rather on if I am against dictature in modern context or
not, does it not?
Post by David Pritchard
Post by Pierre Aronax
Post by Pierre Aronax
dictator Antonio de Oliveira Salazar who was President of
the Council of Ministers of the National Assembly of the Republic of
Portugal (the legislative body which replaced the Cortes).
I don't think the Portuguese Republic recognises titles, but only tolerates
them. Anyway, how can be the recognition of the titles of dukes be relevant
to the question of the succession.
In the case of the Royal House of Braganza they have made an
exception.
I would be curious to see the texts then. Anyway, as I said, how is the
recognition of titles of dukes relevant to the question of the succession?

Pierre
Guy Stair Sainty
2003-08-03 19:36:25 UTC
Permalink
In article <***@posting.google.com>, ***@juno.com
says...
One might consider that Pedro's rebellion against his own father
was "treason" and that Miguel was right to claim the throne, as
Brazil was constitutionally a separate crown.
But the crown was proclaimed for Pedro at the time in Portugal. It
was my understanding that Miguel basically rebelled against the
constitutional authority which was already in place in Portugal. That
is to say, you are depicting it as though the British were supporting
liberal rebels who wanted Maria to be queen. But rather, Miguel
himself usurped the throne and tried to overturn an already existing
liberal constitution.
No, because in the eyes of Miguel and the latter's supporters,
Pedro was now a foreign sovereign and, further more, had no
intention of using the occasion of his father's death to
reunite Brazil and Portugal, but rather to insure the succession
of one of his children to Portugal and the other to Brazil. Both
brothers were proclaimed King simultaneously, and it was to
try and solve the problem that Maria and Miguel were betrothed.

Guy Stair Sainty
www.chivalricorders.org/index3.htm
Guy Stair Sainty
2003-08-04 13:04:35 UTC
Permalink
In article <3f2d7d61$0$14134$***@nan-newsreader-02.noos.net>, "Pierre
says...
Post by Guy Stair Sainty
No, because in the eyes of Miguel and the latter's supporters,
Pedro was now a foreign sovereign
Did he lost his Portuguese citizenship?
As you know the reason the ban on foreigners being dynasts was
to prevent the union of Portugal with another Crown. The Miguelist
arguement, once Pedro had forced the separation of Brazil and
becom a foreign sovereign was that Brazil was as foreign as anywhere
else. I believe there is a certain logic in this argument, as
Pedro did not consider the two thrones should now be reunited.
Post by Guy Stair Sainty
and, further more, had no
intention of using the occasion of his father's death to
reunite Brazil and Portugal, but rather to insure the succession
of one of his children to Portugal and the other to Brazil. Both
brothers were proclaimed King simultaneously, and it was to
try and solve the problem that Maria and Miguel were betrothed.
So, do you consider that Maria II and his successors have to be considered
as illegitime sovereigns for the posterity of Dom Miguel to be still dynasts
(since in that case the 1838 Constitution will be irrelevant)?
I am not a partisan of either one or the other. My original comment
was in response to the accusation that Miguel was a "traitor" -
I have tried to show that the situation was more complex than
such labels allow, and explain the rationale for both claims. I
do not consider that a line deposed before the advent of a con-
stitution which excluded them should be bound by the terms of
that consititution, particularly when that constitution itself
has been replaced several times since (albeit by republican ones).
I would take a different view if the dynasty had itself reigned
because of that same constitution and whatever rights it might
have had derived from the authority of that constitution - say,
for example, when one discusses the claims or pretensions of
the Bonapartes. Portugal is an ancient Monarchy; the house of
Avis, a bastard line of the House of Capet, was itself the
founding dynasty of the kingdom and the present line (which
itself descends from this House in the illegitimate line, but
is nonetheless the senior male representative line) played
an important role in leading Portugal to independence in 1640.
In such circumstances I do not believe that a relatively short-
lived 19th century constitution, which included an article
demanded by Portugal's British "allies" and her liberal supporters
within the country, is of any relevance today in determining
the person of the heir. This is particularly so when on considers
that this "exile" clause is the sole impediment to the lawful
claim of the present Duke of Braganza even under this same
constitution.

Guy Stair Sainty
www.chivalricorders.org/index3.htm
Pierre Aronax
2003-08-04 15:19:50 UTC
Permalink
Post by Guy Stair Sainty
says...
Post by Guy Stair Sainty
No, because in the eyes of Miguel and the latter's supporters,
Pedro was now a foreign sovereign
Did he lost his Portuguese citizenship?
As you know the reason the ban on foreigners being dynasts was
to prevent the union of Portugal with another Crown. The Miguelist
arguement, once Pedro had forced the separation of Brazil and
becom a foreign sovereign was that Brazil was as foreign as anywhere
else. I believe there is a certain logic in this argument, as
Pedro did not consider the two thrones should now be reunited.
My question was more technical: I was wondering if, according to Portuguese
law of the time, he lost or not his citizenship (or rather nationality) when
Brazil was recognized as an independent State by Portugal.
Post by Guy Stair Sainty
Post by Guy Stair Sainty
and, further more, had no
intention of using the occasion of his father's death to
reunite Brazil and Portugal, but rather to insure the succession
of one of his children to Portugal and the other to Brazil. Both
brothers were proclaimed King simultaneously, and it was to
try and solve the problem that Maria and Miguel were betrothed.
So, do you consider that Maria II and his successors have to be considered
as illegitime sovereigns for the posterity of Dom Miguel to be still dynasts
(since in that case the 1838 Constitution will be irrelevant)?
I am not a partisan of either one or the other. My original comment
was in response to the accusation that Miguel was a "traitor" -
I have tried to show that the situation was more complex than
such labels allow, and explain the rationale for both claims. I
do not consider that a line deposed before the advent of a con-
stitution which excluded them should be bound by the terms of
that consititution, particularly when that constitution itself
has been replaced several times since (albeit by republican ones).
I would take a different view if the dynasty had itself reigned
because of that same constitution and whatever rights it might
have had derived from the authority of that constitution - say,
for example, when one discusses the claims or pretensions of
the Bonapartes.
But, if Maria II was a rightful queen, then the Constitution made in her
name is rightful for the succession of all the dynasts.
Post by Guy Stair Sainty
Portugal is an ancient Monarchy; the house of
Avis, a bastard line of the House of Capet, was itself the
founding dynasty of the kingdom and the present line (which
itself descends from this House in the illegitimate line, but
is nonetheless the senior male representative line) played
an important role in leading Portugal to independence in 1640.
But has not the duke of Braganza a better claim as the senior heir in female
legitimate line?

Pierre
jlk7e
2003-08-04 19:11:10 UTC
Permalink
Guy Stair Sainty <***@sainty.org> wrote in message news:<***@drn.newsguy.com>...

(snip)
Post by Guy Stair Sainty
I am not a partisan of either one or the other. My original comment
was in response to the accusation that Miguel was a "traitor" -
I have tried to show that the situation was more complex than
such labels allow, and explain the rationale for both claims. I
do not consider that a line deposed before the advent of a con-
stitution which excluded them should be bound by the terms of
that consititution, particularly when that constitution itself
has been replaced several times since (albeit by republican ones).
I would take a different view if the dynasty had itself reigned
because of that same constitution and whatever rights it might
have had derived from the authority of that constitution - say,
for example, when one discusses the claims or pretensions of
the Bonapartes.
But by most standards, Miguel was an usurper (let's not get into
treason), and a cadet member of the royal house. As head of the
house, Maria II had the right to exclude him and his heirs. I don't
see how one who accepts the legitimacy of Maria and her successors
could then say that those monarchs' exclusion of Miguel and his
descendants was invalid. That is to say, I'd think one would have to
be a Miguelist to support the legal claims of Dom Miguel's
descendants.

Portugal is an ancient Monarchy; the house of
Post by Guy Stair Sainty
Avis, a bastard line of the House of Capet, was itself the
founding dynasty of the kingdom
No, a cadet branch of the first Capet House of Burgundy was the
founding dynasty of the kingdom. This line died out in 1383 with the
death of King Ferdinand. The throne of his daughter Brites was then
usurped by Ferdinand's bastard half-brother, Joao of Aviz, in 1385.

and the present line (which
Post by Guy Stair Sainty
itself descends from this House in the illegitimate line, but
is nonetheless the senior male representative line) played
an important role in leading Portugal to independence in 1640.
The claim of the Braganzas was not based on their male line descent
from Joao of Aviz's illegitimate son, but due to their descent from
the daughter of one of Manuel I's younger sons, as far as I understand
it.
Post by Guy Stair Sainty
In such circumstances I do not believe that a relatively short-
lived 19th century constitution, which included an article
demanded by Portugal's British "allies"
So the British, who saved Portugal from Bonaparte, and had
traditionally been allied to Portugal for centuries, do not qualify as
genuine allies? Certainly, the British interest in Portugal was
self-serving, but the British qualify as allies at least as much as
any country can be seen as allied to another.

and her liberal supporters
Post by Guy Stair Sainty
within the country, is of any relevance today in determining
the person of the heir.
Then what is of relevance in determining the heir? I don't see how
ignoring rules which specifically exclude one candidate, while at the
same time paying close attention to rules (Portuguese nationality)
that exclude more senior candidates, is a valid exercise.

This is particularly so when on considers
Post by Guy Stair Sainty
that this "exile" clause is the sole impediment to the lawful
claim of the present Duke of Braganza even under this same
constitution.
Indeed. But it remains an impediment. If the constitution, agreed to
by the then rightful head of house, is not valid, how can any
succession rules be valid? It still seems to me that one has to
accept Miguel as the rightful successor to his father in order to
accept the claims of his descendants.

Pierre Aronax
2003-07-29 13:35:06 UTC
Permalink
"Charles Stewart" <***@yahoo.com> a écrit dans le message de news:
***@posting.google.com...
On a peculiar point.

<...>
For example, Monaco's dynasts forfeit for
themselves and their issue succession rights if they marry without the
prior approval of the Prince. That's not stated in the constitution,
it's in a May 2002 house law unilaterally decreed by the Sovereign.
<...>

Wrong, the Constitution has a provision for that.

Article 10 says that:

"La succession au Trône, ouverte par suite de décès ou d'abdication,
s'opère... (follow the rules of the succession).

Les modalités d'application du présent article sont fixées, en tant que de
besoin, par les statuts de la Famille Souveraine, pris par Ordonnance
Souveraine."

("Modalities of application of the present article are determined, if
needed, by the Housel Law of the Sovereign Family, taken by Ordinance of the
Sovereign").


And Article 46 of the Constitution provides that:

"Sont dispensées de la délibération en Conseil de Gouvernement et de la
présentation par le Ministre d'Etat, les ordonnances souveraines :

- relatives aux statuts de la Famille Souveraine ainsi que celles concernant
ses membres."

So, according to the constitution itself, the modalities of the succession
are to be intended according to the House Law and the Sovereign has the
right to modify the house law by ordinance without any deliberation of the
Council of Government (note: in 2002, the house law was simply modified, a
new house law was not promulgated). Has the Constitution recognizes the
House Law, the House Law recongizes the Constitution and provides that

"The Crown is devolved according to article 10 of the Constitution" ("La
dévolution de la Couronne s'opère conformément aux dispositions de l'article
10 de la Constitution").

Pierre
Charles Stewart
2003-07-29 19:21:19 UTC
Permalink
Post by Pierre Aronax
On a peculiar point.
<...>
For example, Monaco's dynasts forfeit for
themselves and their issue succession rights if they marry without the
prior approval of the Prince. That's not stated in the constitution,
it's in a May 2002 house law unilaterally decreed by the Sovereign.
<...>
Wrong, the Constitution has a provision for that.
Monaco's Constitution has a provision for the Prince to declare
procedures ("modalities")to implement the constitutional succession.
Procedures are not substantive, they are ancillary, and one cannot
change the fundamental principles of succession on procedural grounds
alone. Nor can one adopt any procedures that might alter who actually
succeeds at all if the succession is pre-empted by the constitution's
exclusive jurisdiction. The restriction excluding dynasts from
succession for marrying without Princely permission is a substantive
restriction having enormous potential impact on who succeeds to the
throne very similar to that of the Pragmatica, and yet it is deemed
legal in a modern monarchy without being embodied in its constitution.

Charles Stewart
Pierre Aronax
2003-07-31 20:20:29 UTC
Permalink
Post by Charles Stewart
Post by Pierre Aronax
On a peculiar point.
<...>
For example, Monaco's dynasts forfeit for
themselves and their issue succession rights if they marry without the
prior approval of the Prince. That's not stated in the constitution,
it's in a May 2002 house law unilaterally decreed by the Sovereign.
<...>
Wrong, the Constitution has a provision for that.
Monaco's Constitution has a provision for the Prince to declare
procedures ("modalities")to implement the constitutional succession.
That is not what said the text:

"Les modalités d'application du présent article sont fixées, en tant que de
besoin, par les statuts de la Famille Souveraine, pris par Ordonnance
Souveraine."

Here "modalités" means conditions: "the conditions of application of the
present article are defined, if necessary, by the House Law of the Sovereign
family, promulgated by Sovereign Ordonnance". At the time when the
Constitution was rewritten, there was already an House law, and the rules of
succession as presented in the Constitution must be intended inside the
frame of the House Law, which the Prince can modify by Ordonnance.
Post by Charles Stewart
Procedures are not substantive, they are ancillary, and one cannot
change the fundamental principles of succession on procedural grounds
alone. Nor can one adopt any procedures that might alter who actually
succeeds at all if the succession is pre-empted by the constitution's
exclusive jurisdiction. The restriction excluding dynasts from
succession for marrying without Princely permission is a substantive
restriction having enormous potential impact on who succeeds to the
throne very similar to that of the Pragmatica, and yet it is deemed
legal in a modern monarchy without being embodied in its constitution.
It is embodied in the Constitution by the mention in it that the rules of
succession are intended in conformity with the House Law.

Pierre
Francois R. Velde
2003-07-31 21:02:55 UTC
Permalink
Post by Pierre Aronax
Post by Charles Stewart
Post by Pierre Aronax
On a peculiar point.
<...>
For example, Monaco's dynasts forfeit for
themselves and their issue succession rights if they marry without the
prior approval of the Prince. That's not stated in the constitution,
it's in a May 2002 house law unilaterally decreed by the Sovereign.
<...>
Wrong, the Constitution has a provision for that.
Monaco's Constitution has a provision for the Prince to declare
procedures ("modalities")to implement the constitutional succession.
"Les modalités d'application du présent article sont fixées, en tant que de
besoin, par les statuts de la Famille Souveraine, pris par Ordonnance
Souveraine."
Here "modalités" means conditions: "the conditions of application of the
present article are defined, if necessary, by the House Law of the Sovereign
family, promulgated by Sovereign Ordonnance". At the time when the
Constitution was rewritten, there was already an House law, and the rules of
succession as presented in the Constitution must be intended inside the
frame of the House Law, which the Prince can modify by Ordonnance.
But you have to admit that article 3 of the house law introduces an
element which is completely absent from article 10 of the constitution.
The "modalités d'application" refer to procedural matters, or
definitions of terms that appear in article 10: what does it mean
to renounce, what is the Regency council, etc.

A reader of article 10 of the constitution, provided with all the
relevant facts, ought to be able to determine the successor. Suppose
that Albert renounced the throne today. At the death of Rainier,
that reader would see the clause "Si l'héritier [...] a renoncé
avant l'ouverture de la succession" and, mindful of Albert's renunciation,
would immediately ask if the renunciation was properly executed. He
would then turn to the house laws for the procedural aspects, and would
find article 5 which explains how exactly a renunciation takes place to
be binding.

Suppose Albert married without consent. At the death of Rainier, a
reader of article 10 of the constitution would conclude that Albert
is prince, without any doubt. Nothing in article 10 would suggest
that he needs to look up the house laws, because consent is not
mentioned anywhere.

The house laws themselves are written very strangely, since article 2
states: "La dévolution de la Couronne s'opère conformément aux
dispositions de l'article 10 de la Constitution. L'héritier du Prince
régnant qui est le plus proche dans l'ordre successoral résultant
desdites dispositions est Prince Héréditaire." Again, in my
second scenario, the dispositions of article 10 unambiguously designate
Albert as heir, with or without consent, since they make no mention
of consent being required.
Post by Pierre Aronax
Post by Charles Stewart
Procedures are not substantive, they are ancillary, and one cannot
change the fundamental principles of succession on procedural grounds
alone. Nor can one adopt any procedures that might alter who actually
succeeds at all if the succession is pre-empted by the constitution's
exclusive jurisdiction. The restriction excluding dynasts from
succession for marrying without Princely permission is a substantive
restriction having enormous potential impact on who succeeds to the
throne very similar to that of the Pragmatica, and yet it is deemed
legal in a modern monarchy without being embodied in its constitution.
It is embodied in the Constitution by the mention in it that the rules of
succession are intended in conformity with the House Law.
That's not at all what the constitution says. Quite the reverse: the
house laws state that the rule of succession is defined by the constitution.
The hierarchy is quite clear.
--
François R. Velde
***@nospam.org (replace by "heraldica")
Heraldica Web Site: http://www.heraldica.org/
Pierre Aronax
2003-08-01 09:40:22 UTC
Permalink
In medio alt.talk.royalty aperuit Pierre Aronax
<***@hotmail.com> os suum:

<...>
Post by Pierre Aronax
Post by Charles Stewart
Monaco's Constitution has a provision for the Prince to declare
procedures ("modalities")to implement the constitutional succession.
"Les modalités d'application du présent article sont fixées, en tant que de
besoin, par les statuts de la Famille Souveraine, pris par Ordonnance
Souveraine."
Here "modalités" means conditions: "the conditions of application of the
present article are defined, if necessary, by the House Law of the Sovereign
family, promulgated by Sovereign Ordonnance". At the time when the
Constitution was rewritten, there was already an House law, and the rules of
succession as presented in the Constitution must be intended inside the
frame of the House Law, which the Prince can modify by Ordonnance.
But you have to admit that article 3 of the house law introduces an
element which is completely absent from article 10 of the constitution.
Yes, I admit that.
The "modalités d'application" refer to procedural matters, or
definitions of terms that appear in article 10: what does it mean
to renounce, what is the Regency council, etc.
But which "modalités d'application" the redactors of the Constitution were
expecting from an house law if not definition of membership to the Sovereign
house? If the purpose was only procedural matters, what was the use to bring
into play the house law, why not simply saying something like: "Les
modalités d'application du présent article sont fixées, en tant que de
besoin, par Ordonnance Souveraine."

Nevertheless, admitting that the prince take a little broadly the "modalités
d'application", the fact stays that the Constitution explicitly mentions the
House Law and put its own rules into its frame. The fact stays also that the
Constitution gives power to the prince to change the House Law as he wants
(so that it was not an ukase of Rainier). So, the House Law are in some way
part of the Constitution (when the Pragmatica was not part of the Spanish
constitutions). I fail to see how the Monegasque case is different from the
numerous German monarchies where there is a Constitution which provides that
the succession is to be intended according to the House Law, and then an
House Law which can be more restrictive than the Constitution.
A reader of article 10 of the constitution, provided with all the
relevant facts, ought to be able to determine the successor. Suppose
that Albert renounced the throne today. At the death of Rainier,
that reader would see the clause "Si l'héritier [...] a renoncé
avant l'ouverture de la succession" and, mindful of Albert's renunciation,
would immediately ask if the renunciation was properly executed. He
would then turn to the house laws for the procedural aspects, and would
find article 5 which explains how exactly a renunciation takes place to
be binding.
Suppose Albert married without consent. At the death of Rainier, a
reader of article 10 of the constitution would conclude that Albert
is prince, without any doubt. Nothing in article 10 would suggest
that he needs to look up the house laws, because consent is not
mentioned anywhere.
The house laws themselves are written very strangely, since article 2
states: "La dévolution de la Couronne s'opère conformément aux
dispositions de l'article 10 de la Constitution. L'héritier du Prince
régnant qui est le plus proche dans l'ordre successoral résultant
desdites dispositions est Prince Héréditaire." Again, in my
second scenario, the dispositions of article 10 unambiguously designate
Albert as heir, with or without consent, since they make no mention
of consent being required.
I agree with you that all this was not down properly (rather à la
Monégasque). But nevertheless any reader knows that there are house laws
that must be checked in some case. A reader of the Spanish constitutions has
no way to know that something called the Pragmatica ever existed.
Post by Pierre Aronax
Post by Charles Stewart
Procedures are not substantive, they are ancillary, and one cannot
change the fundamental principles of succession on procedural grounds
alone. Nor can one adopt any procedures that might alter who actually
succeeds at all if the succession is pre-empted by the constitution's
exclusive jurisdiction. The restriction excluding dynasts from
succession for marrying without Princely permission is a substantive
restriction having enormous potential impact on who succeeds to the
throne very similar to that of the Pragmatica, and yet it is deemed
legal in a modern monarchy without being embodied in its constitution.
It is embodied in the Constitution by the mention in it that the rules of
succession are intended in conformity with the House Law.
That's not at all what the constitution says. Quite the reverse: the
house laws state that the rule of succession is defined by the
constitution.
The hierarchy is quite clear.
That is true, I agree with that (= the hierarchy), but the House Law are
nevertheless embodied in the Constitution since it gives a role to it.
Nevertheless, mentioning and giving an "executive" role to the House Laws,
the Constitution opened a door in which the Sovereign Prince engulfed. It is
not impossible that a succession crisis arise some day between an heir
according to the Constitution and an heir according to the House law. As you
said it, the hierarchy is clear and in case of contradiction the
Constitution will probably be above the House law.



Pierre
Guy Stair Sainty
2003-08-01 11:44:12 UTC
Permalink
In article <3f2a358e$0$1120$***@nan-newsreader-03.noos.net>, "Pierre
says...
Post by Pierre Aronax
In medio alt.talk.royalty aperuit Pierre Aronax
I agree with you that all this was not down properly (rather à la
Monégasque). But nevertheless any reader knows that there are house laws
that must be checked in some case. A reader of the Spanish constitutions has
no way to know that something called the Pragmatica ever existed.
Just like the reader of the Austro-Hungarian constitution that
makes no mention of the 1839 house law.

Guy Stair Sainty
www.chivalricorders.org/index3.htm
Pierre Aronax
2003-08-01 12:26:01 UTC
Permalink
Post by Guy Stair Sainty
says...
Post by Pierre Aronax
In medio alt.talk.royalty aperuit Pierre Aronax
I agree with you that all this was not down properly (rather à la
Monégasque). But nevertheless any reader knows that there are house laws
that must be checked in some case. A reader of the Spanish constitutions has
no way to know that something called the Pragmatica ever existed.
Just like the reader of the Austro-Hungarian constitution that
makes no mention of the 1839 house law.
But wasn't this House Law not even published?

And, in any case, would the House Law have been of no effect on the
Hungarian succession (so that a personnal renunciation of Francis-Ferdinand
was needed for this crown)? It would be then logical that the commun
constitution of the double monarchy makes no mention of it.

Pierre
Guy Stair Sainty
2003-08-01 16:12:43 UTC
Permalink
In article <3f2a5c60$0$2537$***@nan-newsreader-03.noos.net>, "Pierre
says...
Post by Pierre Aronax
Post by Guy Stair Sainty
says...
message
Post by Guy Stair Sainty
Post by Pierre Aronax
In medio alt.talk.royalty aperuit Pierre Aronax
I agree with you that all this was not down properly (rather à la
Monégasque). But nevertheless any reader knows that there are house laws
that must be checked in some case. A reader of the Spanish constitutions
has
Post by Guy Stair Sainty
Post by Pierre Aronax
no way to know that something called the Pragmatica ever existed.
Just like the reader of the Austro-Hungarian constitution that
makes no mention of the 1839 house law.
But wasn't this House Law not even published?
And, in any case, would the House Law have been of no effect on the
Hungarian succession (so that a personnal renunciation of Francis-Ferdinand
was needed for this crown)? It would be then logical that the commun
constitution of the double monarchy makes no mention of it.
Pierre
The two Crowns surely had the same system and constitution until
the separation of the Hungarian Crown in the 1860s (? I cannot
remember the date). Does absence of mention of succession laws
mean there are none? Surely not, everyone knew what the succession
laws were even if they did not know the house laws. That is why
the absence of a provision in a constitution relating to the
succession, but which exists in an established law, does not
mean that the law does not apply. Did the House Lawsnot also
apply to Hungary?I am not sure. They speak of succession to
the Erzhaus and the only exceptions are the sovereign branches
of Tuscany and Modena whose sovereigns are delegated the right
to determine the eligibility of spouses. The laws do not exclude
Hungary.

Guy Stair Sainty
www.chivalricorders.org/index3.htm
Pierre Aronax
2003-08-01 16:41:37 UTC
Permalink
Post by Guy Stair Sainty
says...
<...>
Post by Guy Stair Sainty
Post by Pierre Aronax
But wasn't this House Law not even published?
And, in any case, would the House Law have been of no effect on the
Hungarian succession (so that a personnal renunciation of
Francis-Ferdinand
Post by Guy Stair Sainty
Post by Pierre Aronax
was needed for this crown)? It would be then logical that the commun
constitution of the double monarchy makes no mention of it.
Pierre
The two Crowns surely had the same system and constitution until
the separation of the Hungarian Crown in the 1860s (? I cannot
remember the date). Does absence of mention of succession laws
mean there are none?
No, but their presence in a Constitution means that they are not in an other
text.
Post by Guy Stair Sainty
Surely not, everyone knew what the succession
laws were even if they did not know the house laws. That is why
the absence of a provision in a constitution relating to the
succession, but which exists in an established law, does not
mean that the law does not apply.
Except when that law is in contradiction with the rules of succession
carefully detailed in the Constitution, as in the Spanish case (but contrary
to the Austrian case).
Post by Guy Stair Sainty
Did the House Lawsnot also
apply to Hungary?I am not sure.
After the institution of the double monarchy, I think they did not.
Post by Guy Stair Sainty
They speak of succession to
the Erzhaus and the only exceptions are the sovereign branches
of Tuscany and Modena whose sovereigns are delegated the right
to determine the eligibility of spouses. The laws do not exclude
Hungary.
But Hungary had its own monarchical tradition, with which the absolutist
Austrian constitution was perhaps in contradiction, something that the later
institution of the double monarchy seem to have corrected.

Pierre
Guy Stair Sainty
2003-08-02 14:22:01 UTC
Permalink
In article <3f2a9848$0$24854$***@nan-newsreader-02.noos.net>, "Pierre
says...
Post by Pierre Aronax
Post by Guy Stair Sainty
says...
The two Crowns surely had the same system and constitution until
the separation of the Hungarian Crown in the 1860s (? I cannot
remember the date). Does absence of mention of succession laws
mean there are none?
No, but their presence in a Constitution means that they are not in an other
text.
Why does it mean this? Let us say that the Constitution states
merely that the Crown is hereditary in the House of X, without even
specifying by what system (mixed, salic, semi-salic, simple
primogeniture) the Crown is to pass. Does that mean that there
are no rules? And if there are specific rules laid out in
some other law, predating the constitution, which define ths
system that is to be applied, are these to be ignored because
they are not specifically mentioned also in the constitution?
And what if this law is confirmed as valid *after* the promulgation
of the Constitution?
Post by Pierre Aronax
Post by Guy Stair Sainty
Surely not, everyone knew what the succession
laws were even if they did not know the house laws. That is why
the absence of a provision in a constitution relating to the
succession, but which exists in an established law, does not
mean that the law does not apply.
Except when that law is in contradiction with the rules of succession
carefully detailed in the Constitution, as in the Spanish case (but contrary
to the Austrian case).
Are they so carefully detailed? I would suggest that the present
Spanish constitution notably lacks careful details in the matter
of the succession, hence the various discussions here as to what
it does mean. In the previous monarchist constitution, of 1876,
one may also see some evident problems which if the Monarchy had
not fallen in 1931, would have become apparent in 1933-35 had
the events that happened then still occurred. One might have
found then that the Constitution was not clear.

There has been a major debate on the forum of the Corpo della
Nobilta Italiana, Circolo Giovanile, recently over the alleged
validity of the statutes of Victor Amadeus II of 1780 requiring
royal consent for marriages, despite the fact that it was not
specifically mentioned in the Italian constitutions. There have been
several very learned expositions of the legal issues taking the
view that the statute applied auomatically even though Umberto
II did not make any specific declaration regarding it. The almost
unanimous view (I being one of just 2 or 3 dissenters) was that
the statute did apply (I did not dissent from this aspect) and
was automatic in its exclusion (from which I did dissent, as I
considered that it would have required some kind of clear decree
by the King stating that his son was excluded. Almost all the
correspondents, however, who included several lawyers, considered
Victor Emmanuel excluded and the duke of Aosta to have been
Umberto's heir. I argued that no law could apply automatically
to exclude the heir without a specific decree executing the
law. The relevance here is that none considered the law was
invalid because it was not included in the later constitutions.

Guy Stair Sainty
www.chivalricorders.org/index3.htm
Pierre Aronax
2003-08-02 15:45:56 UTC
Permalink
Post by Guy Stair Sainty
says...
Post by Pierre Aronax
Post by Guy Stair Sainty
says...
The two Crowns surely had the same system and constitution until
the separation of the Hungarian Crown in the 1860s (? I cannot
remember the date). Does absence of mention of succession laws
mean there are none?
No, but their presence in a Constitution means that they are not in an other
text.
Why does it mean this? Let us say that the Constitution states
merely that the Crown is hereditary in the House of X, without even
specifying by what system (mixed, salic, semi-salic, simple
primogeniture) the Crown is to pass. Does that mean that there
are no rules?
No but we are not in the case I described (presence of the succession laws
in the Constitution).
Post by Guy Stair Sainty
And if there are specific rules laid out in
some other law, predating the constitution, which define ths
system that is to be applied, are these to be ignored because
they are not specifically mentioned also in the constitution?
No: they have to be ignored if other laws are specifically mentioned into
the constitution, particularly if moreover the said constitution makes no
allusion to this previous law predating the constitution.
Post by Guy Stair Sainty
And what if this law is confirmed as valid *after* the promulgation
of the Constitution?
It depends certainly *for what purpose* the law is confirmed valid after the
promulgation of the Constitution. For example, if the pre-existing law has
also provisions about transmission of names, and if such provisions are
confirmed after the promulgation of the Constitution, it does not imply that
the provision of the Constitution about succession are annulled in favour of
the successorial provision of the pre-existing law. I can admit that a law
can modify the constitution, but it have to do so explicitly.
Post by Guy Stair Sainty
Post by Pierre Aronax
Post by Guy Stair Sainty
Surely not, everyone knew what the succession
laws were even if they did not know the house laws. That is why
the absence of a provision in a constitution relating to the
succession, but which exists in an established law, does not
mean that the law does not apply.
Except when that law is in contradiction with the rules of succession
carefully detailed in the Constitution, as in the Spanish case (but contrary
to the Austrian case).
Are they so carefully detailed? I would suggest that the present
Spanish constitution notably lacks careful details in the matter
of the succession, hence the various discussions here as to what
it does mean.
In the 19th century constitution, yes, they are carefully detailled, which
was the point to know if the successorial provisions of the Pragmatica (IF,
and that is a big if, the Pragmatica has indeed successorial provisions) can
have survived the Constitutional monarchy. I agree that the present
constitution is not so carefully worded (since it is not clear who are
exactly "the successors" - as opposed to the posterity - of John Charles).
But some points are absolutely clear: the king is John-Charles, and it is
from him that the succession has to be determinated; there is no mention of
exclusion for unequal marriage; there is no mention of a previously existing
rule of succession. John Charles is declared "legitimate heir of the
historical dynasty", and so he is by virtu of the Constitution (whatever
being the reality).
Post by Guy Stair Sainty
In the previous monarchist constitution, of 1876,
one may also see some evident problems which if the Monarchy had
not fallen in 1931, would have become apparent in 1933-35 had
the events that happened then still occurred. One might have
found then that the Constitution was not clear.
Can you be more specific, because for my part I find the constitution of
1876 perfectly clear:
"Art. 59. The legitimate king of Spain is Alphonse XII of Bourbon.

Art. 60. Succession to the Spanish throne will follow the regular order of
primogeniture and representation, the older line being always preferred to
the younger, in the same line, the nearest degree to the more distant, in
the same degree, the male to the female, in the same sex, the older to the
younger.

Art. 61. At the extinction of the line of the Don Alphonse XII de Bourbon's
legitimate descendants, will succeed by the established order: his sisters,
his aunt, sister of his mother, and their legitimate descendants, and [the
descendants] of his uncles, brothers of Don Ferdinand VII, if they are not
excluded.

Art. 62. If all the said lines got to be extinguished, the Cortes will make
new choices, as it will be more convenient for the Nation.

Art. 63. Any doubt in fact or in right occurring about the order of
succession to the Crown will be solved by a law.

Art. 64. People who are incapable to govern, or who have committed things
for which they deserve the lose of the right to the Crown will be excluded
of the succession by a law."



(My translation and so my errors. Original text at:
http://www.heraldica.org/topics/royalty/sp_succ.htm#1876

How can one be more explicite? Article 64 in particular exclude explicitely
that anybody who have commited things for which they deserve the lose of his
rights (and that includes certainly marrying a commoner) can be lose them
without a peculiar law specialy made for their individual case. There is no
room here for a sovereign Pragmatica who exclude by its invisible power
everybody who is marrying outside the Gotha.
Post by Guy Stair Sainty
There has been a major debate on the forum of the Corpo della
Nobilta Italiana, Circolo Giovanile, recently over the alleged
validity of the statutes of Victor Amadeus II of 1780 requiring
royal consent for marriages, despite the fact that it was not
specifically mentioned in the Italian constitutions.
<...>

But the Italian Constitution (which is here the 1848 Statuto Albertino,
hence the Constitution of Sardinia) makes almost no mention at all of the
Succession, as François Velde has pointed to me some time ago. It only says
in a poorly worded end of article that "the throne is hereditary according
to the Salic Law", which leaves some room for the interpretation (what is
Salic Law, how does it apply etc.). Nothing to do with the maniac details on
the succession in the 1876 Spanish Constitution.

Nota Bene: this must not be taken as a declaration from my part that I
believe that the statutes of Victor Amadeus II is still in force or that I
have any other opinion on the subject except what I have said: there is room
here for discussion. There is not with the 1876 Spanish Constitution. The
two cases are absolutely different.

Pierre
Guy Stair Sainty
2003-08-02 21:01:36 UTC
Permalink
In article <3f2bdcba$0$12957$***@nan-newsreader-01.noos.net>, "Pierre
says...
Post by Guy Stair Sainty
Post by Guy Stair Sainty
says...
"Pierre
Post by Guy Stair Sainty
Post by Pierre Aronax
Post by Guy Stair Sainty
says...
The two Crowns surely had the same system and constitution until
the separation of the Hungarian Crown in the 1860s (? I cannot
remember the date). Does absence of mention of succession laws
mean there are none?
No, but their presence in a Constitution means that they are not in an
other
Post by Guy Stair Sainty
Post by Pierre Aronax
text.
Why does it mean this? Let us say that the Constitution states
merely that the Crown is hereditary in the House of X, without even
specifying by what system (mixed, salic, semi-salic, simple
primogeniture) the Crown is to pass. Does that mean that there
are no rules?
No but we are not in the case I described (presence of the succession laws
in the Constitution).
Post by Guy Stair Sainty
And if there are specific rules laid out in
some other law, predating the constitution, which define ths
system that is to be applied, are these to be ignored because
they are not specifically mentioned also in the constitution?
No: they have to be ignored if other laws are specifically mentioned into
the constitution, particularly if moreover the said constitution makes no
allusion to this previous law predating the constitution.
That is certainly probably in line with present constitutional
law, but was it the same for 19th century Monarchies with long
standing traditions that were considered by all to be fundamental?
I do not believe that one can assert this - Spain today has a
constitutional court, for example, but in the 19th century
no such body existed. It is clear from actions and statements
by the government that successive Spanish governments and
sovereigns did not share your 21st century view of this.
Post by Guy Stair Sainty
Post by Guy Stair Sainty
Post by Pierre Aronax
Post by Guy Stair Sainty
Surely not, everyone knew what the succession
laws were even if they did not know the house laws. That is why
the absence of a provision in a constitution relating to the
succession, but which exists in an established law, does not
mean that the law does not apply.
Except when that law is in contradiction with the rules of succession
carefully detailed in the Constitution, as in the Spanish case (but
contrary
Post by Guy Stair Sainty
Post by Pierre Aronax
to the Austrian case).
I disagree that the law was in "contradiction". Merely because
the constitution required that the King and Heir receive formal
permission from the Cortes to marry, for example, does not
preclude the Sovereign from enjoying authority over marriages.
Post by Guy Stair Sainty
Post by Guy Stair Sainty
Are they so carefully detailed? I would suggest that the present
Spanish constitution notably lacks careful details in the matter
of the succession, hence the various discussions here as to what
it does mean.
In the 19th century constitution, yes, they are carefully detailled, which
was the point to know if the successorial provisions of the Pragmatica (IF,
and that is a big if, the Pragmatica has indeed successorial provisions) can
have survived the Constitutional monarchy. I agree that the present
constitution is not so carefully worded (since it is not clear who are
exactly "the successors" - as opposed to the posterity - of John Charles).
But some points are absolutely clear: the king is John-Charles, and it is
from him that the succession has to be determinated; there is no mention of
exclusion for unequal marriage; there is no mention of a previously existing
rule of succession. John Charles is declared "legitimate heir of the
historical dynasty", and so he is by virtu of the Constitution (whatever
being the reality).
Post by Guy Stair Sainty
In the previous monarchist constitution, of 1876,
one may also see some evident problems which if the Monarchy had
not fallen in 1931, would have become apparent in 1933-35 had
the events that happened then still occurred. One might have
found then that the Constitution was not clear.
Can you be more specific, because for my part I find the constitution of
"Art. 59. The legitimate king of Spain is Alphonse XII of Bourbon.
Art. 60. Succession to the Spanish throne will follow the regular order of
primogeniture and representation, the older line being always preferred to
the younger, in the same line, the nearest degree to the more distant, in
the same degree, the male to the female, in the same sex, the older to the
younger.
Art. 61. At the extinction of the line of the Don Alphonse XII de Bourbon's
legitimate descendants, will succeed by the established order: his sisters,
his aunt, sister of his mother, and their legitimate descendants, and [the
descendants] of his uncles, brothers of Don Ferdinand VII, if they are not
excluded.
Art. 62. If all the said lines got to be extinguished, the Cortes will make
new choices, as it will be more convenient for the Nation.
Art. 63. Any doubt in fact or in right occurring about the order of
succession to the Crown will be solved by a law.
Art. 64. People who are incapable to govern, or who have committed things
for which they deserve the lose of the right to the Crown will be excluded
of the succession by a law."
Not so clear; article 61 ends "if they are not excluded", but does
not say who is excluded. This same phrase is used in the
constitutions of 1837 and 1845, but in none of these cases does
it specify who is excluded or how they were excluded. One might
consider that this would each time require a new law of exclusion
(this of course refers to the descendants of Don Carlos). Yet
this did not happen and this clause does not once refer to
the specific law which excluded Don Carlos - yet we, like those
at the time, know precisely to whom this is referring. One
sees in these clauses also the reference to "legitimate descendants".
This presumably means legitimate in Spanish law, and this would
of course have entitled such a person to the paternal name. Carlos
III knew that he did not have the power to make marriages null,
but what exactly did he intend by depriving the descendants of
morganatis marriages of the royal family name, to suggest that
they were something less than "legitimate" descendants, or might
this not have been how the framers of these constitutions understood
the phrase.

These Constitutions were not drawn up by bodies hostile to the
sovereign or his or her authority; they would have know full well
Carlos III's intentions and that when future sovereigns refused
to recognize a marriage that they considered the descendants
outside the royal family and without dynastic rights. Do you
really consider that they enacted these constitutions in this
way with the intention of overriding the royal family in this
regard? Why, when they were willing to pass a decree in execution
of the requirements of the pragmatic to exclude a dynast (Infante
Enrique, for example, in 1838)? How is that successive Kings
can have remained in ignorance of this for a century, and
considered that the pragmatic did exclude such descendants?

Guy Stair Sainty
www.chivalricorders.org/index3.htm
Francois R. Velde
2003-08-02 22:02:11 UTC
Permalink
Post by Guy Stair Sainty
Post by Pierre Aronax
Art. 61. At the extinction of the line of the Don Alphonse XII de Bourbon's
legitimate descendants, will succeed by the established order: his sisters,
his aunt, sister of his mother, and their legitimate descendants, and [the
descendants] of his uncles, brothers of Don Ferdinand VII, if they are not
excluded.
Art. 62. If all the said lines got to be extinguished, the Cortes will make
new choices, as it will be more convenient for the Nation.
Art. 63. Any doubt in fact or in right occurring about the order of
succession to the Crown will be solved by a law.
Art. 64. People who are incapable to govern, or who have committed things
for which they deserve the lose of the right to the Crown will be excluded
of the succession by a law."
Not so clear; article 61 ends "if they are not excluded", but does
not say who is excluded.
It can't. People could be excluded in the future: how could they be named in
advance?
Post by Guy Stair Sainty
This same phrase is used in the
constitutions of 1837 and 1845, but in none of these cases does
it specify who is excluded or how they were excluded.
It says how they are excluded: see article 64 (54 of the 1837 and 1845
constitutions). By a law of the Cortes. And, I might add, no other means are
provided.
Post by Guy Stair Sainty
One might
consider that this would each time require a new law of exclusion
(this of course refers to the descendants of Don Carlos). Yet
this did not happen and this clause does not once refer to
the specific law which excluded Don Carlos - yet we, like those
at the time, know precisely to whom this is referring.
There are at least two laws excluding Don Carlos, one dating from 1834 and
another from 1837. There may well be another one later, but that is not
necessary: there was a law of the Cortes on the books excluding Don Carlos and
his issue. That satisfied the requirements of article 54.
Post by Guy Stair Sainty
Why, when they were willing to pass a decree in execution
of the requirements of the pragmatic to exclude a dynast (Infante
Enrique, for example, in 1838)?
You mean 1848, and you are incorrect. Read the text of the decree, and you will
see that not only does it *not* exclude Infante Enrique from the succession, but
in fact refers the matter of the succession to the Cortes (in full accordance
with the Constitution):

"Art. 1o. Don Enrique María de Borbón queda destituido de los honores y
consideraciones de infante de España que le concedió mi Augusto Padre, y de
todos los demas grados, empleos, honores y condecoracíones que disfrute.

Art. 2o. Los documentos que dan motivo á esta resolucion pasarán al Tribunal
Supremo de Justicia para los efectos que correspondan con arreglo á las leyes.

Art. 3o. De este decreto y de las causas que lo producen, se dará cuneta á las
Cortes en su primera legislatura, para que acuerden lo que estimen conveniente
en cuanto dice relacion con la sucesion á la Corona."
Post by Guy Stair Sainty
How is that successive Kings
can have remained in ignorance of this for a century, and
considered that the pragmatic did exclude such descendants?
It's not clear at all they did. If Isabel II did, then how in the world does
one explain article 3 of the decree of 12 May 1848, and the identical wording in
the decree of 28 Jun 1848 concerning Doña Josefa Fernanda Luisa de Borbón?

These clauses make no sense if one believes that under the Pragmatica an unequal
marriage excluded dynasts ipso facto; it makes complete sense if one takes the
simple and litteral interpretation of the Pragmatica (which makes no mention of
the crown) and of the constitution in force at the time.
--
François Velde
***@nospam.org (replace by "heraldica")
Heraldry Site: http://www.heraldica.org/
Guy Stair Sainty
2003-08-03 19:20:32 UTC
Permalink
Post by Francois R. Velde
Post by Guy Stair Sainty
Why, when they were willing to pass a decree in execution
of the requirements of the pragmatic to exclude a dynast (Infante
Enrique, for example, in 1838)?
You mean 1848, and you are incorrect. Read the text of the decree, and you will
see that not only does it *not* exclude Infante Enrique from the succession, but
in fact refers the matter of the succession to the Cortes (in full accordance
"Art. 1o. Don Enrique María de Borbón queda destituido de los honores y
consideraciones de infante de España que le concedió mi Augusto Padre, y de
todos los demas grados, empleos, honores y condecoracíones que disfrute.
Art. 2o. Los documentos que dan motivo á esta resolucion pasarán al Tribunal
Supremo de Justicia para los efectos que correspondan con arreglo á las leyes.
Art. 3o. De este decreto y de las causas que lo producen, se dará cuneta á las
Cortes en su primera legislatura, para que acuerden lo que estimen conveniente
en cuanto dice relacion con la sucesion á la Corona."
Post by Guy Stair Sainty
How is that successive Kings
can have remained in ignorance of this for a century, and
considered that the pragmatic did exclude such descendants?
It's not clear at all they did. If Isabel II did, then how in the world does
one explain article 3 of the decree of 12 May 1848, and the identical wording in
the decree of 28 Jun 1848 concerning Doña Josefa Fernanda Luisa de Borbón?
These clauses make no sense if one believes that under the Pragmatica an unequal
marriage excluded dynasts ipso facto; it makes complete sense if one takes the
simple and litteral interpretation of the Pragmatica (which makes no mention of
the crown) and of the constitution in force at the time.
Because these laws excluded the dynast themselves, whereas the
pragmatic only excluded descendants (according to the usual
interpretation). The problem with Infanta
Josefa Fernanda was that the marriage had been approved, in that
she asked an eceived permission and she was not
punished further. Her sisters, on the other hand, who were not
the subject of a specific law of deprivation, but whose marriages
were to men muchlower down the social scale, were simply exiled from the family
and by the then interpretation of the pragmatic, lost their
rights for not even asking permission. This was the premise
for the actual deprivation of Infante Enrique (in 1848 as you say,
I woke up in the night and realized I had written this wrong -
too much talk about Portugal).

Guy Stair Sainty
www.chivalricorders.org/index3.htm
Guy Stair Sainty
2003-08-03 19:27:35 UTC
Permalink
In article <3f2c34f4$0$15864$***@nan-newsreader-01.noos.net>, "Pierre
says...
Post by Guy Stair Sainty
says...
I disagree that the law was in "contradiction". Merely because
the constitution required that the King and Heir receive formal
permission from the Cortes to marry, for example, does not
preclude the Sovereign from enjoying authority over marriages.
The Constitution is extremely meticulous in its wording. It happened that it
never came in contradiction with what would have been the order of
succession according to the Pragmatica if the Pragmatica was indeed a law of
succession (which, as we know, is questionable). But it could have come in
contradiction with it: for example, if Alphonse XII, his sisters and his
aunt had all died without posterity, the crown was to go to his uncle the
Duke of Sevilla, whose posterity was "excluded" by the Pragmatica, but not
"by a law" as required by the Constitution. What would have happen then? You
can claim, with some good reason I think, that most people will have refuse
to accept that, because, as you said, most people didn't really know what
were the actual rules of succession, but, at the least, there would have
been "a doubt about the order of succession". And even for that there is
provision in the Constitution, which is indeed extremely detailed and leaves
very little to interpretation: according to article 64, any doubt has to be
resolved by a law. So, without a specific law, the Sevillas would certainly
not have been barred to succeed. One, like Charles Stewart, can claim that
this law would have actualised what many people thought that would have had
to be the effect of the Pragmatica, but nevertheless in fact and in right
the pragmatica will have played no part in this exclusion. But that does not
happen, since there was never any doubt on the succession until the end of
the monarchy, and at that time there was no more Cortes to take a law to
exclude anybody.
If Luisa Fernanda had died without descendants and all Isabel II's
descendants likewise, then the succession might have depended on
the date at which this happened - Infante Enrique was actually
restored to his titles and then deprived again. Francois has
pointed out that the decree of deprivation refererd the matter
of succession rights for himself to the Cortes for a special
law and this law was never passed. My interpretation of the
Pragmatic is that it is actually not effective to deprive the
dynast nor was it intended to do so, if the dynast asked
permission (as the first object of the law, Infante Luis Antonio,
did of his brother Carlos III). The Infante Enrique, who was
married in Rome by Pius IX, did not ask permission but for
reasons that I cannot recall there were still questions over
whether he had doneso without authorization and this was later
part of the premise for his case. The issue in the case of
the sudden lack of heirs would, I think, have meant that he
woudl be king but not his descendants.
Post by Guy Stair Sainty
Post by Pierre Aronax
Post by Guy Stair Sainty
Are they so carefully detailed? I would suggest that the present
Spanish constitution notably lacks careful details in the matter
of the succession, hence the various discussions here as to what
it does mean.
In the 19th century constitution, yes, they are carefully detailled,
which
Post by Guy Stair Sainty
Post by Pierre Aronax
was the point to know if the successorial provisions of the Pragmatica
(IF,
Post by Guy Stair Sainty
Post by Pierre Aronax
and that is a big if, the Pragmatica has indeed successorial provisions)
can
Post by Guy Stair Sainty
Post by Pierre Aronax
have survived the Constitutional monarchy. I agree that the present
constitution is not so carefully worded (since it is not clear who are
exactly "the successors" - as opposed to the posterity - of John
Charles).
Post by Guy Stair Sainty
Post by Pierre Aronax
But some points are absolutely clear: the king is John-Charles, and it is
from him that the succession has to be determinated; there is no mention
of
Post by Guy Stair Sainty
Post by Pierre Aronax
exclusion for unequal marriage; there is no mention of a previously
existing
Post by Guy Stair Sainty
Post by Pierre Aronax
rule of succession. John Charles is declared "legitimate heir of the
historical dynasty", and so he is by virtu of the Constitution (whatever
being the reality).
Post by Guy Stair Sainty
In the previous monarchist constitution, of 1876,
one may also see some evident problems which if the Monarchy had
not fallen in 1931, would have become apparent in 1933-35 had
the events that happened then still occurred. One might have
found then that the Constitution was not clear.
Can you be more specific, because for my part I find the constitution of
"Art. 59. The legitimate king of Spain is Alphonse XII of Bourbon.
Art. 60. Succession to the Spanish throne will follow the regular order
of
Post by Guy Stair Sainty
Post by Pierre Aronax
primogeniture and representation, the older line being always preferred
to
Post by Guy Stair Sainty
Post by Pierre Aronax
the younger, in the same line, the nearest degree to the more distant, in
the same degree, the male to the female, in the same sex, the older to
the
Post by Guy Stair Sainty
Post by Pierre Aronax
younger.
Art. 61. At the extinction of the line of the Don Alphonse XII de
Bourbon's
Post by Guy Stair Sainty
Post by Pierre Aronax
legitimate descendants, will succeed by the established order: his
sisters,
Post by Guy Stair Sainty
Post by Pierre Aronax
his aunt, sister of his mother, and their legitimate descendants, and
[the
Post by Guy Stair Sainty
Post by Pierre Aronax
descendants] of his uncles, brothers of Don Ferdinand VII, if they are
not
Post by Guy Stair Sainty
Post by Pierre Aronax
excluded.
Art. 62. If all the said lines got to be extinguished, the Cortes will
make
Post by Guy Stair Sainty
Post by Pierre Aronax
new choices, as it will be more convenient for the Nation.
Art. 63. Any doubt in fact or in right occurring about the order of
succession to the Crown will be solved by a law.
Art. 64. People who are incapable to govern, or who have committed things
for which they deserve the lose of the right to the Crown will be
excluded
Post by Guy Stair Sainty
Post by Pierre Aronax
of the succession by a law."
Not so clear; article 61 ends "if they are not excluded", but does
not say who is excluded.
Yes, but article 64 says that people who have to be excluded for physical or
political reason are excluded by a law.
Post by Guy Stair Sainty
This same phrase is used in the
constitutions of 1837 and 1845, but in none of these cases does
it specify who is excluded or how they were excluded.
That is not true for the 1878 Constitution: article 64 says specificaly who
can be excluded and how.
Post by Guy Stair Sainty
One might
consider that this would each time require a new law of exclusion
Yes.
Post by Guy Stair Sainty
(this of course refers to the descendants of Don Carlos). Yet
this did not happen and this clause does not once refer to
the specific law which excluded Don Carlos
No need to do so: article 64 says that those who are excluded are excluded
by an individual law. If there was a law excluding Don Carlos, no need to
make specific reference to him, his case was covered by the general wording
of article 64.
Post by Guy Stair Sainty
- yet we, like those
at the time, know precisely to whom this is referring. One
sees in these clauses also the reference to "legitimate descendants".
This presumably means legitimate in Spanish law, and this would
of course have entitled such a person to the paternal name. Carlos
III knew that he did not have the power to make marriages null,
but what exactly did he intend by depriving the descendants of
morganatis marriages of the royal family name, to suggest that
they were something less than "legitimate" descendants, or might
this not have been how the framers of these constitutions understood
the phrase.
I don't think that "legitimate descendants" in constitutional Spain can mean
something else than "legitimate descendants" according to Spanish law. For
example, if the Sevillas were not illegitimate according to Spanish law of
the time (and obviously they were not), then I don't see how they can be
excluded by a so general provision which makes no reference to the
Pragmatica.
Post by Guy Stair Sainty
These Constitutions were not drawn up by bodies hostile to the
sovereign or his or her authority; they would have know full well
Carlos III's intentions and that when future sovereigns refused
to recognize a marriage that they considered the descendants
outside the royal family and without dynastic rights. Do you
really consider that they enacted these constitutions in this
way with the intention of overriding the royal family in this
regard?
No, but I think they worded then to be the Constitution of a constitutional
country, and not of an absolute monarchy where the king has all powers on
the succession: Spain is not Russia. It seems also clear form the
meticulousness of the text about succession that the writers intended to
keep a full control of the succession to the Cortes. So, it seems perfectly
logical that, if somebody has to be excluded (for example for a
dishonourable marriage), then he was excluded by a law of the Cortes, and
not simply be the refusal of his consent by the king. At least, that is what
says the Constitution.
Post by Guy Stair Sainty
Why, when they were willing to pass a decree in execution
of the requirements of the pragmatic to exclude a dynast (Infante
Enrique, for example, in 1838)? How is that successive Kings
can have remained in ignorance of this for a century, and
considered that the pragmatic did exclude such descendants?
Perhaps because the problem never happen: nobody who would have been
excluded by the Pragmatica was never the potential heir or even close to
that. And kings sometimes have illusions on their own powers.
Pierre
Guy Stair Sainty
www.chivalricorders.org/index3.htm
Francois R. Velde
2003-08-01 18:19:57 UTC
Permalink
Post by Guy Stair Sainty
The two Crowns surely had the same system and constitution until
the separation of the Hungarian Crown in the 1860s (? I cannot
remember the date). Does absence of mention of succession laws
mean there are none? Surely not, everyone knew what the succession
laws were even if they did not know the house laws. That is why
the absence of a provision in a constitution relating to the
succession, but which exists in an established law, does not
mean that the law does not apply.
The Austrian case cannot provide a parallel to the Spanish case.
First, there was no (written) constitution before 1867, except
very briefly and tenuously in 1849. Second, the constitution
of 1867 did not even bother to mention what the law of succession
was. Therefore, even in the constitutional monarchy, one *has*
to go to extra-constitutional texts. This is very different
from the Spanish situation, where Spain is a constitutional
monarchy, and every single constitution lays out in very clear
and specific terms what the rule of succession is, failing each
time to make any mention of the pre-existing pragmatica of 1776.

Also, the house law of 1839 does not really deal with the succession;
in fact, in the preamble Ferdinand I explains that "the ordinances made
by his predecessors and elevated to the status of unalterable fundamental
laws have established beyond the slightest doubt and imprecision the
hereditary and impartible nature of the monarchy as well as the
order of succession to the throne" and that he is concerned with
"the rights and duties of the head of house and the individual
members of the house in their reciprocal relations"; he is also
only claiming to "bring together in a family law the existing
customs and individual decisions in family matters", that is,
codifying existing law.
Post by Guy Stair Sainty
Did the House Lawsnot also
apply to Hungary?I am not sure. They speak of succession to
the Erzhaus and the only exceptions are the sovereign branches
of Tuscany and Modena whose sovereigns are delegated the right
to determine the eligibility of spouses. The laws do not exclude
Hungary.
Their applicability to Bohemia has been discussed here before:
http://groups.google.com/groups?selm=d0ef514b.0208220341.4d7e2c6a%40posting.google.com
--
François R. Velde
***@nospam.org (replace by "heraldica")
Heraldica Web Site: http://www.heraldica.org/
Pierre Aronax
2003-08-01 18:25:03 UTC
Permalink
"Francois R. Velde" <***@heraldicaNOTSPAM.invalid> a écrit dans le message
de news: bgeb0d$9bt$***@e250.ripco.com...

<...>
http://groups.google.com/groups?selm=d0ef514b.0208220341.4d7e2c6a%40posting.
google.com

Since this morning, I can not access to the archives: I found an absurde
page which pretends that access is forbiden, and which looks like the work
of some hacker. Does anybody have the same problem?

Pierre
jlk7e
2003-08-02 00:40:18 UTC
Permalink
Post by Francois R. Velde
<...>
http://groups.google.com/groups?selm=d0ef514b.0208220341.4d7e2c6a%40posting.
google.com
Since this morning, I can not access to the archives: I found an absurde
page which pretends that access is forbiden, and which looks like the work
of some hacker. Does anybody have the same problem?
Pierre
I always access the group from google, and I've had no problems.
Pierre Aronax
2003-08-02 21:08:56 UTC
Permalink
<...>
Post by jlk7e
Post by Pierre Aronax
Since this morning, I can not access to the archives: I found an absurde
page which pretends that access is forbiden, and which looks like the work
of some hacker. Does anybody have the same problem?
Pierre
I always access the group from google, and I've had no problems.
I still can not today!
edespalais
2003-08-02 21:36:41 UTC
Permalink
Why not? The Google are after all (olim) Monaco. How about Stéphanie G, olim
M?
Post by Pierre Aronax
<...>
Post by jlk7e
Post by Pierre Aronax
Since this morning, I can not access to the archives: I found an absurde
page which pretends that access is forbiden, and which looks like the
work
Post by jlk7e
Post by Pierre Aronax
of some hacker. Does anybody have the same problem?
Pierre
I always access the group from google, and I've had no problems.
I still can not today!
jlk7e
2003-08-01 22:31:34 UTC
Permalink
Post by Guy Stair Sainty
The two Crowns surely had the same system and constitution until
the separation of the Hungarian Crown in the 1860s (? I cannot
remember the date). Does absence of mention of succession laws
mean there are none? Surely not, everyone knew what the succession
laws were even if they did not know the house laws. That is why
the absence of a provision in a constitution relating to the
succession, but which exists in an established law, does not
mean that the law does not apply. Did the House Lawsnot also
apply to Hungary?I am not sure.
At what point did Hungary's monarchy cease to be elective? I seem to
recall that the diet had to elect Maria Theresa in the 18th century.
Francois R. Velde
2003-08-01 12:27:59 UTC
Permalink
Post by Guy Stair Sainty
Just like the reader of the Austro-Hungarian constitution that
makes no mention of the 1839 house law.
But it doesn't make mention of any succession rules anyway.
--
François Velde
***@nospam.org (replace by "heraldica")
Heraldry Site: http://www.heraldica.org/
Francois R. Velde
2003-08-01 12:26:54 UTC
Permalink
Post by Pierre Aronax
Nevertheless, admitting that the prince take a little broadly the "modalités
d'application", the fact stays that the Constitution explicitly mentions the
House Law and put its own rules into its frame. The fact stays also that the
Constitution gives power to the prince to change the House Law as he wants
(so that it was not an ukase of Rainier). So, the House Law are in some way
part of the Constitution (when the Pragmatica was not part of the Spanish
constitutions). I fail to see how the Monegasque case is different from the
numerous German monarchies where there is a Constitution which provides that
the succession is to be intended according to the House Law, and then an
House Law which can be more restrictive than the Constitution.
It's much less different from the German cases than it is from the Spanish case,
where, as you say, no constitution ever mentioned the pragmatica (and on this,
the major point, I agree with you). It is nonetheless of dubious legality,
because in the German cases it is quite clear what role the house law plays: it
essentially defines terms (such as equal marriage, consent of head of house,
royal family) that are used in the constitution but undefined by it. The
Monegasque house law seems to go ultra vires (though I should note that the
provision about consent of head of house, and loss of succession rights without
it, has always been there, even before 2002). I don't think we disagree very
much.
--
François Velde
***@nospam.org (replace by "heraldica")
Heraldry Site: http://www.heraldica.org/
Pierre Aronax
2003-08-01 12:36:42 UTC
Permalink
"Francois R. Velde" <***@heraldicanospam.invalid> a écrit dans le message
de news: ***@4ax.com...

<...>
Post by Francois R. Velde
It's much less different from the German cases than it is from the Spanish case,
where, as you say, no constitution ever mentioned the pragmatica (and on this,
the major point, I agree with you). It is nonetheless of dubious legality,
because in the German cases it is quite clear what role the house law plays: it
essentially defines terms (such as equal marriage, consent of head of house,
royal family) that are used in the constitution but undefined by it. The
Monegasque house law seems to go ultra vires (though I should note that the
provision about consent of head of house, and loss of succession rights without
it, has always been there, even before 2002).
So, the redactors of the Constitution knew what they risked when they
mentionned the House Law. What I don't understand then is why they did not
mouled the succession rules in the Constitution on the rules of the House
Law.
Post by Francois R. Velde
I don't think we disagree very
much.
I don't think we do, since, if the Monegasque house law are indeed an abuse
of power, it is not a good example of modification of the rules outside the
legislative or constitutional process.

Pierre
Pierre Aronax
2003-07-29 13:36:09 UTC
Permalink
For convenience, I answer in two different messages.

<...>
Post by Pierre Aronax
But that is not the problem here. The fact
is that many evidences tend to proove that the Pragmatica has no
constitutional effects. You claim that it has nevertheless some legal
effects on the succession.
No, I don't. Once again, your misconstruals are beginning to look more
and more intentional.
As your personal attacks. Didn't you claim that the Pragmatica has effect on
the succession? I said "In you analogy, the pragmatic sanction, which never
actually ruled the Spanish succession", and immediately you protested saying
"In your opinion. Others disagree, and it was to them I referred". If you
disagree with the fact that "the pragmatica never actually ruled the Spanish
succession", one can assume that it is because you think that you claim that
the pragmatica has some legal effects on the succession. So, I objected and
ask you to "give us a single example where the succession was actually ruled
according to the pragmatic sanction". Instead of answering, you declared
that my question was "a ruse" (but not claiming at that point that I have
"misconstrued" your opinion). So I recall you that your declarations about
my supposed "ruse" was not the problem and that the question was the
constitutional effects of the Pragmatica, since "You claim that it has
nevertheless some legal effects on the succession". And then you protested
again, claiming that my presentation of your subtle position was one of my
"misconstruals".

So, I really wonder: if you agree that the Pragmatica has no constitutional
effects, then why are we discussing since I don't know how long, because I
say no more than that here. And if you disagree, then why are you protesting
against my "misconstruals" so vigorously when I say that "you claim that it
has nevertheless some legal effects on the succession"?

I am sorry if I have made a travesty of your ingenious thoughts, but perhaps
if you express them more clearly, they will be better understood by simple
people like me: I still fail to understand how somebody can not think that
the Pragmatica has legal effects without thinking that it has no legal
effects.
Post by Pierre Aronax
Post by Pierre Aronax
was actualy ruled according to the pragmatic sanction
If you can't build your case based upon what I
actually say, please don't assume that I sit here blind while you
re-fashion my words into strawmen.
Have you nothing more to say than to always complain that your great
philosophy is misinterpreted by Philistines? Whenever an objection is
opposed to your judgements, your only answer is to say: "That is not what I
have said". If really what you have said has been misunderstood, it would be
more useful to rephrase it in a more understandable way than to attack your
contradictors. Except of course if it is "a ruse".
Post by Pierre Aronax
To sustain that claim against the evidences, you
need at least one example, if not more than one.
There is no evidence that the Pragmatica had no legal effect,
Since the Pragmatica was not a constitutional text, what we need is a proof
that it has legal effect. No proof that it has no legal effect is needed,
even if there are some good evidences that it has not. For example, the fact
that all exclusions of the succession for question of marriage during the
Constitutional monarchy were returned to a decision of the legal authorities
is a good evidence that the Pragmatica has no legal effect by itself at that
time.
and
there is evidence that it had some effect.
Which ones?
I posted the particulars on
Royaute some time ago
Can you repost it please?
when you denied that unequal marriages ever
resulted in loss of dynastic surname.
I deny that unequal marriages have any effect on the loss of surname
("dynastic" as no sense here) in Constitutional Spain, as is obvious by the
fact that otherwise almost all the Spanish nobility will have lost his
surnames according to the prescriptions of the Pragmatica, for all unequal
marriages that have happened during the last two centuries. Are you still
claiming that the Duke of Anjou has no right to the name of Bourbon
according to the laws and practice of Constitutional claim?
Post by Pierre Aronax
If a precedent
is found, it is dismissed on the grounds that it has only been applied
once and it is possible to contemplate a thousand alternative
interpretations of the rule's application (e.g. French king's
authority over dynasts' marriages).
The example is ambiguous.
Examples always are when they tend to prove what one does not wish to
concede.
I disagree. Some examples are not ambiguous. The example you mentionned, the
marriage of Gaston of Orléans, is ambiguous because its unvalidity is not
sure, neither on a canonical nor on a dynastical point of view. Even if it
was unvalid, the causes of its unvalidity are equaly ambiguous (would it be
the simple fact that it was made without King's permission that make it
invalid, or the specifical ruling of an ad hoc assembly?).
Nonetheless, given the enormous amount of power that was
successfully applied (edicts adopted by both the Parlement of Paris
and the Church of France)
Rather the Assembly of the Clergy of France.
to ensure that the King's authority in the
matter of marriages of his family was vindicated, it is truly
astonishing that you say the outcome was ambiguous.
The edicts, even if based, as always, about general considerations, where ad
hoc decisions, relating only to the marriage of Gaston: you seem to say that
there was an edict of the Parlement and an other of the Church giving to the
king a new power on his family's marriages. The wording of the decisions was
indeed ambiguous. The Parliament only ruled that the marriage was a forced
marriage, and so invalid. The answer of the Clergy of France was not to know
if a prince's marriage need the approval of the King, but if a marriage
contracted against his formal prohibition was valid or not: that is not
exactly the same thing. Anyway, it was only that: a juridical consultation
(an "avis" = an oppinion). It has no legislative value, since the clergy of
France has no legislative power.
Post by Pierre Aronax
Post by Pierre Aronax
Post by jlk7e
How many opportunities did it have to be so ruled? That's like saying
that the provision for papists and those married to them to be
excluded from the British throne is invalid because it's never been
applied.
No, because the text you mentioned is undoubtfully a constitutional
text,
Why constitutional and not merely statutory?
Past by the Parliament and ruling the succession.
All that proves is that it was a law.
Indeed. Law intended to be part of the consitutional process, since Britain
has no written Constitution.
In 1776 Spain, whether the King
had the authority to unilaterally exclude dynasts from the succession
that married without his authorization may have been a constitutional
issue, but it is not clear that the restriction itself was of
constitutional import.
It is debatable, but anyway we are discussing of the effects of the
Pragmatica in Constitutional Spain.

<Off topic Monegasc example snipped and answered in an other message>
Post by Pierre Aronax
In fact, several constitutional Spanish
governments affirmed the applicability of the Pragmatica into the 20th
century and I have not heard that any Spanish official or jurist
considered it inapplicable under the monarchy.
So, why were title of nobilities transmitted to sons and daughters of
"unequal" marriages during a good part of the 19th century and all the 20th
century, and that despite the Pragmatica?
For the same reason most people who cross the street on a red light
don't get citations: inadequate enforcement. But if you get stopped
for jaywalking, try telling the cop that he has no right to give you a
ticket because most jaywalkers get away with it.
I think this analogy makes little sense but if, since more than a century,
nobody has been given any ticket for this infraction, the rule would
certainly be considered obsolete, and the cop who will try to enforce it
upon a single individual would have to face serious challenge.
Post by Pierre Aronax
He has shown that, in all the case of unequal mariage where the question of
the succession arose, it was settled or has to be settled by a distinct act
of legislature. So that it is clear that the Pragmatica was not enough by
itself to exclude anybody from the succession.
No, I don't think Francois claims to have shown this. He has pointed
out that a test case never arose, so that the popular assumption that
the Pragmatica would have excluded a violator from the throne was
never put to the test.
IIRC he also produced documents where "excluded" infantes recognized the
lose of their titles, but for what is of the succession send back the mesure
of exclusion to be taken to a special decree or legislation.
IIRC, he has also identified one case in which
the succession rights of an infanta were referred to the Cortes when
she violated the decree.
But the Spanish Borbon males nearly all eventually married unequally.
Their descendants were treated as non-dynasts at court, but most were
not denied the Borbon arms or surname (yet some were, and specific
decrees from the King were required to undo the legal effects of the
Pragmatica in those cases). Still, not even Jaime Segovia succeeded de
jure while actually in violation of it (he had Alfonso XIII's
permission to marry unequally). The Pragmatica was enforced
intra-dynastically while the family was in exile via renunciations at
the time of each unequal marriage.
I wonder HOW the Pragmatica is supposed to have excluded the Duke of Segovia
from the succession since:
1° The pragmatica does not have such provision for infants married
unequally, supposing that the Pragmatica is about succession and not only
about dignities.
2° He has already renounced to his rights before his marriage. If the
marriage by itself was enought to exclude him (I really wonder how), then
why was he asked to renounced the rights he would have lost anyway?
I don't think it is serious to claim that the Pragmatica has anything to do
with his exclusion.

Pierre
Charles Stewart
2003-07-29 19:07:18 UTC
Permalink
Post by Pierre Aronax
For convenience, I answer in two different messages.
<...>
Post by Pierre Aronax
But that is not the problem here. The fact
is that many evidences tend to proove that the Pragmatica has no
constitutional effects. You claim that it has nevertheless some legal
effects on the succession.
No, I don't. Once again, your misconstruals are beginning to look more
and more intentional.
As your personal attacks. Didn't you claim that the Pragmatica has effect on
the succession?
Yes.
Post by Pierre Aronax
I said "In you analogy, the pragmatic sanction, which never
actually ruled the Spanish succession", and immediately you protested saying
"In your opinion. Others disagree, and it was to them I referred". If you
disagree with the fact that "the pragmatica never actually ruled the Spanish
succession", one can assume that it is because you think that you claim that
the pragmatica has some legal effects on the succession.
First of all, I did not say "I disagree", therefore your attempt to
force me to defend the Pragmatica's effects on the Spanish succession
is rejected.

Second, as in your recent discussion about coats of arms with Kelly,
you are wont to pounce on an observation someone posts, assume that if
they think it worthy of bringing to ATR's attention they are
proponents of it and obliged to defend it's validity, and then you
either dismiss it as meaningless if they don't debate you or disparage
the advocacy you push them into if they do. It's a ruse to start and
win debates rather than a sincere request for information pursuant to
discovering truth.

If, OTOH, you ask me, "Where may I see the point of view of someone
who disagrees with my interpretation of the Pragmatica's effects?" I
will gladly direct you to review the many posts in ATR's archives that
come up when you google "Guy Stair Sainty" and "Pragmatica" (and the
fact that you disagree with his arguments does not oblige me to
retract the statement "Others disagree" nor to take up defense of his
point of view: I disagree with his view of the Pragmatica too, but I
recognize that his line of argument reflects much thought, research, a
line of logic and consultation with Spanish legal experts and
therefore does not deserve summary dismissal), or I'd suggest that you
post your belief in the Pragmatica's inefficacy on the Franco-Iberian
Royals Message Board <http://members3.boardhost.com/Francoiberian/>
and invite replies, since there has been discussion in depth of its
validity both pre- and post-ATR's last major discussion of it among
people who (not surprisingly!) rarely post here but are quite
knowledgeable about the Pragmatica, history and Spanish monarchical
law. I have learned much by listening to their interpretations.
Post by Pierre Aronax
So I recall you that your declarations about
my supposed "ruse" was not the problem and that the question was the
constitutional effects of the Pragmatica, since "You claim that it has
nevertheless some legal effects on the succession". And then you protested
again, claiming that my presentation of your subtle position was one of my
"misconstruals".
So, I really wonder: if you agree that the Pragmatica has no constitutional
effects, then why are we discussing since I don't know how long, because I
say no more than that here. And if you disagree, then why are you protesting
against my "misconstruals" so vigorously when I say that "you claim that it
has nevertheless some legal effects on the succession"?
Because I believe and have stated several times that the Pragmatica
has, IMHO, had considerable effect on who is King of Spain. I have not
stated, since hearing Francois's in-depth discussion of the
Pragmatica's wording, that it has had "legal" effects on the
succession. I have been very, very emphatic and clear about the
distinction (as anyone can see by googling), yet you keep re-writing
my interpretation, distorting it to say that I assert the Pragmatica's
effects have been felt through application of legal process, which you
then proceed to vehemently deny and denounce.
Post by Pierre Aronax
I am sorry if I have made a travesty of your ingenious thoughts,
No more than of your own
Post by Pierre Aronax
but perhaps
if you express them more clearly, they will be better understood by simple
people like me: I still fail to understand how somebody can not think that
the Pragmatica has legal effects without thinking that it has no legal
effects.
Then re-read my statements instead of trying to attribute to me words
that you are eager to rebut but which do not reflect my views.
Post by Pierre Aronax
Post by Pierre Aronax
Post by Pierre Aronax
was actualy ruled according to the pragmatic sanction
If you can't build your case based upon what I
actually say, please don't assume that I sit here blind while you
re-fashion my words into strawmen.
Have you nothing more to say than to always complain that your great
philosophy is misinterpreted by Philistines?
Another ruse: Exaggerate disagreement with your opponent in a way that
suggests he has made accusations or used unpleasant characterizations
he has not.
Post by Pierre Aronax
Whenever an objection is
opposed to your judgements, your only answer is to say: "That is not what I
have said".
Because that is what has been happening here.
Post by Pierre Aronax
If really what you have said has been misunderstood, it would be
more useful to rephrase it in a more understandable way than to attack your
contradictors. Except of course if it is "a ruse".
It would not be more useful to rephrase it if I am becoming convinced
that my words are being misconstrued without misunderstanding.
Post by Pierre Aronax
Post by Pierre Aronax
To sustain that claim against the evidences, you
need at least one example, if not more than one.
There is no evidence that the Pragmatica had no legal effect,
Since the Pragmatica was not a constitutional text, what we need is a proof
that it has legal effect.
Since it was issued in the form of a law of Spain by an authority with
legal power to issue laws at the time of promulgation, and the
executive branch of Spain's government repeatedly asserted that this
1776 act remained in force as recently as 1915, the presumption is
that it was in legal effect until proven otherwise. And the
distinction you assert between applicability of constitutional text
and statutory text is an assumption of yours, not a universal legal
convention, much less a Spanish 19th century legal convention.
Post by Pierre Aronax
and
there is evidence that it had some effect.
Which ones?
I posted the particulars on
Royaute some time ago
Can you repost it please?
No, because I agree with what you recently noted on Royaute; it is
very difficult to resurrect posts from its archives and the source I
quoted at the time is not available to me now.
Post by Pierre Aronax
when you denied that unequal marriages ever
resulted in loss of dynastic surname.
I deny that unequal marriages have any effect on the loss of surname
("dynastic" as no sense here)
Yes it does. Spaniards inherit a surname that consists of two parts,
one from each parent. The Pragmatica did not strip the child of an
unequal marriage of right to the non-dynast's surname, but to the
dynastic surname.
Post by Pierre Aronax
in Constitutional Spain,
Your insertion of "Constitutional" here is an after-the-fact attempt
to qualify your previous assertion after I denied its truth.
Post by Pierre Aronax
as is obvious by the
fact that otherwise almost all the Spanish nobility will have lost his
surnames according to the prescriptions of the Pragmatica, for all unequal
marriages that have happened during the last two centuries.
Lack of consistent enforcement of the law does not, ipso facto, void
the law. Spain's government explicitly stated the law continued in
effect in the 20th century, and in the 19th century descendants of a
Spanish dynast were denied use of the maternal "Borbon" in legal
documents pursuant to the Pragmatica. The remedy applied was not a
finding that the Pragmatica was obsolete or overridden by the
Constitution, but the intervention of the King by decree granting
specific dispensations from the Pragmatica's effects.
Post by Pierre Aronax
Are you still
claiming that the Duke of Anjou has no right to the name of Bourbon
according to the laws and practice of Constitutional claim?
I never made any such claim and again reject your retro-rewriting of
my statements. I said and say that he had no right to the name of
Bourbon under the monarchical law of Spain, pursuant to the
Pragmatica. More, I maintain he had no right to it in France as a
paternal heritage because, as a son of the Dauphin, Bourbon was not
the legal surname of the Duc d'Anjou, and in Spain it was only his
legal surname under monarchist law to the extent he was born in
compliance with the Pragmatica's restrictions.
Post by Pierre Aronax
I disagree. Some examples are not ambiguous. The example you mentionned, the
marriage of Gaston of Orléans, is ambiguous because its unvalidity is not
sure, neither on a canonical nor on a dynastical point of view.
I disagree.
Post by Pierre Aronax
Even if it
was unvalid, the causes of its unvalidity are equaly ambiguous (would it be
the simple fact that it was made without King's permission that make it
invalid, or the specifical ruling of an ad hoc assembly?).
The latter affirmed the former. The dynastic invalidity of effects of
a marriage contracted without the King de jure's permission is the
principle that survives, regardless of the precise provenance of the
principle.
Post by Pierre Aronax
Post by Pierre Aronax
Post by Pierre Aronax
Post by jlk7e
How many opportunities did it have to be so ruled? That's like
saying
Post by Pierre Aronax
Post by Pierre Aronax
Post by jlk7e
that the provision for papists and those married to them to be
excluded from the British throne is invalid because it's never
been
Post by Pierre Aronax
Post by Pierre Aronax
Post by jlk7e
applied.
No, because the text you mentioned is undoubtfully a constitutional
text,
Post by Pierre Aronax
Why constitutional and not merely statutory?
Past by the Parliament and ruling the succession.
All that proves is that it was a law.
Indeed. Law intended to be part of the consitutional process, since Britain
has no written Constitution.
That's a non sequitor. "intended" by whom? Every new law is not deemed
to be an amendment to Britain's constitution. How is the fact that it
is unwritten relevant?
Post by Pierre Aronax
In 1776 Spain, whether the King
had the authority to unilaterally exclude dynasts from the succession
that married without his authorization may have been a constitutional
issue, but it is not clear that the restriction itself was of
constitutional import.
It is debatable, but anyway we are discussing of the effects of the
Pragmatica in Constitutional Spain.
<Off topic Monegasc example snipped and answered in an other message>
On-topic Monegasque example restored because it illustrates the point
that not all matters affecting a monarchy's are embodied in its
constitution, contrary to the principle necessary to the argument that
the Pragmatica is void due to pre-emption.
Post by Pierre Aronax
Post by Pierre Aronax
In fact, several constitutional Spanish
governments affirmed the applicability of the Pragmatica into the 20th
century and I have not heard that any Spanish official or jurist
considered it inapplicable under the monarchy.
So, why were title of nobilities transmitted to sons and daughters of
"unequal" marriages during a good part of the 19th century and all the
20th
Post by Pierre Aronax
century, and that despite the Pragmatica?
For the same reason most people who cross the street on a red light
don't get citations: inadequate enforcement. But if you get stopped
for jaywalking, try telling the cop that he has no right to give you a
ticket because most jaywalkers get away with it.
I think this analogy makes little sense but if, since more than a century,
nobody has been given any ticket for this infraction, the rule would
certainly be considered obsolete, and the cop who will try to enforce it
upon a single individual would have to face serious challenge.
The Pragmatica was applied to deny the dynastic surname to an unequal
descendant of a dynast less than a century before the Duke of Segovia
had a son who was considered non-dynastic because of the inequality of
his parents' marriage.
Post by Pierre Aronax
IIRC, he has also identified one case in which
the succession rights of an infanta were referred to the Cortes when
she violated the decree.
Still, not even Jaime Segovia succeeded de
jure while actually in violation of it (he had Alfonso XIII's
permission to marry unequally). The Pragmatica was enforced
intra-dynastically while the family was in exile via renunciations at
the time of each unequal marriage.
I wonder HOW the Pragmatica is supposed to have excluded the Duke of Segovia
Once again, stop debating with me arguments I have not made.
Immediately above your comment, I state "not even Jaime Segovia
succeeded de jure while actually in violation of it (he had Alfonso
XIII's permission to marry unequally)" That is the third time I have
said that Jaime was not excluded by the Pragmatica in correction to
your implication that "defenders" of the Pragmatica maintain he was.
Post by Pierre Aronax
1° The pragmatica does not have such provision for infants married
unequally, supposing that the Pragmatica is about succession and not only
about dignities.
Yes, it does, if the marriage occurs without the Sovereign's
authorization.
Post by Pierre Aronax
2° He has already renounced to his rights before his marriage. If the
marriage by itself was enought to exclude him (I really wonder how), then
why was he asked to renounced the rights he would have lost anyway?
Because nobody here but you still thinks that anyone claims he was
excluded by violation of the Pragmatica.
Post by Pierre Aronax
I don't think it is serious to claim that the Pragmatica has anything to do
with his exclusion.
I don't think it is serious to claim that the Pragmatica had nothing
to do with his exclusion.

Charles Stewart
Pierre Aronax
2003-07-31 22:06:42 UTC
Permalink
Post by Charles Stewart
Post by Pierre Aronax
For convenience, I answer in two different messages.
<...>
Post by Pierre Aronax
But that is not the problem here. The fact
is that many evidences tend to proove that the Pragmatica has no
constitutional effects. You claim that it has nevertheless some legal
effects on the succession.
No, I don't. Once again, your misconstruals are beginning to look more
and more intentional.
As your personal attacks. Didn't you claim that the Pragmatica has effect on
the succession?
Yes.
Post by Pierre Aronax
I said "In you analogy, the pragmatic sanction, which never
actually ruled the Spanish succession", and immediately you protested saying
"In your opinion. Others disagree, and it was to them I referred". If you
disagree with the fact that "the pragmatica never actually ruled the Spanish
succession", one can assume that it is because you think that you claim that
the pragmatica has some legal effects on the succession.
First of all, I did not say "I disagree", therefore your attempt to
force me to defend the Pragmatica's effects on the Spanish succession
is rejected.
Is your attempt to force me to advocate for the case of the Duke of Braganza
also rejected?
Post by Charles Stewart
Second, as in your recent discussion about coats of arms with Kelly,
you are wont to pounce on an observation someone posts, assume that if
they think it worthy of bringing to ATR's attention they are
proponents of it and obliged to defend it's validity,
No, but they have not to protest if somebody point that the opinion is
invalid. Or are the opinions taken to ATR's attention supposed not to be
commented?

By the way, it seems that the discussion is always less on the fact and
always more on me and on all that you dislike in me.
Post by Charles Stewart
and then you
either dismiss it as meaningless if they don't debate you or disparage
the advocacy you push them into if they do. It's a ruse to start and
win debates rather than a sincere request for information pursuant to
discovering truth.
Does it qualify as an "aggressive sneering"? I think it does.
I don't think the Queen of the UK as anything like "personal arms". If
somebody think otherwise, I am interested to have a debate with him. If he
has arguments of course.
Post by Charles Stewart
If, OTOH, you ask me, "Where may I see the point of view of someone
who disagrees with my interpretation of the Pragmatica's effects?" I
will gladly direct you to review the many posts in ATR's archives that
come up when you google "Guy Stair Sainty" and "Pragmatica" (and the
fact that you disagree with his arguments does not oblige me to
retract the statement "Others disagree" nor to take up defense of his
point of view: I disagree with his view of the Pragmatica too, but I
recognize that his line of argument reflects much thought, research, a
line of logic and consultation with Spanish legal experts and
therefore does not deserve summary dismissal),
I agree with that and said it to the said person. Nevertheless, despite all
his knowledge, he did not convince me. And, for what is of our exchange,
"others disagree" is an argument of no value in a discussion, and often a
ruse to avoid argumentation on facts by a summary dismissal.
Post by Charles Stewart
or I'd suggest that you
post your belief in the Pragmatica's inefficacy on the Franco-Iberian
Royals Message Board <http://members3.boardhost.com/Francoiberian/>
and invite replies, since there has been discussion in depth of its
validity both pre- and post-ATR's last major discussion of it among
people who (not surprisingly!) rarely post here but are quite
knowledgeable about the Pragmatica, history and Spanish monarchical
law. I have learned much by listening to their interpretations.
Certainly, but I have not the time to post on all boards, and frankly I
don't see the point.
Post by Charles Stewart
Post by Pierre Aronax
So I recall you that your declarations about
my supposed "ruse" was not the problem and that the question was the
constitutional effects of the Pragmatica, since "You claim that it has
nevertheless some legal effects on the succession". And then you protested
again, claiming that my presentation of your subtle position was one of my
"misconstruals".
So, I really wonder: if you agree that the Pragmatica has no
constitutional
Post by Charles Stewart
Post by Pierre Aronax
effects, then why are we discussing since I don't know how long, because I
say no more than that here. And if you disagree, then why are you protesting
against my "misconstruals" so vigorously when I say that "you claim that it
has nevertheless some legal effects on the succession"?
Because I believe and have stated several times that the Pragmatica
has, IMHO, had considerable effect on who is King of Spain. I have not
stated, since hearing Francois's in-depth discussion of the
Pragmatica's wording, that it has had "legal" effects on the
succession. I have been very, very emphatic and clear about the
distinction (as anyone can see by googling), yet you keep re-writing
my interpretation, distorting it to say that I assert the Pragmatica's
effects have been felt through application of legal process, which you
then proceed to vehemently deny and denounce.
Post by Pierre Aronax
I am sorry if I have made a travesty of your ingenious thoughts,
No more than of your own
Post by Pierre Aronax
but perhaps
if you express them more clearly, they will be better understood by simple
people like me: I still fail to understand how somebody can not think that
the Pragmatica has legal effects without thinking that it has no legal
effects.
Then re-read my statements instead of trying to attribute to me words
that you are eager to rebut but which do not reflect my views.
So, in brief, what is your view?
Post by Charles Stewart
Post by Pierre Aronax
Post by Pierre Aronax
Post by Pierre Aronax
was actualy ruled according to the pragmatic sanction
If you can't build your case based upon what I
actually say, please don't assume that I sit here blind while you
re-fashion my words into strawmen.
Have you nothing more to say than to always complain that your great
philosophy is misinterpreted by Philistines?
Another ruse: Exaggerate disagreement with your opponent in a way that
suggests he has made accusations or used unpleasant characterizations
he has not.
Another ruse to avoid to discuss the point. All what I read on this message
for the moment are again complaints about other non-related posts of me or
about the fact that you have been attributed inexact quotations.
Post by Charles Stewart
Post by Pierre Aronax
Whenever an objection is
opposed to your judgements, your only answer is to say: "That is not what I
have said".
Because that is what has been happening here.
The suspense is really becoming untenable! Will the reader knows what Mr
Stewart really think and that Mr Aronax has tried so desperately to hide? Be
patient reader, you will know that after some more lines of complaints.
Post by Charles Stewart
Post by Pierre Aronax
If really what you have said has been misunderstood, it would be
more useful to rephrase it in a more understandable way than to attack your
contradictors. Except of course if it is "a ruse".
It would not be more useful to rephrase it if I am becoming convinced
that my words are being misconstrued without misunderstanding.
I swear they were not! Now, please, to the facts.
Post by Charles Stewart
Post by Pierre Aronax
Post by Pierre Aronax
To sustain that claim against the evidences, you
need at least one example, if not more than one.
There is no evidence that the Pragmatica had no legal effect,
Since the Pragmatica was not a constitutional text, what we need is a proof
that it has legal effect.
Since it was issued in the form of a law of Spain by an authority with
legal power to issue laws at the time of promulgation, and the
executive branch of Spain's government repeatedly asserted that this
1776 act remained in force as recently as 1915, the presumption is
that it was in legal effect until proven otherwise.
It is not mentionned in the Constitution. Besides, the text itself does not
speak of the succession. It is enough to have serious doubts that he has
ever been a Constitutional text governing the succession, an moreover that
he was so under the constitutional monarchy.
Post by Charles Stewart
And the
distinction you assert between applicability of constitutional text
and statutory text is an assumption of yours, not a universal legal
convention, much less a Spanish 19th century legal convention.
Post by Pierre Aronax
and
there is evidence that it had some effect.
Which ones?
I posted the particulars on
Royaute some time ago
Can you repost it please?
No, because I agree with what you recently noted on Royaute; it is
very difficult to resurrect posts from its archives and the source I
quoted at the time is not available to me now.
Too bad. But we can do without. Now, to your oppinion about the Pragmatica
with had effect without having effects on the exclusion of the Duke of
Segovia!
Post by Charles Stewart
Post by Pierre Aronax
when you denied that unequal marriages ever
resulted in loss of dynastic surname.
I deny that unequal marriages have any effect on the loss of surname
("dynastic" as no sense here)
Yes it does. Spaniards inherit a surname that consists of two parts,
one from each parent. The Pragmatica did not strip the child of an
unequal marriage of right to the non-dynast's surname, but to the
dynastic surname.
It does no more, and since a long time. I deny it does: it is easy to prove
me I'm wrong, you have onlyt to quote an example posterior to the marriage
of the Duke of Segovia. It must be easy to find since people who must have
been affected by this provision of the pragmatica must be legions in todays
Spain.
Post by Charles Stewart
Post by Pierre Aronax
in Constitutional Spain,
Your insertion of "Constitutional" here is an after-the-fact attempt
to qualify your previous assertion after I denied its truth.
Not at all: it is a precision. I did not claim that the Pragmatica did not
have the effect you said on the names at the time it was taken, and in the
following periode. I deny it had any effect in Spain on names at the time
when Spain was a Constitutional monarchy and particularly in the 20th
century: only this periode has any interest in the present case, since I
recall you that we were discussing here of the family name of the Duke of
Anjou.
Post by Charles Stewart
Post by Pierre Aronax
as is obvious by the
fact that otherwise almost all the Spanish nobility will have lost his
surnames according to the prescriptions of the Pragmatica, for all unequal
marriages that have happened during the last two centuries.
Lack of consistent enforcement of the law does not, ipso facto, void
the law.
When the "lack of enforcement" happens almost every day since almost a
century, it does.
Post by Charles Stewart
Spain's government explicitly stated the law continued in
effect in the 20th century, and in the 19th century descendants of a
Spanish dynast were denied use of the maternal "Borbon" in legal
documents pursuant to the Pragmatica. The remedy applied was not a
finding that the Pragmatica was obsolete or overridden by the
Constitution, but the intervention of the King by decree granting
specific dispensations from the Pragmatica's effects.
That was in the 19th century. Long time before the marriage of the Duke of
Segovia. You need a more contemporary case to prove that the pragmatica is
still in force when there are so numerous exemples when it did not avoid
transmission of the name in the same periode.
Post by Charles Stewart
Post by Pierre Aronax
Are you still
claiming that the Duke of Anjou has no right to the name of Bourbon
according to the laws and practice of Constitutional claim?
I never made any such claim and again reject your retro-rewriting of
my statements. I said and say that he had no right to the name of
Bourbon under the monarchical law of Spain, pursuant to the
Pragmatica.
So, "under the monarchical law of Spain, pursuant to the Pragmatica" almost
all the Spanish nobility has no right to the names they use. And if the
reality is so obviously in contradiction with the theory, it may imply that
this "monarchical law of Spain" has no value and is no more the law of today
monarchical Spain.
Post by Charles Stewart
More, I maintain he had no right to it in France as a
paternal heritage because, as a son of the Dauphin, Bourbon was not
the legal surname of the Duc d'Anjou, and in Spain it was only his
legal surname under monarchist law to the extent he was born in
compliance with the Pragmatica's restrictions.
According to French law, the name is the name of the father, and the name of
a foreigner is the name he was recognized in his country: the Duke of
Segovia was a foreigner, and his name in his country was Bourbon. His son
was French, and according to French law has right to his father's name, the
Pragmatica notwithstanding (supposing that the Pragmatica has any effect in
Spain at the time). How the Duke of Segovia's ancestors acquired their name
in their country is irrelevant.
Post by Charles Stewart
Post by Pierre Aronax
I disagree. Some examples are not ambiguous. The example you mentionned, the
marriage of Gaston of Orléans, is ambiguous because its unvalidity is not
sure, neither on a canonical nor on a dynastical point of view.
I disagree.
So, you think its unvalidity is sure?
Post by Charles Stewart
Post by Pierre Aronax
Even if it
was unvalid, the causes of its unvalidity are equaly ambiguous (would it be
the simple fact that it was made without King's permission that make it
invalid, or the specifical ruling of an ad hoc assembly?).
The latter affirmed the former.
But is the reverse true? Would it have been unvalid without the ruling?
Post by Charles Stewart
The dynastic invalidity of effects of
a marriage contracted without the King de jure's permission is the
principle that survives, regardless of the precise provenance of the
principle.
Post by Pierre Aronax
Post by Pierre Aronax
Post by Pierre Aronax
Post by jlk7e
How many opportunities did it have to be so ruled? That's like
saying
Post by Pierre Aronax
Post by Pierre Aronax
Post by jlk7e
that the provision for papists and those married to them to be
excluded from the British throne is invalid because it's never
been
Post by Pierre Aronax
Post by Pierre Aronax
Post by jlk7e
applied.
No, because the text you mentioned is undoubtfully a
constitutional
Post by Charles Stewart
Post by Pierre Aronax
text,
Post by Pierre Aronax
Why constitutional and not merely statutory?
Past by the Parliament and ruling the succession.
All that proves is that it was a law.
Indeed. Law intended to be part of the consitutional process, since Britain
has no written Constitution.
That's a non sequitor. "intended" by whom?
The Parliament.
Post by Charles Stewart
Every new law is not deemed
to be an amendment to Britain's constitution. How is the fact that it
is unwritten relevant?
The provision can not be embodied in a written Constitution.

Since what is above has nothing to do with the Pragmatica, and what follows
a little more, I will answer to it in a different post.

Pierre
Charles Stewart
2003-08-01 05:09:31 UTC
Permalink
Post by Charles Stewart
Post by Charles Stewart
Post by Charles Stewart
If you
disagree with the fact that "the pragmatica never actually ruled the
Spanish
Post by Charles Stewart
Post by Charles Stewart
succession", one can assume that it is because you think that you claim
that
Post by Charles Stewart
Post by Charles Stewart
the pragmatica has some legal effects on the succession.
First of all, I did not say "I disagree", therefore your attempt to
force me to defend the Pragmatica's effects on the Spanish succession
is rejected.
Is your attempt to force me to advocate for the case of the Duke of Braganza
also rejected?
Too late. You already made that attempt and failed, doing a sudden
about-face on the necessity of adherence to applicable law in
successions.
Post by Charles Stewart
Post by Charles Stewart
Second, as in your recent discussion about coats of arms with Kelly,
you are wont to pounce on an observation someone posts, assume that if
they think it worthy of bringing to ATR's attention they are
proponents of it and obliged to defend it's validity,
No, but they have not to protest if somebody point that the opinion is
invalid. Or are the opinions taken to ATR's attention supposed not to be
commented?
Comment is not the same as attempted intimidation.
Post by Charles Stewart
By the way, it seems that the discussion is always less on the fact and
always more on me and on all that you dislike in me.
Then you should start to feel as at home here as you did when you
joined Royaute and evoked more comment on your sarcastic style of
engagement than on the "facts" you propounded.
Post by Charles Stewart
Does it qualify as an "aggressive sneering"? I think it does.
Thanks! You're a good teacher, but I have so far to go to catch up...
Post by Charles Stewart
"others disagree" is an argument of no value in a discussion, and often a
ruse to avoid argumentation on facts by a summary dismissal.
"Others disagree" is not meant to be an argument, which is why it is a
comment "of no value" to someone determined to pick a fight. In an
exchange of views in which the objective is discovery of truth, it can
be an invitation to further research.
Post by Charles Stewart
Post by Charles Stewart
Then re-read my statements instead of trying to attribute to me words
that you are eager to rebut but which do not reflect my views.
So, in brief, what is your view?
No one has ever had to accuse me of not stating what I believe and the
reasons for it. If you find you don't know, it isn't because I haven't
told you.

So re-read my statements instead of trying to induce me to use words
that you are eager to rebut but which do not reflect my views.
Post by Charles Stewart
Another ruse to avoid to discuss the point. All what I read on this message
for the moment are again complaints about other non-related posts of me or
about the fact that you have been attributed inexact quotations.
Then stop altering my statements to express opinions that you are
eager to rebut but which do not reflect my views.
Post by Charles Stewart
Post by Charles Stewart
Post by Charles Stewart
Whenever an objection is
opposed to your judgements, your only answer is to say: "That is not
what I
Post by Charles Stewart
Post by Charles Stewart
have said".
Because that is what has been happening here.
The suspense is really becoming untenable! Will the reader knows what Mr
Stewart really think and that Mr Aronax has tried so desperately to hide? Be
patient reader, you will know that after some more lines of complaints.
Oh, Pierre, even if I tried I could never match the evasiveness you
achieved in delaying your answer to the only question you said
mattered in Saxony's succession: who you consider the post-agnatic
heir to be according to historical law.

Anyone reading this original thread can observe for themselves how you
change the meaning of statements and then derisively rebut what I did
not express. Having already stated my views and my reasons for them I
simply decline to play that game with you. But don't let that stop
you...
Post by Charles Stewart
Post by Charles Stewart
Post by Charles Stewart
Can you repost it please?
No, because I agree with what you recently noted on Royaute; it is
very difficult to resurrect posts from its archives and the source I
quoted at the time is not available to me now.
Too bad. But we can do without.
Oh, I wouldn't want you to do that, Pierre. My post was in direct
response to your allegation on Royaute that the Pragmatica had never
had the effect of denying any legitimate descendant of a Spanish king
a surname due to being born of an unequal marriage. The fact that I
won't do your homework for you is no reason you shouldn't do it
yourself. But let's make it easy: others have made reference to it
right here on ATR, and those archives are easily searched...
Post by Charles Stewart
Post by Charles Stewart
Post by Charles Stewart
I deny that unequal marriages have any effect on the loss of surname
("dynastic" as no sense here)
Yes it does. Spaniards inherit a surname that consists of two parts,
one from each parent. The Pragmatica did not strip the child of an
unequal marriage of right to the non-dynast's surname, but to the
dynastic surname.
It does no more, and since a long time.
But that's not what you asserted, is it? What you said is "'dynastic'
[h]as no sense here" and when I point out precisely why you are in
error (the provision is plainly stated in terms of inheritability of
only the "unequal" parent's name and arms), you switch issues instead
of conceding that you didn't know what you were talking about. Have
you *read* the Pragmatica, Pierre?
Post by Charles Stewart
You need a more contemporary case to prove that the pragmatica is
still in force when there are so numerous exemples when it did not avoid
transmission of the name in the same periode.
<sigh> I did not say or imply that the Pragmatica is still in force.
Charles wrote:
"...you denied that unequal marriages ever resulted in loss of
dynastic surname."

Pierre wrote:
"I deny that unequal marriages have any effect on the loss of surname
("dynastic" as no sense here) in Constitutional Spain, as is obvious
by the
fact that otherwise almost all the Spanish nobility will have lost his
surnames according to the prescriptions of the Pragmatica, for all
unequal
marriages that have happened during the last two centuries."

Charles then wrote:
"Spain's government explicitly stated the law continued in
effect in the 20th century, and in the 19th century descendants of a
Spanish dynast were denied use of the maternal "Borbon" in legal
documents pursuant to the Pragmatica."

Pierre then wrote:
"That was in the 19th century. Long time before the marriage of the
Duke of
Segovia. You need a more contemporary case to prove that the
pragmatica is
still in force when there are so numerous exemples when it did not
avoid
transmission of the name in the same periode."

But we weren't talking about current enforceability, or even
enforceability when Jaime married. We were talking about your
contention that the Pragmatica became unenforceable no later than when
Spain adopted a constitution that did not grandfather in the
Pragmatica's provisions.

Spain's government issued a decree in 1915 affirming applicability of
provisions of the 1776 Pragmatica, even though it was rarely complied
with and selectively enforced (nobles seem to have regularly ignored
it even pre-constitution) proving that Spain's executive authority did
not consider the decree to be repealed, obsolete or unconstitutional
on its face. Alfonso XIII and Jaime went into exile in 1931, at which
point monarchical law is frozen for our purposes. Jaime marries in
1935. What evidence is there that between 1915 and 1935 the
Pragmatica's applicability in monarchical law changed?

Charles Stewart
Pierre Aronax
2003-08-01 09:17:06 UTC
Permalink
"Charles Stewart" <***@yahoo.com> a écrit dans le message de news:
***@posting.google.com...


<...>
Post by Charles Stewart
Post by Pierre Aronax
Is your attempt to force me to advocate for the case of the Duke of Braganza
also rejected?
Too late. You already made that attempt and failed, doing a sudden
about-face on the necessity of adherence to applicable law in
successions.
I certainly did not do that.
Post by Charles Stewart
Post by Pierre Aronax
Post by Charles Stewart
Second, as in your recent discussion about coats of arms with Kelly,
you are wont to pounce on an observation someone posts, assume that if
they think it worthy of bringing to ATR's attention they are
proponents of it and obliged to defend it's validity,
No, but they have not to protest if somebody point that the opinion is
invalid. Or are the opinions taken to ATR's attention supposed not to be
commented?
Comment is not the same as attempted intimidation.
What do you call "attempted intimidation" exactly?
Post by Charles Stewart
Post by Pierre Aronax
By the way, it seems that the discussion is always less on the fact and
always more on me and on all that you dislike in me.
Then you should start to feel as at home here as you did when you
joined Royaute and evoked more comment on your sarcastic style of
engagement than on the "facts" you propounded.
I have not the same feeling. I don't know if my style is sarcastic, but that
is on facts that I discuss on Royauté.
Post by Charles Stewart
Post by Pierre Aronax
Does it qualify as an "aggressive sneering"? I think it does.
Thanks! You're a good teacher, but I have so far to go to catch up...
Post by Pierre Aronax
"others disagree" is an argument of no value in a discussion, and often a
ruse to avoid argumentation on facts by a summary dismissal.
"Others disagree" is not meant to be an argument, which is why it is a
comment "of no value" to someone determined to pick a fight.
Or to someone interested to have a discussion on a peculiar point.
Post by Charles Stewart
In an
exchange of views in which the objective is discovery of truth, it can
be an invitation to further research.
Then it must not be used as an argument.
Post by Charles Stewart
Post by Pierre Aronax
Post by Charles Stewart
Then re-read my statements instead of trying to attribute to me words
that you are eager to rebut but which do not reflect my views.
So, in brief, what is your view?
No one has ever had to accuse me of not stating what I believe and the
reasons for it. If you find you don't know, it isn't because I haven't
told you.
So, it must be because this precious gemme was lost in a flow of
considerations of that kind.
Post by Charles Stewart
So re-read my statements instead of trying to induce me to use words
that you are eager to rebut but which do not reflect my views.
But can you not summary your point in, saying, less than 20 or 30 words?
Post by Charles Stewart
Post by Pierre Aronax
Another ruse to avoid to discuss the point. All what I read on this message
for the moment are again complaints about other non-related posts of me or
about the fact that you have been attributed inexact quotations.
Then stop altering my statements to express opinions that you are
eager to rebut but which do not reflect my views.
I don't alter anything.
Post by Charles Stewart
Post by Pierre Aronax
Post by Charles Stewart
Post by Pierre Aronax
Whenever an objection is
opposed to your judgements, your only answer is to say: "That is not
what I
Post by Charles Stewart
Post by Pierre Aronax
have said".
Because that is what has been happening here.
The suspense is really becoming untenable! Will the reader knows what Mr
Stewart really think and that Mr Aronax has tried so desperately to hide? Be
patient reader, you will know that after some more lines of complaints.
Oh, Pierre, even if I tried I could never match the evasiveness you
achieved in delaying your answer to the only question you said
mattered in Saxony's succession: who you consider the post-agnatic
heir to be according to historical law.
As I said: nobody for the moment: it is impossible to say who it is until
the death of the last dynast. You were not so interested by that since it is
the last part of my message you did not comment.
Post by Charles Stewart
Anyone reading this original thread can observe for themselves how you
change the meaning of statements and then derisively rebut what I did
not express. Having already stated my views and my reasons for them I
simply decline to play that game with you.
You are free to do so. But your views are still obscure to me, at least on
the Pragmatica which plaied a role in the exclusion of the Duke of Segovia,
but without playing any role in it.
Post by Charles Stewart
But don't let that stop
you...
Post by Pierre Aronax
Post by Charles Stewart
Post by Pierre Aronax
Can you repost it please?
No, because I agree with what you recently noted on Royaute; it is
very difficult to resurrect posts from its archives and the source I
quoted at the time is not available to me now.
Too bad. But we can do without.
Oh, I wouldn't want you to do that, Pierre. My post was in direct
response to your allegation on Royaute that the Pragmatica had never
had the effect of denying any legitimate descendant of a Spanish king
a surname due to being born of an unequal marriage.
Of course I did not say that. I did say that I think no dynast was deprived
of his name for being born of an unequal marriage since the time of Alphonse
XII. Here the quotation of my message to which you answered:

"C'est entièrement faux. Ou prouvez que cet article de la pragmatique
a été appliqué en Espagne depuis, disons, Alphonse XII. Quand bien
même Louis n'aurait pas droit à ce nom en Espagne (ce qui, je le
répète, est complètement faux), la loi française n'a pas à connaître
la Pragmatique."
Post by Charles Stewart
The fact that I
won't do your homework for you is no reason you shouldn't do it
yourself. But let's make it easy: others have made reference to it
right here on ATR, and those archives are easily searched...
Post by Pierre Aronax
Post by Charles Stewart
Post by Pierre Aronax
I deny that unequal marriages have any effect on the loss of surname
("dynastic" as no sense here)
Yes it does. Spaniards inherit a surname that consists of two parts,
one from each parent. The Pragmatica did not strip the child of an
unequal marriage of right to the non-dynast's surname, but to the
dynastic surname.
It does no more, and since a long time.
But that's not what you asserted, is it?
Yes it is.
Post by Charles Stewart
What you said is "'dynastic'
[h]as no sense here" and when I point out precisely why you are in
error (the provision is plainly stated in terms of inheritability of
only the "unequal" parent's name and arms), you switch issues instead
of conceding that you didn't know what you were talking about. Have
you *read* the Pragmatica, Pierre?
You misunderstood (but it seems to make you really happy): "Dynastic" has no
sense here because this provision of the Pragmatica is not specifical to
dynasts and because we were speaking here of the loss of a name, not of
succession rights.
Post by Charles Stewart
Post by Pierre Aronax
You need a more contemporary case to prove that the pragmatica is
still in force when there are so numerous exemples when it did not avoid
transmission of the name in the same periode.
<sigh> I did not say or imply that the Pragmatica is still in force.
"...you denied that unequal marriages ever resulted in loss of
dynastic surname."
"I deny that unequal marriages have any effect on the loss of surname
("dynastic" as no sense here) in Constitutional Spain, as is obvious by the
fact that otherwise almost all the Spanish nobility will have lost his
surnames according to the prescriptions of the Pragmatica, for all unequal
marriages that have happened during the last two centuries."
"Spain's government explicitly stated the law continued in
effect in the 20th century, and in the 19th century descendants of a
Spanish dynast were denied use of the maternal "Borbon" in legal
documents pursuant to the Pragmatica."
"That was in the 19th century. Long time before the marriage of the
Duke of
Segovia. You need a more contemporary case to prove that the
pragmatica is
still in force when there are so numerous exemples when it did not avoid
transmission of the name in the same periode."
But we weren't talking about current enforceability, or even
enforceability when Jaime married. We were talking about your
contention that the Pragmatica became unenforceable no later than when
Spain adopted a constitution that did not grandfather in the
Pragmatica's provisions.
Spain's government issued a decree in 1915 affirming applicability of
provisions of the 1776 Pragmatica, even though it was rarely complied
with and selectively enforced (nobles seem to have regularly ignored
it even pre-constitution) proving that Spain's executive authority did
not consider the decree to be repealed, obsolete or unconstitutional
on its face. Alfonso XIII and Jaime went into exile in 1931, at which
point monarchical law is frozen for our purposes. Jaime marries in
1935. What evidence is there that between 1915 and 1935 the
Pragmatica's applicability in monarchical law changed?
Wait a minute: are we talking of the dynastic effects of the Pragmatica here
or of its effects on surnames? For my part, I was speaking of its effects on
surnames: it is obvious that it has no more effects on surname in Spain at
the time when the monarchy ended, and long before that, since otherwise all
the Spanish nobility will have had to change is name. I don't see how the
Duke of Anjou posterity will be the only exeption, the only case in which
this specific provision of the Pragmatica will apply.

Pierre
Pierre Aronax
2003-08-01 12:32:28 UTC
Permalink
Post by Guy Stair Sainty
says...
<...>
Post by Guy Stair Sainty
But this was not considered by anyone to
have any relevance to their dynastic rights which *at the time*
no one believed such descendants enjoyed; it was simply that
Alfonso XII considered this aspect of the pragmatic of 1776
inequitable.
The argument I had on Royauté was only about the name, not about the
dynastyc rights.
Post by Guy Stair Sainty
Louis-Alphonse was born a Borbon and his birth
registered along with the title "Royal Highness" (thanks to the decree of
his
Post by Guy Stair Sainty
maternal great-grandfather); it is actually by no means clear that,
like some other members of the royal family he did not benefit
from the last article of the transitory provisions
of the decree of 1987, which allows all members of the king's
family the titles and qualifications they enjoyed at the time.
It seems that the interpretation is now that the "Royal Highness" was only
for each duke of Cadix (and not for him and his firstborn son). The heredity
of this title having been abroged by the new constitution, and Louis not
having been duke of Cadix and RH, he would not be intitle to use the
predicat under the transitory provisions. But the fact is that he was known
as a Royal Highness, and this interpretation is only a little nastiness
against him.
Post by Guy Stair Sainty
The interpretation imposed by the royal household subsequently,
when instructions were given to the Ministry of Foreign Affairs
and the Ministry of the Interior not to renew the passports and
identity cards with the qualification "royal highness" for
persons other than those who had received specific grant of the
title (the future Infante D. Carlos, his wife and mother being
exempted from this and continuing after 1987 to have the title
royal highness, etc), seems actually to have conflicted with
this decree. I suspect that once the Prince of the Asturias is
married suitably, that he a petition by him to succeed to the
title of Duke of Cadiz may then be assented to.
A question I already asked, but perhaps it was on Royauté: can a Spanish
title "merge in the Crown"? In that case, he would not be intitled to
petition for the Dukedom of Cadiz (at least the previous one, as opposed to
the Franco-title).

Pierre
Guy Stair Sainty
2003-08-01 16:07:10 UTC
Permalink
In article <3f2a5de3$0$23386$***@nan-newsreader-02.noos.net>, "Pierre
says...
Post by Pierre Aronax
Post by Guy Stair Sainty
says...
<...>
Post by Guy Stair Sainty
But this was not considered by anyone to
have any relevance to their dynastic rights which *at the time*
no one believed such descendants enjoyed; it was simply that
Alfonso XII considered this aspect of the pragmatic of 1776
inequitable.
The argument I had on Royauté was only about the name, not about the
dynastyc rights.
Post by Guy Stair Sainty
Louis-Alphonse was born a Borbon and his birth
registered along with the title "Royal Highness" (thanks to the decree of
his
Post by Guy Stair Sainty
maternal great-grandfather); it is actually by no means clear that,
like some other members of the royal family he did not benefit
from the last article of the transitory provisions
of the decree of 1987, which allows all members of the king's
family the titles and qualifications they enjoyed at the time.
It seems that the interpretation is now that the "Royal Highness" was only
for each duke of Cadix (and not for him and his firstborn son). The heredity
of this title having been abroged by the new constitution, and Louis not
having been duke of Cadix and RH, he would not be intitle to use the
predicat under the transitory provisions. But the fact is that he was known
as a Royal Highness, and this interpretation is only a little nastiness
against him.
Post by Guy Stair Sainty
The interpretation imposed by the royal household subsequently,
when instructions were given to the Ministry of Foreign Affairs
and the Ministry of the Interior not to renew the passports and
identity cards with the qualification "royal highness" for
persons other than those who had received specific grant of the
title (the future Infante D. Carlos, his wife and mother being
exempted from this and continuing after 1987 to have the title
royal highness, etc), seems actually to have conflicted with
this decree. I suspect that once the Prince of the Asturias is
married suitably, that he a petition by him to succeed to the
title of Duke of Cadiz may then be assented to.
A question I already asked, but perhaps it was on Royauté: can a Spanish
title "merge in the Crown"? In that case, he would not be intitled to
petition for the Dukedom of Cadiz (at least the previous one, as opposed to
the Franco-title).
The earlier title indeed ceased to exist as such when the duke
becam king. But I note that in the Elenco de Grandezas the title
is still listed, with L-A noted as the son, with the date of
creation, but simply not as having petitioned for succession.
If such a petition was made, the King could (I believe) give his consent,
but I doubt that the petition will be made until the King is ready
to do so (if he is). I am not sure how much "nastiness" is
involved; everyone likes L-A and he is always a guest at the
royal Christmas party, for example. Equally they can not forget
1972, which has been detailed in Peter Preston's new biography
(and I am told the King liked this book very much as it is the
work of a left-wing historian who is very favorable to the King
- the King expects support from conservative historians but is
even more pleased when he gets it from the left). I am told that
the section in the book (which I have not yet read) reflects
exactly the Zarzula viewpoint on this - whether or not this
is presented in what might be considered a partisan fashion,
the fact that it is highly critical of the late duke of Cadiz
demonstrates that this view is still held in the Zarzuela. Hence
I think any "nastiness" is not really directed at L-A, but at
his deceased father whose (purported) actions still rankle deeply.

Guy Stair Sainty
www.chivalricorders.org/index3.htm
Guy Stair Sainty
2003-08-02 14:23:42 UTC
Permalink
In article <3f2a9aa9$0$24857$***@nan-newsreader-02.noos.net>, "Pierre
says...
Probably indeed. Is it the same Preston who wrote the biography of Franco?
Yes. One of many biographies recently, and (IMO) somewhat lacking
in objectivity.

Guy Stair Sainty
www.chivalricorders.org/index3.htm
Guy Stair Sainty
2003-08-01 11:29:41 UTC
Permalink
Post by Charles Stewart
Oh, I wouldn't want you to do that, Pierre. My post was in direct
response to your allegation on Royaute that the Pragmatica had never
had the effect of denying any legitimate descendant of a Spanish king
a surname due to being born of an unequal marriage. The fact that I
won't do your homework for you is no reason you shouldn't do it
yourself. But let's make it easy: others have made reference to it
right here on ATR, and those archives are easily searched...
As someone whose participation in the Royaute forum has been
censored because of my support for French legitimism, I missed
this. However there are numerous cases of legitimate descendants
of a Spanish king being deprived of the name of Bourbon. They
start with the issue of the Infante Dom Luis-Antonio, the first
whose marriage was disapproved under the pragmatic, whose children
were all given the name of their mother - and only allowed the
name of Bourbon after their father's death and that of Charles
III himself. But then it was amde very clear that they did not
enjoy dynastic rights, insuring that the future Cardinal Archbishop
of Toledo and sometimes Regent was not a dynast. Then the children
of the sisters of King-Consort Francisco de Asis were also
deprived of the name of Bourbon; & the son of the second, morganatic
marriage of Infante D. Francisco de Paul. Under Alfonso XII, all
the children of Infantas who had lost the name Bourbon, were
restored to this maternal name. The restoration to the name was
not considered to be a restoration of dynastic rights, which they
were considered by everyone at the time to have never enjoyed.

Guy Stair Sainty
www.chivalricorders.org/index3.htm
Pierre Aronax
2003-08-01 12:08:13 UTC
Permalink
Post by Guy Stair Sainty
Post by Charles Stewart
Oh, I wouldn't want you to do that, Pierre. My post was in direct
response to your allegation on Royaute that the Pragmatica had never
had the effect of denying any legitimate descendant of a Spanish king
a surname due to being born of an unequal marriage. The fact that I
won't do your homework for you is no reason you shouldn't do it
yourself. But let's make it easy: others have made reference to it
right here on ATR, and those archives are easily searched...
As someone whose participation in the Royaute forum has been
censored because of my support for French legitimism,
Something I found absurd (I mean the censure, not the support).
Post by Guy Stair Sainty
I missed
this. However there are numerous cases of legitimate descendants
of a Spanish king being deprived of the name of Bourbon. They
start with the issue of the Infante Dom Luis-Antonio, the first
whose marriage was disapproved under the pragmatic, whose children
were all given the name of their mother - and only allowed the
name of Bourbon after their father's death and that of Charles
III himself. But then it was amde very clear that they did not
enjoy dynastic rights, insuring that the future Cardinal Archbishop
of Toledo and sometimes Regent was not a dynast. Then the children
of the sisters of King-Consort Francisco de Asis were also
deprived of the name of Bourbon; & the son of the second, morganatic
marriage of Infante D. Francisco de Paul. Under Alfonso XII, all
the children of Infantas who had lost the name Bourbon, were
restored to this maternal name. The restoration to the name was
not considered to be a restoration of dynastic rights, which they
were considered by everyone at the time to have never enjoyed.
As you can seen from the quotation of my original post on Royauté (see my
own answer to the previous message of Charles Stewart), I only asked my
contradictor for any example of such deprivation under the Constitutional
monarchy, since the time of Alphonse XII: I was aware of previous
deprivations, particularly because we had already discussed that point on
ATR.

Pierre
Guy Stair Sainty
2003-08-01 11:10:43 UTC
Permalink
In article <3f2992fc$0$26792$***@nan-newsreader-03.noos.net>, "Pierre
says...
Post by Pierre Aronax
Post by Charles Stewart
If, OTOH, you ask me, "Where may I see the point of view of someone
who disagrees with my interpretation of the Pragmatica's effects?" I
will gladly direct you to review the many posts in ATR's archives that
come up when you google "Guy Stair Sainty" and "Pragmatica" (and the
fact that you disagree with his arguments does not oblige me to
retract the statement "Others disagree" nor to take up defense of his
point of view: I disagree with his view of the Pragmatica too, but I
recognize that his line of argument reflects much thought, research, a
line of logic and consultation with Spanish legal experts and
therefore does not deserve summary dismissal),
I agree with that and said it to the said person. Nevertheless, despite all
his knowledge, he did not convince me. And, for what is of our exchange,
"others disagree" is an argument of no value in a discussion, and often a
ruse to avoid argumentation on facts by a summary dismissal.
Fair enough; I do not expect everyone to agree with me, and indeed
there would be no exchanges apart from affirmations of supposed
universal truths if indeed we all did so. But in this case, I
think it is relevant, as Charles Stewart does seem to state, that
the King acted in a particular way (and perhaps General Franco also)
because they believed the pragmatic decree of 1776 did exclude
dynasts who made such marriages. The 1920s case over the duke of Seville
in fact depended on that interpretation - the case was not actually
over the exclusionary decree of 1838, but whether it was justified
on the basis on the decree of 1776 - both the tribunal and the
government (the records of the Cortes debate are available)
evidently considered that the decree of 1776 should be interpreted
as an exclusion of descendants. I am getting copies of this debate
and shall in due course post them on my web site. I have maintained
throughout the earlier debate on this subject that all the
authoritative parties actually believed the decree to have been
sufficient to exclude descendants of marriages in breach of this
from the succession, and have consistently argued against the view
that the various persons who believed otherwise were simply mistaken.
Never, as far as I have discovered, was the contrary view ever
argued - that a Bourbon descendant of a marriage that did not
meet the requirements of the pragmatic, who had lost their royal
titles and name (the latter not beign enforced after the succession
of Alfonso XII), still retained his or her dynastic rights.

I continue to take that view, irrespective of the constitution,
which I believe merely imposed further limitations on the succession.
One might wonder, for example, what the view of the Portuguese
might have been if the 1838 constitutionhad not mentioned the
nationality requirement - would this be considered to have eliminated
the earlier more "fundamental" law (as I believe Portuguese monarchists
understood it, even if the concept of fundamental laws is considered
obsolete in the modern constitutional realm) requiring nationality?
Would this "fundamental" principle still not have prevented the
union of Portugal with Spain if, for example, the sovereign of
Portugal had married the sovereign of Spain, if the nationality
clause had not been included?

Guy Stair Sainty
www.chivalricorders.org/index3.htm
Pierre Aronax
2003-07-31 22:09:01 UTC
Permalink
"Charles Stewart" <***@yahoo.com> a écrit dans le message de news:
***@posting.google.com...


<...>
Post by Charles Stewart
Post by Pierre Aronax
In 1776 Spain, whether the King
had the authority to unilaterally exclude dynasts from the succession
that married without his authorization may have been a constitutional
issue, but it is not clear that the restriction itself was of
constitutional import.
It is debatable, but anyway we are discussing of the effects of the
Pragmatica in Constitutional Spain.
<Off topic Monegasc example snipped and answered in an other message>
On-topic Monegasque example restored because it illustrates the point
that not all matters affecting a monarchy's are embodied in its
constitution, contrary to the principle necessary to the argument that
the Pragmatica is void due to pre-emption.
No, since the Pragmatica is not mentionned in the Constitution, when the
House Law of Moanco is mentionned in its constitution.
Post by Charles Stewart
Post by Pierre Aronax
Post by Pierre Aronax
In fact, several constitutional Spanish
governments affirmed the applicability of the Pragmatica into the 20th
century and I have not heard that any Spanish official or jurist
considered it inapplicable under the monarchy.
So, why were title of nobilities transmitted to sons and daughters of
"unequal" marriages during a good part of the 19th century and all the
20th
Post by Pierre Aronax
century, and that despite the Pragmatica?
For the same reason most people who cross the street on a red light
don't get citations: inadequate enforcement. But if you get stopped
for jaywalking, try telling the cop that he has no right to give you a
ticket because most jaywalkers get away with it.
I think this analogy makes little sense but if, since more than a century,
nobody has been given any ticket for this infraction, the rule would
certainly be considered obsolete, and the cop who will try to enforce it
upon a single individual would have to face serious challenge.
The Pragmatica was applied to deny the dynastic surname to an unequal
descendant of a dynast less than a century before the Duke of Segovia
had a son who was considered non-dynastic because of the inequality of
his parents' marriage.
When his parents married, his father has already renounced to his rights of
succession, so how can his son be denied to have inherited form him rights
he already had lost?
Post by Charles Stewart
Post by Pierre Aronax
IIRC, he has also identified one case in which
the succession rights of an infanta were referred to the Cortes when
she violated the decree.
Still, not even Jaime Segovia succeeded de
jure while actually in violation of it (he had Alfonso XIII's
permission to marry unequally). The Pragmatica was enforced
intra-dynastically while the family was in exile via renunciations at
the time of each unequal marriage.
I wonder HOW the Pragmatica is supposed to have excluded the Duke of Segovia
Once again, stop debating with me arguments I have not made.
Immediately above your comment, I state "not even Jaime Segovia
succeeded de jure while actually in violation of it (he had Alfonso
XIII's permission to marry unequally)" That is the third time I have
said that Jaime was not excluded by the Pragmatica in correction to
your implication that "defenders" of the Pragmatica maintain he was.
Yes, nobody understand you, that's dramatic. But you also said just after:
"The Pragmatica was enforced intra-dynastically while the family was in
exile via renunciations at the time of each unequal marriage". If the
Pragmatica was "enforced by renunciations", it seems to mean that the
renunciations were enforcing the Pragmatica. Perhaps it is here a subtleness
of English that I don't understand, but if a law is enforced, I suppose this
as something to do with the provisions of the law. How can the Pragmatica
have been "enforced" by a renunciation of the Duke of Segovia to his rights
when the Pragmatica will not have deprived him of his rights? Where is the
logical link here is what I can really not understand.
Post by Charles Stewart
Post by Pierre Aronax
1° The pragmatica does not have such provision for infants married
unequally, supposing that the Pragmatica is about succession and not only
about dignities.
Yes, it does, if the marriage occurs without the Sovereign's
authorization.
That is not the case here.
Post by Charles Stewart
Post by Pierre Aronax
2° He has already renounced to his rights before his marriage. If the
marriage by itself was enought to exclude him (I really wonder how), then
why was he asked to renounced the rights he would have lost anyway?
Because nobody here but you still thinks that anyone claims he was
excluded by violation of the Pragmatica.
Has this phrase really a sense in English?
Post by Charles Stewart
Post by Pierre Aronax
I don't think it is serious to claim that the Pragmatica has anything to do
with his exclusion.
I don't think it is serious to claim that the Pragmatica had nothing
to do with his exclusion.
Then it must have something to do with it. But what? That is what we will
perhaps know in a next post.



Pierre
Pierre Aronax
2003-07-26 15:00:10 UTC
Permalink
<snip>
Post by Pierre Aronax
What historical legacy is represented by the Austria-Este family?
Only a name and a remembrance: they do not claim to be the heirs of the
Dukedom of Modena.
And by what authority did they assume that "name and a remembrance" if
not based on cession from the head of the house that claims succession
rights to that duchy?
We already discussed that: the last Duke of Modena had no power to choose
his heir (I mean by that the heir of his crown). All that he can do was to
choose an heir for his private property and ask that he kept his name,
nothing more.

But the succession to the Dukedom of Modena has nothing to do with that: it
was ruled by the Congress of Vienna, which confirmed the previously existing
treaty between Modena and Austria, according to which, failing an heir to
the Duke, the Dukedom must go to the second son of the Austrian sovereign.
Since Austria recognized the annexion of Modena by Italy, this part of the
agreement is certainly obsolete, but, even in the case it is not, if the
actual Archduke of Austria-Este has a claim to the Dukedom of Modena that is
in virtue of an international treaty and of convention between sovereigns,
and not of the testament of a deposed duke who would have made something
contrary or not specified by the rules of succession existing before his
deposition. And the use of the name "Este" is a strictly Habsburgan affair.
Post by Pierre Aronax
Or
the Dukes in Bavaria?
Only a name and a remembrance: they do not claim to be the heirs of the
Dukedom of Modena.
Yes they claim to be heirs to the Dukedom by virtue of being so
designated and adopted by the last legitimate Duke in Bavaria. By what
authority did you imagine the "name and a remembrance" is claimed?
By adoption and is actual effects in actual German law. In the virtual
world, one can consider that the titular King of Bavaria regranted the
extinct title to the heir in female line: it happens frequently in all
countries where nobility is still alive. This has little to do with the case
we are dicussing, since the Dukedom in Bavaria was not a sovereign crown, as
Modena or Saxony, but merely a title given by the King of Bavaria. So, there
is nothing more to claim here than a remembrance.
Post by Pierre Aronax
Or the Carlist monarchists?
I am affraid they have a great lake of legal claimant now.
I don't know what that means. But between 1936 and 1978 they had an
active political party, a monarchical representative, and Spaniards
who recognized their political validity, regardless of its dynastic
purity.
And so what?
Post by Pierre Aronax
Or the claimants to
Anhalt, Bavaria, Mecklenburg, Portugal, Yugoslavia and other
monarchies whose claim would not be valid under a strict
interpretation of old law?
Mecklenburg are now dynastically extinct and their rights have gone to the
Prussian claimant.
According to you. Others disagree.
What are their arguments?
And whom do you regard as the
Prussian claimant?
That's another question.
Post by Pierre Aronax
The succession of Bavaria was supposed to be conform to
the old law (I know the law was twisted, but by a legal artifice).
The artifice is legal only by post-monarchical law of the kind that
makes Alexander Prinz von Sachsen the heir of the Margrave of Meissen
by virtue of being his dynastic son. Yet you accept the Bavarian
"artifice" but disdain the "Afif" mechanism, contradicting your own
objections.
IIRC, the legal artifice in the Bavarian case was that, according to
traditional principles of the House of Wittelsbach (and not to the
post-monarchical law), the head of house had the power to decide if a
marriage was dynastic or not. Does the Constitution of Bavaria or the House
law of the Wittelsbachs say that the bride of a Bavarian prince has to be
ebenbürtig, as the House law of the kingdom of Saxony do? I have not checked
but I don't think so.
What is
Post by Pierre Aronax
your point about Portugal and Yugoslavia? Place of birth of the claimant?
Among other objections. The point is that a number of current
claimants do not meet the standards for heirship under monarchical
laws, and in each succeeding generation fewer will do so. Therefore,
those who care for their dynastic legacy to endure are working out
adjustments to continue their representation. If you despise the
efforts of the Saxony dynasty today, you will be doling out a lot more
contempt as the years go by.
I disagree with this interpretation: for the Portugal case, if the objection
is that the descendants of Don Miguel were not in the line during the last
period of the monarchy, they were nevertheless in line before that. So,
there case is similar to the case of the count of Chambord after 1830: he
was not claimant under the rules of the last monarchical period, but he has
a claim under an other perspective, and according to rules which were
changed in debatable conditions. Nothing of that kind for Alexander Afif: if
we admit that an heir can be chosen only because an heir is needed, without
respect for what are the rules, then why not an adoptive heir without blood
relation? I think the only coherent point of view is to follow the rules
that existed in periods during which the monarchy actually existed.
Otherwise, who chooses which changes are correct and which are not?
Post by Pierre Aronax
What is the exact historical legacy of
anything if the legal claim to it is invalid because obsolete in law?
Who declares that the law is obsolete if the law has no provision to do so?
You?
Well, it is you who have declared that the prammatica is obsolete
despite evidence adduced here by Guy Stair Sainty to the contrary.
This evidences did not convinced me. Are you discuting the fact that the
pragmatica is no more used for the succession to the noble titles in Spain?
But as for the obsolescence of the monarchical law of, e.g., the
ancien regime of France, I'd love to take credit, but I fear the
current law of France claims that privilege. As does the current law
in any other country that is no longer a monarchy.
Indeed, but since we are speaking of monarchical claim, we are playing in
the space of the monarchical rules.

<...>
Post by Pierre Aronax
Indeed. That does not mean that I agree with their point of view: I find
certainly a logic in it, that's all, when I find no logic in the claim of
Michael Lafosse, and little more in the eventual claim of the Afifs.
The Afifs? Wasn't it you who elsewhere recently posted that you
acknowledge legitimist law on succession claims but current law on
surnames? Do please be consistent with your own rationale.
But it was in a monarchy, so the factual and the virtual were not distinct.
Anyway, I do not at all discuss the fact that the Afifs are legaly entitled
to use the name "Prinz von Sachsen", as are many people not related at all
with that family. That is an obvious fact. I call them the Afifs only to
avoid the confusions which can arise if I call them "the Sachsens".
Post by Pierre Aronax
Yet they treat the "illegal"
claim to a throne by a Windsor the way you intend to treat that of an
Afif.
Not at all. The Jacobit claim is in contradiction with today's reality of
the British monarchy, but one can consider that it is in conformity with a
previously existing rule of succession (the question is: was the change of
rule legal? The Jacobits claim it was not).
No, that is not the question. Those who fully support the claims of
Elizabeth II over the Jacobite claimant acknowledge that the change in
dynasty was not legal under the system of England's ancien regime. The
question is "is it legal?" Now.
I don't follow your point here.
Post by Pierre Aronax
But the claim of an Afif does
not represent the application of rules which have been changed by force in
an existing monarchy, so that the legitimacy of this change can perhaps be
Certainly it can be discussed, as can anything. But the fact is that
the Jacobite kingdom exists in *any law* no more than does Saxony. The
issue eventually becomes whether de facto changes become legitimate
over time. Your answer as a legitimist is no.
Am I?
Others answer
differently.
De facto changes can certainly become legitimate over time when they happen
in reality. And de jure rights can certainly exist in the abstract. But I
don't see what will be a de facto change in the abstract, and that is what
will be the
modification of the rules of succession to a non existing kingdom.
Post by Pierre Aronax
I leave it to Maria Emmanuel Margrave of Meissen to charge his kinsman
to maintain his line's tradition.
Even if, according to the tradition he is heir, he has no authority to do
so? Can he choose anybody in your theory, even somebody not related by
blood? From where comes this new power?
I'm not propounding any theory, but acknowledging what Saxony's
dynasties are doing.
What do you mean by "acknowledge"? Take not, agree with, applaud to?
If you wish to hear it defended, contact them. I
don't feel compelled to convince you that they are doing what they are
doing.
I am already convinced that they are doing what they are doing: my point is
that what they are doing is meaningless and has no effect on the succession.
I find what they do of greater interest than the unchampioned claim of
the Erbbruderung, but not more historically legal. My interest is in
both the historical legal claim and in the actual claim as the
surviving dynasts attempt to resolve it among themselves, but more in
the latter. I would have more interest in the former if there was a
claimant expressing any interest or intention in representing the
dynastic legacy of the royal house of Saxony. So far, I've seen no
evidence that the dwindling Ernestines or Hessians or Prussians or
Hohenzollern-Sigmaringens even have knowledge of their historical
legal claim, let alone any inclination to take it up.
So, for example, if the margrave had not even a nephew morganaut in female
line, has he the right to choose anybody to preserve is dynastic legacy,
only on the argument that the show must go on? What is this legacy if it is
not governed by any rule? Can anybody declare that it is claimant to
something because we need claimants? In, saying, three or four generations,
will you consider that the descendants of Michael Lafosse are presentable
claimants on the argument that de facto claims become legitime when the time
has gone?
Post by Pierre Aronax
Post by Pierre Aronax
Post by Charles Stewart
ATR recently considered that a common
misinterpretation of a 1776 pragmatic sanction resulted in the
diversion of Spain's crown to Juan Carlos de Borbon, while the legal
right under its 1876 constitution probably belongs to the French
legitimist claimant known as Luis Alfonso de Borbon.
That is not a "common misinterpretation" of the pragmatic sanction
which
Post by Pierre Aronax
gav
Post by Pierre Aronax
e the crown to King John Charles, that is the present Spanish
constitution.
No, to some monarchists Juan Carlos rightfully became King of Spain in
virtue of being "legitimate heir of the historic dynasty" and they
regard the Pragmatic as having been applied to exclude other senior
heirs of that dynasty. It was to them I referred.
So, what are you opposing if you are not opposing what is and what must have
been? Two different must have been?
To some, it is important (and was considered so during Cortes debates
about adoption of the post-1975 constitution) that the present king be
recognized and perceived as "legitimate heir of the historic dynasty"
and not as king merely by virtue of Franco designation or recent
popular election pursuant to Franco's designation. It is crucial to
their argument that the Prammatica was in legal operation (at least
for monarchists) in 1975 when Juan Carlos ascended and that it
excluded persons from succession rights born of unequal marriages.
Except that, according to that conception, the Count of Barcelona would have
become king, and not his son.
Otherwise Luis Alfonso de Borbon y Martinez-Bordiu's dynastic claim to
the Spanish crown is stronger than that of Juan Carlos.
According to the rules previously existing, certainly, but the rules have
been changed by people who, according to Spanish tradition, had authority to
do so (that is, by a government, by deputies, by a referendum and by a new
constitution: not by a family council in exile or by an autocratic head of
house), and the Duke of Segovia and his son agreed to this modification so
that they renounced their rights to the Spanish succession (which is
perfectly congruent with Spanish tradition, where renunciations are valid:
otherwise, the Duke of Parma would be the heir of Charles II). All this has
nothing to do with the little private familial agreement of the Margrave of
Misnia.
My larger point was that there is no necessary "opposition" between
being interested in historical legal claims and actual claims being
put forward by dynasts.
Of course, but it is important, precisely if you are interested by both, not
to confuse them. Perhaps some day monarchy will come back in Saxony, and
that day a descendant of Alexander "Afif" Prinz von Sachsen will be chosen
as king. But this will be the instauration of a new monarchy, not the
restoration of the previously existing monarchy (as 1830 in France was the
instauration of a new monarchy which can claim some links with the
previously existing one, but certainly not to be its heir).
Post by Pierre Aronax
And I did not say that anybody "gave" the crown to Juan Carlos, which
implies a deliberate act my sentence did not suggest. I said that an
interpretation of the prammatica "resulted in the diversion of Spain's
crown to Juan Carlos."
So, what do you mean by "diversion" if not the fact that King John Charles
received the crown?
That without the prevalent interpretation that the Prammatica excluded
Infante don Jaime's descendants from the Spanish succession, it is
unlikely that Juan Carlos would now be king, because Franco is as
likely to have designated the late Duque de Cadiz as monarchical heir.
Difficult to believe: almost all monarchists had agreed to choose the count
of Barcelona as their claimant, and that choice was made by Alphonse XIII
himself before the Duke of Segovia married "unequally". So the argument of
the Pragmatica was only a necessity argument. Franco probably plays with the
idea to choose the Duke of Cadiz, but he did not, and the fact is that he
choose an heir who was neither the heir according to the real rules (that
is, the Duke of Segovia, who can not have been excluded according to the
rules of the Pragmatica), neither the heir chosen through the rules twisted
during the exile (that is, the Count of Barcelona), but a third prince. This
prince happened to be the son of the Count of Barcelona, which made him
acceptable for the supporters of the later, but the choice of Franco was not
in any case the heir of the Spanish crown "according to the Pragmatica"
(supposing that the Pragmatica had any legal effect on the succession).
Post by Pierre Aronax
Post by Pierre Aronax
In you analogy, the pragmatic sanction, which never actually ruled the
Spanish succession,
In your opinion. Others disagree, and it was to them I referred.
So, if you think otherwise, give us a single example where the succession
was actualy ruled according to the pragmatic sanction.
I did not say I thought otherwise. Read Guy Stair Sainty's posts on
this subject in ATR's archives.
As I said previously, this arguments don't convinced me.
Post by Pierre Aronax
Post by Pierre Aronax
is put on the same side with the actual Constitution of
the Kingdom of Saxony,
The "actual" constitution of the kingdom of Saxony, like that of the
ancien regime of France, is obsolete.
Obsolete in what sense? In the sense that Saxony is no more a kingdom? In
that sense, there is no heir at all, neither Afif nor anybody else.
Otherwise, if you look for a claimant for the kingdom of Saxony, but want to
find it according to other rules than the constitution of the kingdom of
Saxony, I really wonder what are this rules.
Read reports of the declaration of the 1997 accord among the living
male dynasts of the royal house of Saxony.
Could you say a little more, it will save time?
Post by Pierre Aronax
Or is the claimant simply the
one who is chosen by the previous claimant? Strange conception of historical
claim!
Strange it is. But no more so than that someone seriously asserts that
he is the legal claimant to a monarchy his ancestors renounced by
international treaty 300 years ago to obtain another monarchy, then
abandoned the first monarchy for the other which they still retain.
But life is full of strange things, isn't it?
In the case you speak about, the argument of the said claimant is that the
renounciation was not valid. This can be discussed, but there are some good
points in his favour. I see no point of that kind for Alexander Afif: on
what article of the Saxonian Constitution, on what part of the House Law is
his right to succeed to the claim based exactly?
Post by Pierre Aronax
Whereas it is debated whether
the 1776 prammatica of Spain is still in force.
In force for what? For what is of its prescriptions on titles of nobility,
transmission of names etc. it is obvious that is is no more in force. For
what is of the royal succession, it is ruled only by the constitution, which
makes no mention of the pragmatica.
Really? Where do you find this principle that in monarchies with
constitutions the succession is *only* ruled by what is spelled out in
that constitution?
Do you consider that in Constitutional monarchies something else than the
Constitution can determine the succession when the Constitution rules how
the succession work?
Have you studied Luxembourg's succession lately?
Could you be more precise? For what I read, the succession in Luxembourg is
ruled by the Constitution, which states that the throne is hereditary in the
House of Nassau, in accordance with the Familial pact of 1783 and article 71
of the Congress of Vienna. What that means exactly can have been object to
interpretations, but this interpretations were in the boundaries of the
Constitution, which says only that the succession must be conformed to this
texts.
Post by Pierre Aronax
To Carlist legitimists, the 1876 and 1978 constitutions of Spain were
without legal value;
Then the carlists can perhaps consider Louis-Alphonse as their claimant, but
I don't think there are many carlists of that kind today.
Not many, agreed. But then there are not many legitimists of any kind
today.
In France today, they are probably more or less as many legistimists as they
are orleanists
Post by Pierre Aronax
to Jacobite legitimists that of 1688 was without
value; to French legitimists, that of 1830 was without legal value;
Indeed. We agree at least on that (except of course that there is nothing
like a 1830 "Constitution").
and to you as a continental European, a constitution is "something
like a Kleenex, useful, but disposable. When we are tired of a
Constitution, we make an other one an that's all..."
As rather as a French republican. As a French royalist I would have other
feelings, but not about a "Constitution".
Next time you feel driven to point out other people's contradictions,
take a look at your own first. If as a "French royalist" you find
constitutions disposable, what is the true basis of your belief in
which monarch has the best right to reign over France?
I mean that "Constitution" in the sense of a sacred text has no meaning for
a French royalist: what is important is French royal tradition, not a
Constitution: French monarchy had never any Constitution (except briefly
during the Revolution).
Post by Pierre Aronax
Opinions about
the current status of dead monarchical constitutions are on-topic to
consider here, and we frequently speak of them as if in the present
tense. Welcome to ATR!
So, what is your point? That the margrave can change the constitution by his
own volition?
My point was clearly expressed in my statement.
Perhaps it was not so clear. Was it or was it not that the margrave, or the
margrave and some members of his family, can change the rules of succession
as written in the Saxonian constitution as they wish?
Try re-reading it,
Pierre, instead of re-wording it. Hint: I no more believe the Margrave
can change the constitution by his own volition than I believe the
French legitimist claimant can ignore the constitutional requirement
to remain French to remain a dynast.
This question of the French succession seems to interest you greatly. But
the "requirement" you speak about is not a "constitutional" requirement
since no Constitution ever said something like that. And scholars do not
agree on the fact that it was indeed a requirement. Louis XIV, for example,
did not agree with you since he considered is grandson and the son of his
grandson as dynasts, at least until the treaty od Utrecht, despite the fact
they had become Spaniards.

Beside, the French legitimist claimant is French and he has always been.
Could we go back to the Saxonian succession now?


<...>
Post by Pierre Aronax
Why would your opinion about their dynasty be more relevant than
theirs?
I don't say mine is more relevant: I say it is no less relevant. I can no
more change the rules than they can.
It is you who claim that the rules are being changed rather than
interpreted -- exactly as Bavaria's dynasty has done.
Really?
I suggest you
re-read Saxony's rules to see if you find your name alongside that of
the sovereign de jure as arbiter of how marital standards are
interpreted and applied in the royal house of Saxony.
I don't find my name, but neither do I find the article where it is said
that the sovereign can decide what marriage is ebenbürtig and what is not.
Can you be more specific? For what I read (but I am certainly not fluant in
German), the Constitution and the House law says only that the marriages
have to be equal, not that what equality is is decided by the sovereign.



Pierre
Francois R. Velde
2003-07-29 21:04:39 UTC
Permalink
Post by Pierre Aronax
Does the Constitution of Bavaria or the House
law of the Wittelsbachs say that the bride of a Bavarian prince has to be
ebenbürtig, as the House law of the kingdom of Saxony do? I have not checked
but I don't think so.
It requires it only for the issue to have succession and familial rights,
just as in Saxony (the house law of Saxony does not require a marriage
to be equal):

Constitution of 1818, Title II, art. 3:
"Zur Successions-Fähigkeit wird eine rechtmäßige Geburt aus einer
ebenbürtigen mit Bewilligung des Königs geschlossenen Ehe erfordert."

House law of 1819, Title I, art. 1:
"Das Königliche Haus begreift:
(a) alle Prinzen und Prinzessinnen, welche von dem Könige oder von einem
Descendenten des gemeinschaftlichen Stamm-Vaters des Königlichen Hauses,
durch anerkannte, ebenbürtige, rechtmässige Ehen, in männlicher Linie
abstammen ; (b) die Gemahlinnen der Königlichen Prinzen und ihre Wittwen,
während ihres Wittwenstandes."

See
http://www.heraldica.org/topics/royalty/HGBayern.htm
Post by Pierre Aronax
Have you studied Luxembourg's succession lately?
Could you be more precise? For what I read, the succession in Luxembourg is
ruled by the Constitution, which states that the throne is hereditary in the
House of Nassau, in accordance with the Familial pact of 1783 and article 71
of the Congress of Vienna. What that means exactly can have been object to
interpretations, but this interpretations were in the boundaries of the
Constitution, which says only that the succession must be conformed to this
texts.
But these texts are of no use whatsoever at present. The succession is
ruled by a law of 1907 which is not cited anywhere in the constitution.
--
François R. Velde
***@nospam.org (replace by "heraldica")
Heraldica Web Site: http://www.heraldica.org/
Uwe Schollmeyer
2003-07-22 08:14:41 UTC
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Post by Charles Stewart
From a modern point of view, what is the point of having three
co-claimants to headship of the juniormost Saxon branch, which is
itself extinct? It does not appear that any significant dynastic
fortune is at issue, nor property,
Surely there are substantial claims in respect of property, particularly
works of art? These are in litigation / negotiation, are they not?
Guy Stair Sainty
www.chivalricorders.org/index3.htm
Please attribute your quotes correctly. Thanks.
Charles Stewart
2003-07-23 02:16:04 UTC
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Post by Charles Stewart
From a modern point of view, what is the point of having three
co-claimants to headship of the juniormost Saxon branch, which is
itself extinct? It does not appear that any significant dynastic
fortune is at issue, nor property,
Surely there are substantial claims in respect of property, particularly
works of art? These are in litigation / negotiation, are they not?
If so, I can't imagine that the headship of the house has anything to
do with any allocation or lawsuit outcome. Rudiger and his step-mother
have already received some property and artworks from the East German
government, so clearly dynastic status is not a criterion. The
Margrave has adopted Alexander, but only his personal property would
devolve to him and that will be the case regardless of who is or
becomes head of house dynastically.

Charles Stewart
G. v. Studnitz
2003-07-25 04:30:20 UTC
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marlenekoenig wrote:


Marie Auguste of Anhalt
adopted a number of adults for cash.<
most notoriously a certain Hans-Robert Lichtenberg, who now calls
himself Prince Frederic von Anhalt (whereas legally he would merely be
named Frederic Prinz von Anhalt), whose wife Zsa-Zsa once grandly
proclaimed that if Germany were a monarchy today, Freddy would be
Kaiser.
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