Post by ***@hotmail.comPost by CJ BuyersPost by p***@hotmail.frGood question! As I try to say from time to time, it would be useful to
clarify about what all this is: the succession to the headship of the
House of Savoy, to the titular crown of Sardinia or to the hypothetical
titular crown of Italy. All those claims does not necessarily operate
in the same way.
The answer is relatively simple, as I have explained in a previous post
above. Legally speaking Italy wasn't a new state, it was "Greater"
Sardinia renamed as "Italy".
As is obvious from the previous post by Charles Stewart, the laws of
the House of Savoy and the Kingdom of Sardinia were one and the same.
That is absolutely correct since the Albertine Constitution was simply adopted
by the new Italian state - one of the few changes made post unification was in
regard to nobiliary jurisdiction; the new monarchy made an effort to unify the
system which had varied across Italy. This was not very successful and has led
to many anomalies - further more a good number of old noble families chose not
to submit themselves to the checks and proofs demanded by the new authorities,
which meant they did not appear in some of the provincial listings or the two
versions of the Elenco Ufficiale della Nobilta Italiana produced post WWI.
Post by ***@hotmail.comThe House of Savoy obviously followed other rules in a more remote
past: it is difficult to imagine that the historical succession to the
headship of a family whose leadership goes so far back in the past can
be bound by a rococo legislation of the late 18th century.
That is true, and of course the dukedom of Savoy was an Imperial title, as were
several of the Italian subsidiary titles, while Sardinia had been acquired in
full sovereignty. But as Charles Stewart has pointed out, Victor Amadeus I had
to keep his marriage to a lady from the lesser nobility secret for a year,
although there were strong protests when he published it which led to it being
de facto morganatic (although such a legal principle did not formally exist in
the non-German states of the Empire). I would differ with Charles Stewart over
his conclusion that these led to his departure for Chambery - he had already
decided to give up the throne before publicising the marriage - but the royal
family and court were outraged at the suggestion that the publicastion of the
marriage would lead to it beign treated as "equal" and the bride as Queen. What
is interesting here is that the "secret marriage" was something that also
existed in France (Louis XIV's second marriage, and the father of Philippe
Egalite), and was intended so the king or prince could regularise a situation
that left him in grave sin without giving the lady in question any of the titles
or precedence she would enjoy as his wife. In none of these cases was any issue
born of the marriage so it is impossible to state with certainty that such issue
would not have enjoyed dynastic rights, but I believe the answer is probably not
- at least any claim to such would not have been acknowledged by the Crown.
There are examples in German families where such marriages did not confer eqwual
status on the wife nor dynastic status on the children - the treatment of the
wife of the Elector Palatine Friedrich I, Klara Tott, whom he married after the
birth of his son (founder of the family of Loewenstein-Wertheim), is a good
exmaple where there was not a formal contract of morganaticisation but where the
Elector was forced, by family and other pressures, to declare the issue
incapable of succession and his wife unentitled to royal styles, and rexognise
his nephew as his heir. The
One may also consider that the dynastic law that governed the house of Savoy
preceded the promulgation of the 1780 patent, and (like that of France) was
based on long standing historic precedent. Of course one may consider that the
succession to the duchy of Savoy was ruled by the terms of imperial investiture,
but that is not true of many of the other territorial titles of the family,
which passed to Carlo Alberto, despite him being 13 degrees of consanguinity
removed from his predecessor. Thus one may consider that the system of salic law
had been imposed even on these successions, by family traditions which had
become dynastic law.
One may conclude therefore that the treatment of Prince Eugenio-Ilarione of
Savoy-Carignano was in accord with established dynastic principles and not a de
novo principle imposed by an autocratic monarch.
Post by ***@hotmail.comFor what is of the distinction Sardinia/Italy, you may be right and I
have no opinion on the subject, but others, who may be wrong, obviously
disagree and think the post-Risorgimento Italian kingdom was not
concerned by rules concocted for the kingdom of Sardinia and was only
ruled by its own constitution.
The Italian Civil Code of 1942 (still extant and not repealed, although in
modern reprinting of the code this article is only given in its title) by
article 92 (formerly article 65 of the Italian Civil Code of 1865) states,
"Marriage of the King (Emperor) and the Royal Princes" then "The Kings consent
is a necessity for the validity of the marriages of Royal Princes and
Princesses. Thus what already existed as a principle of dynastic law was now
also incorporated into the system of state law.
I am quoting from a scholarly text (by Professor Franco Adami, of the University
of Ferrara) here:
In consideration of the "Royal Patents of 13 September 1780 and 16 July 1782
proclaimed by the King of Sardinia, Vittorio Amadeo III of Savoy (in Raccolta
per ordine di materie delle Leggi, Editti, Manifesti ecc. pubblicati dallanno
1681 sino agli 8 dicembre 1798, ed. by F. Amato Duboin, Vol. VII, Vol. IX ,
Turin 1831, pp. 49-54). The first of these which anticipated more generalized
measures on the subject of marriage and was issued two years later by means of
the second contained a series of dispositions exclusively for members of the
Royal House. On the whole, it consisted of two basic principles: the first being
the general regulations, while the second appeared to be a hypothetical special
case termed as aggravating. Above all, it established the fundamental
principle, according to which it is unlawful for Princes of the Blood to enter
into marriage without first having obtained Our permission, or the permission of
our Royal successors, and should any of these fail in his imperative duty he
shall be subject to proceedings which we or our Royal successors consider
fitting in his case. In view of these terms and it is self-evident that here
we have the case of a marriage between equals, though unauthorized it
likewise becomes evident that the Sovereign (Head of the House) possesses the
right to deal with such proceedings according to each individual case and to
apply whatever sanctions he deems most appropriate. The second is that of a
marriage which has not only not been granted the royal consent, but which is
moreover a marriage where the parties are unequal if in the fulfilment of
this obligation there also exists the quality of marriage with a person of
inferior condition and status, both contracting parties and the descendents of
the said marriage must consider themselves dispossessed of all property and
rights deriving from the Crown and any claim to succeed to same , and likewise
all distinctions and prerogatives of the family. In this case the sanction is
not left to the Kings discretion (who would also be unable to apply it in the
case of marriage between peers) but it is expressly and unavoidably foreseen in
the norm which functions as a sort of latae sententiae penalty, i.e. as though
sentence had already been pronounced, and where, for the sole fact of having
celebrated the marriage, the penalty is incurred without the necessity of any
provision to inflict it."
Continuing this same text:
"Regie Patenti at 16 July 1782; likewise issued by Vittorio
Amedeo III, contains a disposition to this effect in §10, which concerns
marriage of the Princes of Our House. Here we find express confirmation of the
principle in the very same interests: essentially the decorum of the Crown and
the good of the State, and for this reason it is claimed that they (the said
Princes) cannot therefore enter into marriage without the permission of the
Royal successors adding, with reference to the Patenti of 1782, the same
sanction previously provided in this text. Here we have explicit reference both
to the good of the State and to the decorum of the Crown which, in regard to
the Patenti of 1782 (as we saw in those of two years before) allows us to
differentiate the hypothetical case of a marriage between peers which must
first have the Sovereigns approval since there may a possibility of causing
damage of a political nature (e.g. marriage with a Prince or Princess of a
Reigning House with which the country is at war); and also the case of an
unequal marriage which might particularly jeopardize the prestige and honour
of the Dynasty. On the other hand, official disapproval of marriage with
persons of inferior rank had remained linked to the mediaeval Consuetudines
feudorum, where we find the ruing that children procreated from a wife minus
nobilis were considered unfit to succeed to feudal property: licet legitimi
sint, tamen in beneficio nullatenus succedunt (cf. VACCARI, item: Matrimonio
morganatico in Nss. Dig. It., vol.X, Turin 1964, p.439). The concept of a
marriage which regards one of the contractors as unworthy (this has a much
wider scope in respect to Dynastic law, but also applies here) was succinctly
stated in the 17th century by Cardinal Gian Battista de Luca (Theatrum veritatis
et iustitiae, Romae 1669-1677, lib. VI, [disc. = disciplina ? = disposition]I,
n, 24 p.4, as well as [disc.] CXLII, n. 21, p. 216) when, as an illustration of
the verior ac recepta view, he wrote that indignus dicatur ille cui mulier,
attenta progenie, divitiis, moribus, aliisque circumstantiis, absque parentum ac
parentelae dedecore copulare non potest. This explains the intervention of
many legislators, especially in the 18th century when unequal marriages were
on the increase, in an attempt to put a stop to marriages between nobles and
non-nobles by means of heavy sanctions. On this matter we may recall the law of
the Duchy of Modena 12 July 1740 (included in the Modena Costituzioni of 1771)
which provided for the deprivation of noble status and rights of succession for
young nobles who married beneath them against their parents wishes (cf.
LOMBARDI, Matrimoni di antico regime, Bologna 2001, p.400, note 84). The same
might be said of Spain where the above mentioned Pragmatic Sanction went so far
as to extend this same disposition - originally intended as a warning for the
Infantes - to the Grandees of Spain. In the Kingdom of Naples legislation to
prevent unequal marriages was contained in the Pragmatic Sanction of 10 April
26 June 1771, followed by another two in 1780 and 1783 (in Nuova collezione
delle prammatiche del Regno di Napoli, ed. L.Giustiniani, Naples 1804, pp.
205-212); the same occurred in Austrian Lombardy where, in the edict of 17
September 1784 the Costituzione on marriages was published; this declared
marriages between minors without the fathers consent radically invalid but
null and void (cf. GUERCI, La sposa ubbediente. Donna e matrimonio dellItalia
del Settecento, Turin 1988, pp. 184 ff.)."
"Article 3 of the Regie Patenti of 13 September 1780, states that when however
the reflection of some particular circumstance might determine us, or our Royal
successors, to allow an unequal marriage to be contracted, in this case we
reserve the Sovereign authority to prescribe to this effect the restraints and
conditions which must be observed.. The application of this provision to the
marriage, in France, of Prince Eugenio Ilarione di Carignano-Villafranca to
Elisabetta Anna Magon Boisgarin under the Regio Brevetto of 28 October 1780,
offers considerable clarification of the above situation: The Royal concession
of being able to rehabilitate, for reasons of conscience or other, the
marriage invalidly contracted by him, was restricted to the sole person of the
Prince, and to none other. He alone was allowed to retain and keep - but, be
it noted, not to pass down to his children - the rights of succession,
prerogatives and distinctions of the family.
"Vittorio Amedeo IIIs Regie Patenti, the religious regulation of marriage was
assumed as still being in force and applicable, in respect to which a Catholic
Sovereign had no power to interfere. If, according to Tridentine procedure, the
sacrament of marriage from a canonists point of view was perfectly valid, and
independent of the consent of any third party, the Head of the Royal House was
obliged to impose sanctions which, although powerless to nullify the validity of
the union, could bring influence to bear (in a negative sense) on the personal
position of the Prince contracting the marriage. In special cases the King, when
confronted with an unequal marriage, could concede the celebration of the
marriage in morganatic form (but, as we have seen, only in an express and
formal way). But if the Sovereign refused his consent the sanction resulted in
the removal of the Prince from the Royal Family, with attendant loss of every
right and prerogative he had enjoyed as a Member."
It has been argued that the Civil Code and the introduction of civil marriage
invalidates the Royal Patent of 1780/82. But that supposes that there is a
conflict between the two. It was impossible for a decision of the king to
withhold consent to invalidate the marriage from a canonical point of view, nor
did the marriage itself become invalid from a civil viewpoint, but only from a
dynastic point of view.
--
Guy Stair Sainty
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