By Göte Appelberg LLD
On the 14th June 1853 a historical family pact was made by which the heads of all the branches of the family in a document unanimously recognised Don Mario as head of the family. Don Mario was the son of Don Giovanni, the younger brother of the Duke of Carcaci, and Donna Eleonora Princess of Emmanuel, who also descended from King James I of Aragon. Don Mario was therefore the only one in the family descended from King James I on both his paternal and maternal sides. .
This family pact was ratified by a decree on the 16th September 1860 by H.M. King Francesco II of the Two Sicilies. In the decree it was specified that the order of succession should be through the eldest son born of legitimate marriage. In the absence of sons the order of succession would go through the eldest daughter to her eldest son, if both were born of legitimate marriages and so on, though not further than the fourth generation. In this decree Don Mario was also recognised as the Sovereign Grand Master of “The Dynastic Order of the Collar dedicated to Saint Agatha, Virgin and Martyr, the indisputable patrimony of the Most Serene House of Paterṇ".
On the 13th March 1952 the Court of Bari tried the case of the Prince of Emmanuel, Don Francesco Mario Paterṇ Castello di Carcaci (grand-father of the Present Grand Master of the Order) and his right to confer nobiliary titles. The verdict contains several issues worthy of notice
Firstly, the Court says that Don Francesco is the legitimate heir to the throne of Aragon by specifically recognising the Will of James I of 1272. The Court stated : “By a brevet of King James I, which called upon the closest branch of the House of Aragon to succeed him in ruling over the Kingdom, and by the current complete and utter extinction of all the various branches of that family, the claim to this throne moreover is a legitimate one which is made by the Paternó who are indeed a branch of the house of Aragon and are its last representatives”.
Secondly, the Court says that Don Francesco has the right to ennoble, to grant and confirm coats of arms, to bestow titles drawn from places over which his ancestors had exercised their sovereign powers and also the right to found, re-establish, reform and exercise the Grand Magistry of the Orders of Chivalry conferred by his family, and recognizes him as a legitimate fons honorum.
On 5th June 1964 in the Tribunal in Pistoia (equivalent to a court of appeal) the case was tried of the MOC in relation to the Italian law of 1951 which prohibits the wearing and granting of false orders and decorations. The verdict confirmed the previous decision of the Court of Bari in 1952 that the present Grand Master's grand-father was the legitimate heir to the family’s right to confer Orders and nobiliary titles and that the conferring of those were not contrary to the law of 1951.
On the 9th May 2003 there was published in nr 19 of the Gazzetta Ufficiale della Regione Siciliana the decision of the permanent Arbitration Court in Ragusa. The Official Gazette is a Gazette published by the Republic of Italy for the announcement of court decisions and administrative rulings. The arbitration, pronounced 8th January 2003, was about a matter between the Higher Institute of Nobiliary Law and Mr Francesco Nicola Roberto Paterno Castello di Carcaci (Italian courts do not use Royal or nobiliary titles to designate persons).
This is the third time an Italian Court has tried who is the lawful Head of the Royal House of Aragon and carrier of its dynastic rights as jus majestatis and jus honorum. Earlier the Tribunal of Bari in 1952 and the Court of Appeal in Pistoia tried these matters in 1964. In these Courts the matters were tried according to the procedure of criminal law. The now published arbitration follows the procedure of civil law. This means the decision is primarily binding for the contending parties. This is so particularly regarding the binding parts and the fulfilment of certain obligations. In the parts where the decision is stipulative, e.g. establishes a specific status, it has also legal force in regard to third party, authorities and other official bodies. The decision is final and without appeal.
In the court decision the court initially stipulates that Mr Francesco Nicola Roberto Paterṇ Castello di Carcaci is as direct descendant the legitimate heir and pretender to the Throne of the last Sovereign of the Royal House of Aragon. He is therefore carrier of the qualities then listed by the court, the rights and the privileges, that is,
a) the quality of Royal Highness and Royal Prince of the Royal House of Aragon, Majorca and Sicily;
b) the right to designate himself Sovereign and Head of Name and Arms of the Royal House of Aragon, Majorca and Sicily, never renounced, with the right for himself and his successors for an unlimited period whether male or female, to all the qualities prerogatives, attributes and styles of that rank and with the ability to use coats of arms, titles and designations which belong to him by hereditary right,
c) the nobiliary style of Nobleman of the Dukes of Carcaci, Prince of Emanuel, Duke of Perpignan and by the Grace of God and hereditary right, as legitimate Pretender to the Thrones of Aragon, Majorca and Sicily, the titles of Prince of Catalonia, Count of Cerdagne, Count of Roussillon, Patrician of Catania, Lord of Valencia, Lord of Montpelier, Count of Urgell, Viscount of Carlades etc, etc, Sovereign Grand Master of the Military Order of Saint Agatha of Paterṇ, Grand Master of the Royal Balearic Crown, Grand Master of the Royal Order of James I of Aragon, Grand Master of the Order of San Salvador of Aragon and of the Royal Aragonese Order of the Knights of Saint George and the Double Crown.
d) the sovereign prerogatives known as jus majestatis and jus honorum, with the ability to confer nobiliary titles, with or without predicates, noble arms, honorific titles and chivalric distinctions relating to the hereditary dynastic Orders,
e) the quality of a subject of international law and of Grand Master of non-National Orders within the terms of the Law of the 3rd March 1951, No. 178.
f) the present judgment, which has an irrevocable character under Italian Law, takes effect, as the responsibility of and at the expense of the interested party, in the territory of those States which have signed the New York Convention of the 10th June 1958, which was effective in Italy by virtue of the Law of the 19th January 1968, No. 62 (Official Gazette of the Republic of Italy of the 2nd of February 1968, No 66);
g) the annotation, by right or by choice, on the baptismal register, retained in the territorially appropriate parish church of the Catholic Church of the text that follows: His Royal Highness the Royal Prince Don Francesco Nicola Roberto Paterṇ Castello di Carcaci, of Aragon, Majorca and Sicily;
It is of particular interest to note that the court under e) certifies the position of H.R.H. as Grand Master of non-National Orders in the sense in which this term is used in the Italian Law nr 178 of 1951. The Tribunal in Pistoia, which arrived at the same conclusion, also tried this issue. This means that the honours and awards given by H.R.H. and the insignia worn by members of those Orders are not included in the prohibition made by this law.
The court also lays it down that this arbitration is regulated by the New York_Convention of 10th June 1958 regarding the recognition and enforcement of foreign arbitral awards (note 1). This means the judgement has international legal force and can be carried out in all those countries having signed the Convention. These include all countries where the MOC is established. The status according to family law and the status as Grand Master of the dynastic Orders listed in the judgement of H.R.H. the Duke of Perpignan are thereby legally certified. It is therefore correct to say e.g. that the MOC is an internationally juridically genuine / recognised / proper / legitimate dynastic Order.
Another question of interest in this context is to what extent an Order’s direction of activity and content can be changed without disturbing its status as genuine/recognised/proper/legitimate.
In regard to dynastic Orders there is usually a clause in the Statutes that the Grand Master, by virtue of fons honorum, can reform the Order and change the Statutes. This is also the case with MOC (General Statutes, Chapter 9, Article 29). It is also noteworthy that on our part we have court rulings verifying both the legitimacy of the MOC and the position of HRH the Duke of Perpignan as a fons honorum both from the time before and after the current Statutes came into force. As far as the MOC is concerned it has thus been made clear that both the Statutes and the present direction of the programme are parts of its status as a legitimate dynastic Order.
The question of the position and status of HRH the Duke of Perpignan has in a profound and extensive manner been investigated by Professor Emeritus of Law Jacob W F Sundberg, Director of The Stockholm Institute of Public and International Law (IOIR, http://www.ioir.se/ioireng.htm), for many years Professor at the University of Stockholm and regarded as one of Europe’s foremost experts on issues of public law. In his formal opinion he treats and answers the question what it may involve within the framework of traditional European public law that HRH don Francesco by the International Court of Arbitration in Ragusa has been recognised as a subject of international law. Professor Sundberg’s conclusion is that ”As far as the head of a dethroned, formerly ruling princely house is concerned, in this particular case the Royal House of Aragon, Majorca and Sicily, which was once of massive importance in the Western Mediterranean, has had its position as a subject of international law recognised, this should imply that the person concerned may on this account be considered as having rank equal to a head of state and such rights and obligations which go with it”.
The opinion in its entirety can be found on the Archive page of this web site.
Note 1: According to article 1 subsection 3 of the Convention every State can make a reservation to apply the Convention only on the recognition and enforcement of awards made in another contracting state (reciprocity). Reservation can also be made to apply the Convention only to differences arising out of legal relationships, whether contractual or not, which are considered as commercial under their national legislation. Such reservations have been made by e.g. USA, France, Norway, Switzerland, Germany and the Netherlands.