Section IV:
Independent Orders
(AS SEEN BY THE CANON LAW AND ITALIAN PUBLIC LAW)
In this part, we will study the juridical situation of the Independent Orders – or as they are commonly or conveniently known "CHIVALRIC ASSOCIATIONS". Amongst the experts of History and Juridical Law of Chivalry, there are two tendencies:
The first opinion seems to accept them as private chivalric associations, maintaining that in the olden times every knight had the right to create other knights, and more so because a group of gentlemen, constituted <
However this makes it evident that the Titles and Decorations conferred by these Orders have only a private status value, not only, that these Orders themselves “enter in the Chivalric Catalogue among the Private Law Institutions” This will be explained later on.
In the second opinion another group of learned historians and jurists oppose this opinion; in fact these Maintain that in modern states the public Law takes precedence of the Private Law. The first natural question is how to define and qualify an Order as “Independent”?
The term “Autonomous” is not adaptable, because autonomy must be recognised by an Organ of Universal Character; in this case no other than The Holy See, who is not inclined to exercise this function.
Some others suggest the term “MAGISTRAL”. But the only Magisterial Order, which is held by a Sovereign Grand Master, is that of Saint John of Jerusalem, Rhodes and Malta.
Others tried to adopt them “Ordini Capitolari” to indicate the Order of Malta and the Independent Orders, when having no Grand Master, they are governed by a Council. But even this denomination is not correct. S.M.O.M. is governed by the Council only until the election of the Grand master.
It is legally accepted that a constultative organ next to the Supreme Power, is invested by this power during the time when the “SEDE VACANTE” which menas when the Supreme seat is vacant. This is typical in the Church “Pope – College of Cardinals vis a vis the Central Power. In the Dioceses: “Bishop – Cathedral Chapter”. Therefore, although the Council does not anymore elect the Bishop – this regime, more than Capitolare, is the regime of the monarchical Church. Therefore I cannot see how we can recognise a Capitolar Organ in the Independent Orders – for in this case there is the name but definitely not the substance.
According to the juridical dogma of out times especially in Italy, the Chivalric Orders of the State are Juridical Public Persons (Moral Persons), thus seems to be the opinion of “RANELLETTI” and many other authoritative publicists. Therefore, the state cannot give its recognition, thus putting them in the same juridical parity to that of the Chivalric Orders, whom the eyes of the Law (to which they form part) have the same requisites, which means they would look as a public juridical person. Those who chose to distinguish between the public use and the private use, and therefore adopting the category of the “Private Orders” are off the right track. These Orders or Associations may perhaps be called private orders or private associations but definitely would never form part of the “Diritto Privato” or Private Law.
Professor Antonio Padula writes “Honours not recognised by the Italian State, cannot be considered “PUBLIC”, (quoting a sentence by the Camera di Consiglio della 10a sezione of the Tribunale Penale of Rome, on the 25 JULY 1937-XV). Antonio Fonzi, President of the 10a Sezione del Tribunale Penale di Roma, on the 24th day of July 1937, pronounced a sentence concluding “In Italy one cannot give juridical value if not to Chivalric Orders legitimately recognized by the Italian Government”. Comm. Franco Manfredi, another learned Lawyer, publishing an Ordinance of the Pretura Unificata of Naples, Ordinance pronounced on the 10th of June 1935, by the Pretore mastrostefano, assert: “A Chivalric Order that is not recognised by the Italian State, or by the Pope, could not be other than an Independent, autonomous and Private Order”.
Another learned Lawyer Impollomeni, is of the opinion that: “Chivalric honours, and Noble Titles, not conferred by a King, or by some other authorised Institution, have only a private character and never public. By this concept one has to admit the extension of the Jus Honorum (Fons Honorum) to private persons, may not only give them the right to confer Chivalric Titles, but also to give noble Titles. It is held instead that, if it is admissible that a dispossessed Sovereign could preserve the faculty to create knights in those Orders that do not belong to the Crown but to his Dynasty, one cannot think that, He, dispossessed of his territory, can create nobles, and therefore that this faculty can be exercised by a private person - Pretore del Mandameto Advocate Luigi Peloso d’Iscia on 11th April 1936 – XIV, issued an Ordinance saying: “A non recognition, has the consequence to impossibilitate, to exercise the relative prerogatives to the Title; and precisely will impede the correlation of the same to the official or recognized titles”.
According to Cinqetti in his publication “Valore Juridico degli Ordini Equestri Pontifici, esteri ed indipendenti (riconosciuti o non riconosciuti) nel Regno d’Italia” Milano 1938:
“The non recognised Equestrian Orders in Italy do not have any juridical value, but simply a non public or private character. The holders of such orders, decorations, cannot therefore use their titles such a “Chev” or “Comm” without describing after their title, the order to which they belong. According to others, this is also dubious, because of the disposition of Art. 498 C.P., which in conjunction with Art. 80 of the Statute of the Italian Kingdom, which states that “It is prohibited to receive from a “foreign country” without the permission of the King, taking in consideration that the preventive authorisation, as is well known, today is normally substituted by a later confirmation.
The Statute speaks of a “Foreign Country”, therefore, it must be a juridical person or physical person holding Sovereignty, or at least has exercised the sovereignty in the past”.
According to the opinion quoted above therefore, besides those orders that are considered to form part of the Public Law or International Law there exist no other orders.
To conclude, quoting G.Bascape P. 263 (G. Bascape, Milano, Casa editrice CESCHINA) it is right to state, that, neither in Canon law nor in the Italian Jurisprudence “Outside the Public Law there can exist no Orders of Chivalry”. The “Jus Honorum” cannot emanate if not from a Sovereign Sate or Person, at least by Title, and in consequence the private associations who assume names and decorations of the Old Equestrian Orders or Military Orders that are extinct, are destined to extinguish themselves, unless they will obtain from the Holy See or from a Sovereign State or at least from a deposed Sovereign, an explicit juridical recognition and valid Protection (Tutela).