The International Commission on Nobility and Royalty
SOVEREIGNTY: Questions and Answers, Part 2
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This article focuses on deposed monarchs --- the "de jure," internal or non-territorial sovereignty of authentic and genuine royal houses. The concepts and principles of law explained herein are not to be confused with the requirements for reigning houses that possess defacto rule although many of the fundamentals apply to both.
Each of the questions and answers below, although specific to the inquiry made, are also designed to be more or less complete in regard to the idea of how internal non-reigning sovereignty can be preserved forever or irretrievably lost. The articles as a whole add tremendous evidential weight to the legal rights and royal privileges of non-reigning royalty.
"De jure" or legal sovereignty is extremely important to the field of nobility and royalty. Without these priceless rights and entitlements, eveything is make-believe and fantasy --- nothing is real. The reason for this is that no sovereign rights means there is no "fons honorum" or right to honor, which means no authentic or genuine orders of chivalry are possible. In other words, no sovereignty means no right to use the royal prerogative, because there is no royal prerogative.
/browse/royal#wordorgtop) It is now generally used to describe monarchs of large territories and their close family members, but in the past, it always revolved around "the office, state or right of a king," which is sovereignty. (A Compendious Dictionary of the English Language, "Royalty" & "Royalties," 1806) ". . . The nation has plainly and simply invested him with [all the glory of] sovereignty . . . invested with all the prerogatives. . . . These are called regal prerogatives, or the prerogatives of majesty." (Emerich de Vattel, The Law of Nations, Book 1, chapter 4, no. 45) Thus, a king or sovereign prince has ". . . in his own person all the rights to sovereignty and royalty. . . ." (William Rae Wilson, Esq., Travels in Norway, Sweden, Denmark, Hanover, Germany, Netherlands, &c., Constitution of the Kingdom of Denmark (1826 time frame), appendix no. 16, article 6, 1826, p. 72) No one else in the kingdom has all these rights in their fullness other than the king or ruling prince. Royalty belongs only to monarchs and close family members -- not to distant relatives or offshoot lines, who are not dynasts and have no succession rights.
It is important to understand that you can have true sovereignty without royalty, as in a republic and other forms of non-royal government, but you cannot have royalty without sovereignty as it is the highest and most importance secular right on earth above all others. The subordination and dependence of royalty, or sovereign grandness, on sovereignty itself is of great importance to discern what is fake from what is genuine, true and authentic. All royal rights come from and grows out of the rights, entitlements and privileges of sovereignty. A king or sovereign prince is royal only because he holds these sovereign rights.
The president of a republic, especially in modern times, may actually be more powerful than any king that ever lived, yet he is not a sovereign, nor does he hold any kind of regal status. A president is merely a representative of his nation or country and nothing more. Whereas, a monarch is a royal, because he is the personification of all the glory of sovereignty over the people or the land of his forefathers. This is to be the embodiment of something grand and exalted.
Thus, royal rank and status are "the [exclusive] prerogatives of sovereignty," the "emblems [or symbols] of sovereignty," and the "embodiment of sovereignty." (Webster's Third New International Dictionary, unabridged, Philip Babcock Gove, ed., "royalty," 1961, p. 1982) Sovereignty is, therefore, a central concern or core issue --- crucial to all the privileges and honors that go with it.
All of the following regal rights are inseparably connected to reigning and non-reigning sovereignty. Some of the qualities are inactive with monarchs, who are limited or deposed, but all true sovereigns hold all the following rights either in abeyance or in an active state:
(1) Jus Imperii, the right to command and legislate,
(2) Jus Gladii, the right to enforce ones commands,
(3) Jus Majestatis, the right to be honored, respected, and
(4) Jus Honorum is the right to honor and reward.
The above rights are inseparably connected as fundamental attributes of sovereignty. If legal internal sovereignty is lost or forfeited, there are no royal (grand, exalted or special) rights left. In other words, all the special qualities of royalty are lost if sovereignty is lost.
There are many royal families on the earth, who have legally maintained their sovereign status even though they no longer are in power reigning over a territory, kingdom or principality. For example:
There are in all more than forty sovereign houses of Europe, but all do not reign over independent lands or principalities. Although many of these houses possess only the title of sovereignty and the right of royal privileges, they are equal in rank to all reigning houses, and their members intermarry freely without loss of title or rank. (George H. Merritt, "The Royal Relatives of Europe," Europe at War: a "Red Book" of the Greatest War of History, 1914, p. 132)
In other words, deposed sovereignty is never ending, but we must add that the royal rank is maintained or lost by the rules and principles of "prescriptive" law. If the rules are not followed, royal status is irretrievably lost, which means all regal rights and privileges are forfeited. A person who has no rights cannot restore or pass on to posterity something he does not have.
Those who say that dynastic rights of deposed houses, which is de jure internal non-territorial sovereignty, cannot be lost, except by perhaps by debellatio, really have no idea what they are talking about. Sovereignty and royalty can be permanently lost in many different ways, not only for individuals and their posterity, but for whole dynasties:
A. Abdication and/or renunciation
B. Dereliction and neglect
C. Cession by treaty, will or some other arrangement
D. "Inter-vivos" transfer, sale or mortgage in ancient times
E. Tyranny, oppression or crimes against humanity
F. Papal or Imperial confiscation of all royal rights and instituting a new dynasty
G. Abandonment either overtly or by acquiescence
H. Marriage without permission
I. Unequal marriage
J. Religious Laws regarding succession
N. Disinheritance and exclusions
O. Consitutional stipulations and house rules
P. Designations of who or what family will or will not have direct or collateral succession rights.
Some of the above methods of loss would affect individuals and their families only, while others would impact a whole dynasty wherein the regal claim would cease to exist and they would become mere commoners with no entitlement greater than anyone else in the nation.
The point is, "The extravagant doctrines [that deposed dynastic rights can never be lost, in other words] . . . concerning the indefeasibility of hereditary claims, and the imprescriptibility of royal titles, form no part of the law of nations." Philipp Melancthon (1497-1560), "Art.18: Melancthon’s Letter to Dr. Troy, " The Annual Review, and History of Literature, vol. 4, Arthur Akin, ed., 1806, p. 263.
"Prescription," one of the above ways to forfeit a whole dynasty, which is a natural law concept in international law, is so important to the future of "de jure" nobility and non-reigning royalty, chiefly because this law is part of what governs the ". . . position and status of unlawfully dethroned Sovereign Houses." (Stephen P. Kerr, "Resolution of Monarchical Successions Under International Law," The Augustan, vol. 17, no. 4, 1975, p. 979) Prescription is a core concept of royalty and sovereignty. For example:
Dynasticism . . . [is] bound up with the principle of prescription. Indeed it might almost be said that prescription, not dynasticism, [or, in other words, prescription rather than dynastic law] provided the original rule [or key for the determination] of legitimacy. (Martin Wight, "International Legitimacy," International Relations, vol. 4, April 1972, pp. 1-28)
The rules and principles of "prescription," as juridically binding actions, are still used to determine the validity and legitimacy of "de jure" internal non-territorial sovereigns in our day and age. Much of the following "Questions and Answers" relate to both the loss and the preservation of the royal prerogative in international public law. For example, ". . . international law cannot be said to admit the imprescriptibility of sovereignty." (Eelco van Kleffens, Recueil Des Cours, Collected Courses, 1953, vol. 82, 1968, p. 86) Why? Because not only have ancient royal houses lost their internal "de jure" claims to sovereignty for centuries by this fundamental means, but modern international courts have also sustained and upheld the forfeiture or permanent loss of deposed sovereignty by the same formal rules and principles of "prescription."
These important concepts need to be explained and understood. For example, to believe the idea that ". . . sovereignty formally implies a power that is absolute, perpetual, indivisible, imprescriptible and inalienable" is to believe in fairy tales or nonsense. Sovereignty may imply the above, but in real life sovereignty is not almighty, supernatural and everlasting as some want to you to believe. The truth is:
[Sovereignty] has been dividied and subdivided, acquired and lost, restricted and enlarged, times without number, and by various means, during the world's history. . . . The history of the world is full of examples of two or more nations being merged into one, and of one divided into two or more; of sovereignty lost by conquest or by voluntary surrender, and sovereignty acquired by rebellion or voluntary association. To say that a State cannot surrender or merge her own sovereignty, is to deny the existence of sovereignty itself; for how can a State be sovereign [having supreme power above all other things in life and not be able to] . . . dispose of herself? (Amos Kendall, Autobiography of Amos Kendall, William Stickney, ed., 1872, p. 597)
If sovereignty was indivisible, ". . . what became of the "indivisible" sovereignty of the British Empire when it was divided into twelve or thirteen independent States?" (Ibid., p. 596) Obviously, sovereignty is not absolute, perpetual, indivisible, imprescriptible, because it has always been limited, divisible, prescriptible and alienable. The point is:
Indivisibility of sovereignty . . . does not belong to international law. The power of sovereigns are a bundle or collection of powers, and they may be separated one from another. (Sir Henry Maine, International Law, 1890, p. 58)
"Sovereignty is divisible, both as a matter of principle and as a matter of experience." (Ian Brownlie, Principles of Public International Law, 2008, p. 113) ". . . Defining sovereignty as inalienable, unlimited, irrevocable, and imprescriptible, ran time and again into inherently fickle dynastic practice." (Benno Teschke, The Myth of 1648, 2003, p. 228) Examples of the how dynastic sovereignty was alienable, revocable and prescriptible, etc. are myriad. Example after example exists in the history of mankind to prove this. (Ibid., pp. 228-229) Johann Wolfgang Textor, considered to be one of the late founders of international law, made it clear and unmistakable that "prescription of kingly sovereignty" is a well-known legal fact. (Synopsis of the Law of Nations, chapter 10, no. 18) How this takes place is a serious matter, because dispossessed hereditary sovereignty can be lost, and lost forever, without any recourse for recovery or renewal.
In fact, "Any right . . . [even] the right of sovereign title, may be prescribed. . ." or lost. (William Cullen Dennis, Chamizal Arbitration: Argument of the United States of America, 1911, p. 114) The point is, ". . . There is not strictly, in human nature, any such thing as an absolutely indefeasible right [that is, by definition, something incapable of being annulled or rendered void]. Sovereign right itself furnishes no exception to this general principle." (Edward Smedley and Hugh James Rose, Encyclopaedia Metropolitana; or, Universal Dictionary of Knowledge, vol. 2, 1845, p. 714)
The point is, "[Both internal and external] sovereignty is . . . merely [a] legal conception. . . ." (Neil MacCormick, Questioning Sovereignty: Law, State, and Nation in the European Commonwealth, 1999, p. 127) Since sovereign right ". . . is conferred by law. . . ," it can also be taken away by law. (Ibid.) Dynasic or hereditary rights are:
. . . human laws . . . [that] enable men to transmit with their blood property, titles of nobility, or the hereditary right to a crown. These privileges may be forfeited for himself and his posterity. . . . They may be forfeited for posterity, because they are not natural rights. ("Problems of the Age," Catholic World, vol. 4, October 1866 to March 1867, p. 528)
They are created rights and any man-made right can be altered and changed by law, more especially by a higher law, such as, prescription, which is an integral part of the natural or higher law. These are important points in clarifying legal realities.
. . . In a [deposed] hereditary monarchy, the right to rule [which is sovereignty] remains with the royal descendant until he has lost it through the long process of prescription. (John A. Ryan, "Catholic Doctrine on the Right of Self-Government," Catholic World, vol. 108, January 1919, p. 444)
That Prescription is valid against the Claims of Sovereign Princes cannot be denied, by any who regard [or value] the Holy Scripture, Reason, [and] the practice and tranquility of the World. . . . (Charles Molley, De Jure Maritimo et Navali: or, a Treatise of Affairs Maritime and of Commerce, 1722, p. 90)
[Prescription] opposes the revival of claims from former regimes, including those of pretenders from previous dynasties, which are to be deemed [legally and lawfully] obsolete and void after the passage of a certain amount of time [50-100 years of silent abandonment]. (Frederick G. Whelan, "Time, Revolution, and Prescriptive Right in Hume's Theory of Government," Utilitas, vol. 7, no. 1, May 1995, p. 112)
. . .The revival of ancient, even [antequated and unreal] claims of sovereign rights [by deposed princes] which, on a proper view, have been lost by prescription [are to be "condemned"]. . . . (Adam Smith, Lectures on Jurisprudence, R. L. Meek, D. D. Raphael and P. G. Stein, eds., 1982, p. 37)
. . . All royal rights were and are prescriptive [that is, they can be terminated]. . . . ("The Saxons in England," Hogg's Instructor, vol. 3, 1849, p. 52)
The point, dynastic rights can be lost permanently. They can also be permanently maintained and perpetuated by the most fundamental law in existence. The "Law of Nations" is nothing more or less than the "Principles of the Law of Nature applied to the Conduct and Affairs of Nations and Sovereigns." (Emerich de Vattel, full title of his book The Law of Nations) Prescription forms part of the universal, binding and "necessary" (most essential) law of all nations, rather than the "temporary," changing or "voluntary law of nations." (Hugo Grotius, The Law of Nations, "Preliminaries," no. 7-13, 21) ". . . One part of international law [is] stable and eternally the same . . . another part as shifting and changeable with the changing manners, fashions, creeds, and customs [of man]. . . ." (Sheldon Amos, The Science of Law, 1874, p. 341)
Prescription being an important part of the immoveable, enduring and changeless natural law is not just for Europe, but it is an ancient law for all ages and all people. It is immutable and eternal. Or as the Sir William Blackstone declared:
It is binding over all the globe, in all countries, and at all times: no human laws are of any validity, if contrary to this; and such of them as are valid derive all their force, and all their authority, mediately or immediately, from this original." (Commentaries on the Laws of England, vol. 1, 4th ed., 1770, p. 41)
. . . As this law [natural law of which prescription is a part] is immutable, and the obligations that arise from it necessary and indispensable, nations can neither make any changes in it by their conventions, dispense with it in their own conduct, nor reciprocally release each other from the observance of it. (The Law of Nations, "Preliminaries," nos. 8-9)
The transfer of rights by prescription is a just, time-honored method, of ancient date and modern usage, for the acqusition of sovereign and royal rights. As stated by Johann Wolfgang Textor (1693-1771), a well-known international lawyer and publicist, "The modes of acquiring Kingdoms [principalities or territories] under the Law of Nations are: Election, Succession, Conquest, Alienation and Prescription." (Johann Wolfgang Textor, Synopsis of the Law of Nations, vol. 2, 1680, p. 77)
Literally thousands of former sovereign houses have lost all their royal rights and prerogatives throughout history. These de jure rights automatically transfer from the dispossessed former rulers to the new subsequent governments by natural law. It terminates all the entitlements for the neglectful, the silent or acquiescent, and justly and ethically gives them, in their entirety, to the new possessor.
Lose of rights, however, is only one facit or aspect of prescription on both an international and domestic level. The other is, it can preserve and perpetuate deposed sovereign rights indefinitely into the future. However, certain actions are required for this. Emerich de Vattel, one of the fathers of international law, declared:
Protests answer this purpose. With sovereigns it is usual to retain the title and arms of a sovereignty or a province, as an evidence that they do not relinquish their claims to it. (Emerich de Vattel, The Law of Nations, Book 2, chapter 11, no. 145)
Others have also discussed these important rules to safeguard and protect such rights:
. . . The [actual] form of the objection [or protest] is irrelevant, so long as the dispossessed state [or exiled royal house] make clear its opposition to the acquisition of title by someone else. (Martin Dixon, Textbook on International Law, 6th ed., 2007, p. 159)
If anyone sufficiently declares by any sign that he does not wish to give up his right, even if he does not pursue it, prescription does not prevail against him. . . . If any sufficiently declares by any sign [for example, use of royal titles and symbols of sovereignty] that he does not want to give up his right, even if he does not pursue it [does not go to war over it], prescription [or loss] does not avail against him. (Christian Wolff, Jus Gentium Methodo, Scientifica Pertractatum, vol. 2, John H. Drake, trans., chapter 3, no. 361, 1934, p. 364)
[In other words] one’s right is saved by protesting. Here likewise belongs the case of one who, being unwilling to give up the right of sovereignty [and royalty], claims the title and royal insignia, although [or even though] he does not possess the kingdom. (Ibid.)
[If one is] unwilling to give up the sovereignty, [he must] claim the title and royal insignia. . . . It is undoubtedly wise that the one who wishes to preserve his right, and does not wish to give it up, should give plain indications of his desire, so far as is in his power. (Christian Wolff, The Law of Nations Treated According to a Scientific Method, chapter 3, no. 364, 1974, pp. 187-188)
. . . The use of titles, shields, protests, public and solemn notifications [were all ways of interrupting prescription or maintaining internal non-territorial claims for territorially dispossessed royal houses]. (de Martins, Summary of the Modern Law of Nations of Europe,  1864 as quoted in Venezuela, Case of Venezuela in the Question of Boundary Between Venezuela and British Guiana, vol. 2, 1898, p. 295)
Some of them [the dispossessed] have retained the Titles of their pretended [that is, rightful claims to] Kingdoms and Lordships, others the Arms, and a third Sort both the Arms and Titles of those Dominions, tho' not in Possession of one Foot of Land in them. (Hugo Grotius, The Rights of War and Peace, vol. 2, Jean Barbeyrac trans., ed. & writer of notes, and Richard Tuck, ed., book 2, chapter 4, no. 1, note 5, , 2005)
. . . International law states that the heads of the Houses of sovereign descent . . . retain forever the exercise of the powers attaching to them, absolutely irrespective of any territorial possession. They are protected [by law] by the continued use of their rights and titles of nobility. . . . (Monarchist World Magazine # 2, August 1955)
In other words, the head of the royal house preserves and safeguards his family’s most sacred entitlements or rights by this means.
Here likewise belongs the case of one who, being unwilling to give up the right of sovereignty [and royalty], claims the title and royal insignia, although [or even though] he does not possess the kingdom. (Christian Wolff, Jus Gentium Methodo, Scientifica Pertractatum, vol. 2, John H. Drake, trans., chapter 3, no. 364, 1934, p. 187) (emphasis added)
[In other words] one who, being unwilling to give up the sovereignty, [must] claim the title and royal insignia. . . . It is undoubtedly wise that the one who wishes to preserve his right, and does not wish to give it up, should give plain indications of his desire, so far as is in his power. (Ibid., pp. 187-188) (emphsis added
In terms of arms in heraldry, the well-known practice is to make one's claim known to all by one's coat of arms as well as by use of title and protest:
. . . Arms of Pretension are those borne by [genuine] sovereigns who have no actual authority over the states to which such arms belong, but who . . . express their prescriptive right thereunto. (Henry Gough, A Glossary of Terms used in Heraldry, 1894, p. 18)
Use of one's exalted titles and arms are central to the preservation of rights in international law as a consistent public protest to protect a claim from prescriptive legal transfer.
However, once non-territorial sovereignty is lost, all, not some, but all royal rights are lost with it. This includes the right to honor others or use the exalted titles of a sovereign. This is because such an individual is no longer royal, no longer sovereign, no longer holds the rights of supremacy, but is merely a commoner with no more authority than anyone else.
Having illustrious ancestors makes no difference. If the precious quality of sovereignty is gone or lost in any of a number of different ways listed above, so is the legitimate right to use royal titles and honor others.
One must be wary and careful and be fully informed not to be deceived by some of the charlatans or bogus princes who skillfully fight the truth and purposely blur legal realities in order to lead people astray or take advantage of innocent, unsuspecting potential victims. It is very important to understand the basic inherent facts about sovereignty and royalty, so one is not taken in by those who masquerade as authentic, but who are really only impostors, who impersonate what is real, genuine and true.
The following principles are based on the writings of the founders of international law as well as modern scholars and jurists. This includes treaty law, court decrees and the International Commission on Law (ICL). You will find quotes from many of the above sources throughout the following.
Click on the question or statement that interests you, but we recommend that you read each one:
(2) (Dynastic Law)
(3) (Legal Standing)
(4) (Court Jurisdiction)
(6) (Dynasties can lose all Rights)
(7) (Maintaining Royal Rights)
(8) ("Prescription" Cases)
(9) ("Prescription" & Whole Nations)
(10) ("Prescription" & Legitimacy)
(11) (Monarchy & Sovereignty)
(12) (Popular Sovereignty)
(13) ("Prescription" & International Law)
(14) ("Prescription" & Tribunals)
(15) ("Prescription" & Internal Sovereignty)
(16) (Sovereign Limitations vs Independence)
(17) (Sovereign Rights vs Actual Power)
(18) (Succession Rules)
(19) (Modern Law & Ancient Rights)
(20) ("Prescription" & Cession)
(21) (Discerning Truth)
Section One: (19 Questions or Statements Answered)
(45) (Miscellaneous Questions Review)
Section Two: (Continuation of Questions and Answers)
(46) (International Law or Domestic Law?)
(47) (Vague and Uncertain?)
(48) (Dynastic & International Law)
(51) (Prescription both Preserves and Destroys)
(52) (Criteria for Determining Acquiescence)
Questions and Answers
(22) Some scholars have denied "prescription" in international law. If so, how can you promote it as something of such great importance to nobility and royalty?
In the 1800’s and early 1900’s, there were some skeptics. There probably still are. That is just the common lot of mankind to disagree. However, ". . . The idea that sovereignty is not subject to prescription has not been retained, at least not in international law. Though there are still writers [in the early 1900's] who uphold that idea, the majority rejects it." (Eelco van Kleffens, Recueil Des Cours, Collected Courses, 1953, vol. 82, 1968, p. 85) In other words, "The existence in international law of the principle of 'aquisitive prescription' for the preservation of international order and stability is acknowledged by the majority of writers." (Surya Prakash Sharma, Territorial Acquisition, Disputes, and International Law, 1997, p. 112)
One arbitration tribunal put it this way:
It is true that some later writers on the law of nations have denied that the doctrine of prescription has any place in the system of international law. But their opinion is overwhelmed by authority, at variance with practice and usage, and inconsistent with the reason of the thing. Grotins, Heineccins, Wolff, Mably, Vattel, Rutherforth, Wheaton, and Burke constitute a greatly preponderating array of authorities, both as to number and weight, upon the opposite side. (Bering Sea Tribunal of Arbitration, Fur Seal Arbitration: Proceedings of the Tribunal of Arbitration, no. CCLVIII, 1895, p. 45-46)
In discussing this subject further, they stated:
[For the same reason] which introduced this principle [the principle of prescription] into the civil jurisprudence of every country, in order to quiet possession, give security to property, stop litigation, and prevent a state of continued bad feeling and hostility between individuals, is equally powerful to introduce it, for the same purpose, into the jurisprudence which regulates the intercourse of one society with another, more especially when it is remembered that war represents between States litigation between individuals. (Ibid., p. 46)
Grotius, referring to the theory of Vasquius, that the doctrine of prescription was inapplicable as between nations, says: "yet if we admit this, there seems to follow this most unfortunate conclusion, that controversies concerning kingdoms and the boundaries of kingdoms, are never extinguished by any lapse of time; which not only tends to disturb the minds of many and perpetuate wars, but is also repugnant to the common sense of mankind." (Grotius, Be Jure Belli ac Pacis, bib. II. Cap. IV. § 1) (John Bassett Moore, A Digest of International Law, vol. 1, 1906, p. 293)
In other words, ". . . international law cannot [in wisdom] be said to admit the imprescriptibility of sovereignty." (op.cit., p. 86) So we go back to the question, "Does it [prescription] exist; is it recognized by international law? Many jurists and publicists of great authority answer in the affirmative; of which number are Grotius, Vattel, Edmund Burke, Wheaton, and Phillimore." (John Norton Pomeroy, Lectures on International Law in Time of Peace, Theodore Woolsey, ed.,1886, p. 120-121) This same author then quotes Emer Vattel:
. . . Usurpation and prescription are much more necessary between sovereign states than between individuals. Their quarrels are of much greater consequence; their disputes are usually terminated only by bloody wars; and consequently the peace and happiness of mankind much more powerfully require that possession on the part of sovereigns should not be easily disturbed, — and that, if it has for a considerable length of time continued uncontested, it should be deemed just and indisputable. (Ibid., p. 121)
Not only is "prescription" essential, useful and practiced in internationally law, but ". . . the concept of prescription (which legitimizes title through the passage of time) seems to be enjoying something of a revival in the post-Cold War Era." (Cherry Bradshaw, Bloody Nations: Moral Dilemmas for Nations, States and International Relations, 2008, p. 54) In other words, it is increasingly recognized that "prescription" is a powerful ancient doctrine, which has earned worldwide respect and admiration for being just, equitable, and fair as well as being practical in not only solving domestic property problems, but for sovereignty issues for territories and whole nations.
The Bering Sea Tribunal concluded that, ". . . the right of a government by prescription, based on occupancy and claim of title, to any dominion, on land or sea, of anything in the nature of property, whether corporeal, or incorporeal, [is so] . . . firmly [fixed, immovable and concluded, it is] as if the right were established by grant or as a the result of conquest or cession." (op.cit., Bering Sea Tribunal of Arbitration, p. 47) Edmund Burke declared that such surety rests:
. . . on the solid rock of prescription. The soundest, the most general, the most recognized title between man and man that is known in municipal or public jurisprudence; a title in which not arbitrary institutions, but the eternal order of things gives judgment; a title which is not the creature, but the master of positive law; a title . . . rooted in its principles in the law of nature itself, and is indeed the original ground [or fundamental understanding] of all known property. . . . (Ibid.)
In other words, "prescription" is part of the highest law of all nations. The lessor law is called the "voluntary law," which is gleaned from customs and is called "temperamentum," because it is ". . . shifting and changeable with the changing manners, fashions, creeds, and customs [of people]." (Sheldon Amos, The Science of Law, The International Scientific Series, vol. 10, 1885, p. 341) The other is the essential, fundamental moral principles called the "laws of nature," which never change and are called "summum jus." (Ibid.) Sir William Blackstone, the renown English jurist, declared the following about this greater law, which is part of the law of nations. He explained that the:
. . . law of nature [the higher law], being co-equal with mankind and dictated by God himself, is of course superior in obligation to any other. It is binding over all the globe, in all countries, and at all times: no human laws are of any validity, if contrary to this; and such of them as are valid derive all their force, and all their authority, mediately or immediately, from this original. ("Of The Nature of Laws in General" 2009: http://libertariannation.org/a/f21l3.html)
Hugo Grotius made it clear that ". . . Prescription doth truly belong to the Law of Nature. . . ." (Samuel Pufendorf, Of the Law of Nature and Nations, Book IV, chapter 12, no. 8, p. 357) Edmund Burke also explicitly stated that "the doctrine of prescription . . . is part of the law of nature [which is part of the natural law of justice]." (Francis Canavan, "Prescriptions of Government," Edmund Burke: Appraisals and Applications, Daniel Ritchie, ed., 1990, p. 251) In other words, "prescription" in international law is considered to be a part of the stable and eternally unchanging basics, which are the foundational laws of all mankind. Time, law and practice has conferred upon the principle of "prescription" a "timeless rational validity." (Constantin Fasolt, The Limits of History, 2004, p. 115) "Prescription" is universal. "Prescription is sanctioned by a strong instinctive feeling . . . of our nature; and, in point of authority, the universal practice of mankind, in every age. . . ." (Edward Smedley and Hugh Jame Rose, Encyclopaedia Metropolitana; or, Universal Dictionary of Knowledge, vol. II, no. 118 "Prescription," p. 707)There is ". . . world-wide agreement as to its essential doctrines." (Charles P. Sherman, "Acquisitive Prescription: Its Existing World Uniformly," The Yale Law Journal, vol. 21, no. 2, December 1911, p. 147) In fact, without exception ". . . every civilized nation must ultimately fall back upon a prescriptive root of title [for the legitimacy and validity of their rights]." (Frederick Edwin Smith, Earl of Birkenhend, International Law, 2009, p. 63)
. . . International Prescription, whether it be called Immemorial Possession, or by any other name [is so important that] . . . The peace of the world, the highest and best interests of humanity, the fulfillment of the ends for which States exist, require that this doctrine be firmly incorporated in the Code of International Law. (Robert Phillimore, Commentaries upon International Law, vol. 1, no. 219, 1854, p. 27)
". . . Immemorial possession . . . 'is generally recognized [as critically essential] and cannot be dispensed with.'" (Surya Prakash Sharma, Territorial Acquisition, Disputes, and International Law, 1997, p. 108) It is just that important. In fact, it is considered to be ". . . of incalculable [too great to be reckoned in] international importance." (Frederick Edwin Smith, International Law, 4th ed., revised and enlarged by James Wylie, 1911, p. 71)
"Although [long ago, not now] it [was] said [by some, not the majority] that sovereignty cannot be prescribed, [but] that [only meant] in less than a hundred years. . . ." (Jean Bodin, On Sovereignty: four chapters from the six books of the commonwealth, Julian H. Franklin, ed., 7th. ed., Book II, chapter 5, no. 608, 2004, p. 112) In other words, immemorial possession, or "immemorial prescription," was recognized as binding back then for those who neglected their rights for over 100 years. Now the loss of internal sovereignty can be lost in less than 45 years in some cases. (See "Question #33") Univerally acquiescence, implied consent or abandonment, not using royal or sovereignt titles for a royal house, etc., results in loss of all rights. "Acquienscence [is] silence or absence of protest in circumstances which generally call for . . . objection [like during usurpation]." (Ian Callum MacGibbon, "The Scope of Acquiescence in International Law," British Yearbook of International Law, vol. 31, 1954, p. 143)
[Title to territory is abandoned] by letting another country [or kingdom] assume and carry out for many years all the responsibilities and expenses in connection with [ruling] the territory concerned. Could anything be imagined more obviously amounting to [or be obviously identifying] acquiescence . . . [and] abandonment? Such a course of action, or rather inaction, disqualifies the country [or kingdom] concerned from asserting the continued existence of the title [of internal sovereignty]. (I.C. MacGibbon, "Estoppel in International Law," International and Comparative Law Quarterly, vol. 7, 1958, p. 509)
That is, "prescription" is a far reaching binding juridical act in international law; and it is of enormous importance to royalty, nobility and chivalry; because it can destroy and ruin as well as preserve forever all the greatest and most important rights and regal privileges of each and every royal house. Hence, the future of nobility and royalty is at stake.
In fact, its importance can hardly be overestimated for without "prescription," nothing would be authentic, genuine or real. Consequently, no dispossessed royal house would be royal or sovereign or hold any special rights to majesty, true chivalry or nobility. All we would have is an empty void of lost memories, but no legal rights, no lingering glory, no fountain of honor and no true knight or knighthood. "Prescription" is a core principle at the very heart and soul of legitimacy --- the most important of all traits.
(See (#8) in Part I for examples of modern international usage of "prescription;" (#13) in Part I that "prescription" is a recognized and accepted principle of international law by the International Law Commission of the International Court of Justice; and (#9) in Part I is how "prescription" is applied to whole complete nations, not just small territories or border disputes)
(23) What are the basic prescriptive principles that are so important to nobility and royalty?
In order for acquisitive prescription to occur, the possession of the acquiring state must be:
1. á titre de souverain (consistent with sovereignty)
2. open and notorious (public) [not hidden]
3. peaceful (acquiescence by any state that has any title)
4. continuous (uninterrupted)
5. enduring (for a certain substantial length of time)
(Jessup worldwide Competition for International Law, "Bench Memorandum 2010," p. 12)
Some explanations of the above five requirements are as follows:
(1) ". . . The state [as in #1 above] must exercise authority without recognizing that another state possesses sovereignty over the area." (Brian M. Mueller, "The Falkland Islands: Will the Real Owner Please Stand Up," Notre Dame Law Review, vol. 58, rev. 616,1983, p. 7) Recognizing the sovereign rights of the dispossessed would entirely derail the "prescription" of its rights, and then by moral and ethical standards the usurper would have to restore those rights. (See "Question #41" on the right of restoration)
(2) "Possession must be public [as in #2 above]. Because acquisitive prescription depends upon finding either express or implied acquiescence, a clandestine possession necessarily precludes acquiring title in this way." (Ibid.) Hence, rulership must be obvious, well-known and public.
(3) ". . . Peaceful possession [as in #3 above] is finding that the dispossessed state has acquiesced [abandoned overtly or by implication discarded] the possession." (Ibid.) In other words, "This meant that the possession had to go unchallenged." (Randall Lesaffer, "Argument from Roman Law in Current International Law: Occupation and Acquisitive Prescription," The European Journal of International Law, vol. 16, no. 1, 2005, p. 50) ". . . There cannot be peaceful possession unless there is an absence of objection [by the deposed monarch or government in exile]." (John O'Brien, International Law, 2001, p. 211) War, or lack of peaceful rule, does not stop "prescription." Peaceful does not refer to tranquility of rule, or a rule without problems, but to a lack of protest from the deposed former government. "'Peaceable' thus meant acquiescence by the opposing party." (Randall Lesaffer, "Argument from Roman Law in Current International Law: Occupation and Acquisitive Prescription," The European Journal of International Law, vol. 16, no.1, 2005, p. 51) One of the essential requirements for "prescription" to succeed is that there must be acquiescence, silence or lack of protest. That is what peaceful means --- uncontested or undisputed.
(4) "[As in #4 & #5 above] the possession must endure for a certain length of time." (Ibid.) This is between 40 and 100 years. (See: "Question #33" on typical time allowed for "prescription")
Some additional requirements are:
(a) "Acquisitive prescription does not operate where the acquiring state maintains possession by force." (Ibid.) That is, "prescription" cannot take place if the usurper continually has to physically fight the original sovereign to keep possession.
(b) "Diplomatic protests may . . . for a time . . . preserve the dispossessed state's claim. But if the state makes no effort to resort to other available remedies, such as referring the matter to the United Nations or the International Court of Justice, the diplomatic protests will ultimately prove ineffectual in stopping the acquisition by prescription." (Ibid.) Deposed monarchs and governments in exile, however, are not permitted to refer their cases to court as there are no tribunals that will accept such cases or that have proper jurisdiction. Therefore, in all fairness, it is determined that this requirement is not applicable to them. This would be an injustice. So consistent protest is adequate and sufficient in perpetuating their claim to the internal "de jure" right to rule. Such action legally means that the possession by the usurper was not peaceful and therefore, "prescription" cannot transfer "de jure" internal sovereignty to the usurper. (See (#4) and (#5) of Part I)
"Prescription" either transfers all the internal "de jure" rights of a former ruler and his family to the usurper or government that is presently in possession of the former ruler's territory, or it preserves and safeguards the former king's legal right to rule as long as he maintains and keeps his rights alive through the proper protest, which for a deposed royal house, as a minimum, is the use of their titles and arms. (See (#7) in Part I) For this reason, it is critical to the future o deposed royal houses that they use their titles and exercise their rights, because if they lose their sovereignty, they lose something extremely precious, unique and of great value. They would lose all their imperial and royal rights and all the regal prerogatives, honors and privileges that go with it. The point is:
The de jure sovereignty of a state [or monarchy] which has been usurped by a foreign [or domestic] conqueror is not extinguished by such usurpation but survives as long as such sovereignty is kept alive by competent diplomatic protests. (Philip Marshall Brown, "Sovereignty in Exile," American Journal of International Law, vol. 35,1941, pp. 666-668)
Only one thing was necessary for prescription to take effect: a certain length of time --- ten, twenty, thirty or a hundred years, depending on the kind of property [sovereignty in this case] --- during which no one had challenged the rights of the possessor [or usurping government]. (Constantin Fasolt, The Limits of History, 2004, p. 113)
If this takes place:
. . . the presumption of law from undisturbed possession being, that there is no prior owner, because there is no claimant --- no better proprietary right, because there is no asserted right. The silence of other parties presumes their acquiescence: and their acquiescence presumes a defect of title on their part, or an abandonment of their title. A title once abandoned whether tacitly or expressly, cannot be resumed. (T. Twiss, The Oregon Question Examined, 1840, p. 24)
Royal "de jure" families must be very careful not to unwittingly throw the beautiful privileges and rights of majesty and glory away by neglect. In other words, if any "de jure" sovereign, or any of his or her heirs, do not preserve through the generations of time or make the attempt, that is, act in such a way as to preserve their rights to rule in the prescribed way, ". . . we may lawfully presume that he [or she] abandons his [or her] right. . . ." (The Law of Nations, Book II, #146) It is internationally ". . . deemed just and indisputable" if the usurper ". . . has for a considerable length of time continued [to rule the country] uncontested. . . ." (Emer de Vattel, The Law of Nations, Book II, #147) That is:
By the rules governing the principle of good faith, prolonged inaction on the part of other sovereigns [deposed monarch or government in exile] which at one time might have been in a position to contest the claims of the prescribing sovereign [the usurper] gradually comes to be viewed as acquiescence [silence or abandonment]. Such other sovereigns [deposed monarch or government in exile] are estopped [precluded or legally barred] from contesting the prescribing sovereign's title. (www.doi.gov/oia/Islandpages/acquisition_process.htm)
. . . When such silence [implied consent, neglect or abandonment] has continued for generation after generation, no explanation of it is admissible [it is legally barred]; then, lapse of time alone makes the title of the possessor absolutely indefeasible [which means "it cannot be undone, annulled, or made void"]; and adverse claims and pretensions, however strong originally, are utterly and for ever lost. (Captain F. Brinckley R.A., "The Story of the Riukiu (Loochoo) Complication," The Chrysanthemum, vol. 3, no. 3, March 1883, p. 141) (www.canequity.com/mortgage-resources/?i+D)
In other words, if no royal family consistently protested or claimed the territory, then that country or nation, to all intents and purposes, has permanently acquired all the full and complete rights to rule over the land. "Prescription" is completed "by the silence [or quietness] of the injured party [a deposed monarch] when that party is dealing with a prince [or other usurper] who possesses that which belongs to him, or sells, cedes or alienates it; silence on those occasions is equivalent to consent [or the legal and permanent abandonment of "de jure" sovereignty]." (Gabriel Bonnot de Mably quoted by Vicente Santamaría de Paredes, A Study of the Question of Boundaries between the Republics of Peru and Ecuador, Harry Weston van Dyke, trans., 1910, p. 295) "Abandonment in law, is the [implied or overt] relinquishment or renunciation of an interest, claim, privilege, possession or right, especially with the intent of never again resuming or reasserting it." (http://en.wikipedia.org/wiki/Abandonment) Abandonment means to totally and completely discard, dispense with or dump a right permanently.
At this point, the usurper's ". . . sovereignty is proved and the title acquires absolute validity." (Surya Prakash Sharma, Territorial Acquisition, Disputes, and International Law, 1997, pp. 118-119) If there was a royal house, their failure to maintain "de jure" sovereignty means they have lost everything and have became commoners, ordinary citizens, without titles, and without any rights or privileges. Once lost, sovereignty is lost forever and cannot be reclaimed. And no sovereignty means no royalty. And no royalty means no royal privileges, honors, titles, rights or prerogatives. It is a complete and total forfeiture. All that is left is the fact that one's ancestors were once sovereign and once royal.
Vattel tells us:
. . . Prescription can not be set up against an owner [a deposed sovereign] who, not being able to prosecute his right at the time [deposed monarchs and governments in exile are denied all possible ways to regain their rights], can do no more than merely give sufficient signs, in one way or another, that he [the dispossessed monarch] does not mean to abandon it. This is the purpose of protests. (Emer de Vattel, Le Droit Des Gens, Charles G. Fenwick, trans, 1758, Book II, chapter 11, no. 145, p. 158)
He then specifies the way deposed kings and sovereign princes, or their successors, can protest in a way that protects their rights. He declared, "With sovereigns the [royal or princely] title and the arms of a territory or province are retained, as an evidence that the right to it has not been abandoned." (Ibid.) In other words, to keep or maintain the "right" to rule --- the royal privilege, a "de jure" sovereign, or his or her successors, must continue to use their rightful titles, and former arms as a minimum. They could, in addition, knight or honor others in the name and authority of their former kingdom or principality, or they could create a new order of chivalry, as rightful "de jure" sovereigns, successors or heirs. All such behavior prevents the loss of sovereignty, because both deposed monarchs and governments cannot take their claims to any tribunal on earth, nor can they wage war to get their territory back again. All they have left is to use their titles and exercise them as a protest.
"Prescription" can also be contested and easily defeated by an official declaration of one's legitimate title or right to rule in a number of ways to keep the claims active, present and well-known. A good example of this is in an article on the Imperial House of Hohenzollern where is stated in no uncertain terms that, "The House of Hohenzollern never relinquished their claims to the thrones of Prussia and the German Empire." (http://en.wikipedia.org/wiki/Hohenzollern) In addition, they must of necessity continue the claim in the prescribed way in every generation, so there is no question about who has the full and complete right; and to preserve it for posterity to be enjoyed both in the present and for future generations. (See (#6) in Part I for a greater understanding of the rules of "prescription.")
(24) Sometimes it is confusing to understand all the ins and outs of "prescription" and the law. What are the basics of recognition, international tribunals, and their relationship to deposed monarchs? Please clarify.
Thank you for asking. Recognition of countries by other nations doesn't change anything internally or legally. So it does not have any bearing on the internal legal rights of deposed kings and sovereign princes, nor does it impact on the legality of governments in exile. The legitimacy or validity of "de jure" internal sovereignty is outside of the authority of a nation's right to recognize or not to recognize others countries internal affairs under international law.
Sometimes deposed monarchs and governments are recognized, but it changes nothing about the reality of their sovereignty. Recognition is a political and not a legal reality. In fact, ". . . the distinction between de facto and de jure recognition is largely discredited, and . . . if there is a distinction it does not matter legally." (John Dugard, International Law: a South African Perspective, 2008, p. 116 and Ian Brownlie, Principles of Public International Law, 6th ed., 2003, p. 91) The point is, ". . . Sovereignty is neither created by recognition nor destroyed by nonrecognition." (The New Encyclopaedia Britannica, edition 15, part 3, vol. 17, 1981, p. 312) The simple truth is that recognition is not necessary, nor does it have any important effect one way or another on the internal rights and privileges of dispossessed royal houses. (See (#5) in Part I for more information on this.)
Likewise, international court or arbitration tribunals have no jurisdiction or influence on dispossessed kings and sovereign princes or their successors. Neither do they have any impact on the legitimacy of governments in exile. Such cases cannot be brought before any tribunal or court on earth. In other words, such access is completely denied to deposed monarchs. (See (#3) in Part I) However, "prescriptive" rules do provide a way to preserve their "de jure" internal rights, or to lose them irretrievably. Both the preservation and the lose is legally adjudicated or accomplished outside of any court decree or verdict by virtue of recognized juridical acts.
The following provides two good examples of "prescription" completed, without court or tribunal involvement. The first took place in the conflict surrounding the island of St. Lucia. The British took over the island in 1639, but lost it due to a native uprising in 1640. But because they failed to adequately protest the French takeover of the Island in 1650, they lost it --- especially after eighty years of acquiescence or silence when they should have protested. The island formally became the "prescriptive" sovereign possession of the kingdom of France without court involvement in 1713. (John McHugo, "How to Prove Title to Territory: a Brief, Practical Introduction to the Law and Evidence," Boundary & Territory Briefing, vol. 4, no. 2, 1998, p. 5)
The second example involves the how the Egyptian government ruled over both Egypt and the Sudan starting in 1820. After sixty-five years of peaceful rule, the Sudan was lost to the Mahdi rebels in 1885. But because ". . . Egypt had consistently maintained her claim despite the de facto loss of the territory ['her claims remain[ed] good']." (Ibid., pp. 6-7) So in spite of some serious challenges by England and France, the principles of "prescription" held their claim inviolate. No court or tribunal involvement was necessary, because international law was respected, acknowledged and upheld.
Hugo Grotius gives a few examples of "prescription" in ancient times achieved completely without any kind of court decree or verdict. He wrote:
. . . the Lacedaemonians, we are informed by Isocrates [(436-338 BC)], laid it down for a certain rule admitted among all nations, that the right to public territory as well as to private property was so firmly established by length of time, that it could not be disturbed; and upon this ground they rejected the claim of those who demanded the restoration of Messena [a stale uncontested claim of over 100 years].
Resting upon a right like this, Philip the Second was induced to declare to Titus Quintius, "that he would restore the dominions which he had subdued himself, but would upon no consideration give up the possessions which he had derived from his ancestors by a just and hereditary title. Sulpitius, speaking against Antiochus, proved how unjust it was in him to pretend, that because the Greek Nations in Asia had once been under the subjection of his forefathers, he had a right to revive those claims, and to reduce them again to a state of servitude. And upon this subject two historians, Tacitus and Diodorus may be referred to; the former of whom calls such obsolete pretentions, empty talking, and the latter treats them as idle tales and fables. (The Law of War and Peace, Book II, chapter 4, number 2)
In other words, stale claims of over 100 years are fantasy cake or make believe. The have no substance or validity, unless they used their exalted titles and/or protested in every generation so as to legally and ethically preserve the right. Otherwise, the claim was juridically abandoned, which means it was forfeited.
It is important to note that no real court or arbitration tribunal existed for "prescription" until the 20th Century. In other words, "prescription" was originally established in modern times to operate outside of court decrees and verdicts and did so for several hundred years. It also operated without court decrees and verdicts in ancient times as well. (See #19 in Part I for more examples) And even today, when such courts do exist for "defacto" government, (deposed monarchs and governments in exile are excluded from all such courts, only nation-states can participate), ". . . there is no requirement [in international law] to refer a dispute to international tribunals or other settlement mechanism." (Jessup worldwide Competition for International Law, "Bench Memorandum 2010," p. 12) One of the major reasons for this is "prescription" is all about the internal legal right to rule, rather than the external right. And as a practical matter, most countries do not care about the deposed "de jure" internal right to rule, if they have actual or "de facto" rule, that is, if they are actually ruling the nation. Besides, in most such cases, the usurper or "defacto" ruler is eventually officially recognized worldwide as both the "defacto" and "de jure" sovereign by other nations. In other words, even if this recognition is not legally binding, because it neither creates or destroys valid and legitimate internal sovereignty, it is all that most countries care about. (See (#14) in Part I for more information)
Little attention is paid to "de jure" internal sovereignty of a deposed monarch or government in exile, even though ". . . when a foreign invader or local insurgents have occupied a state, its government may flee abroad and . . . operate as a government in exile with the same legal status it had before." (Ibid., p. 26) But this high status is an internal claim, not external, so it is often ignored, but is legally legitimate and valid forever as long as the protest or use of exalted royal titles and arms are used consistently in every generation without fail in such a way that it is unmistakably evident and sure that they have never acquiesced, or by implication abandoned or discarded their internal "de jure" claim.
"The basis [or core principle] of prescription in International Law is nothing else than general recognition [or the acceptance] of a fact. . . ." (Lassa Oppenheim, International Law: a Treatise, vol. 1, 1905, p. 294) If a ". . . territory has been under the effective control of a State and that has been uninterrupted and uncontested, for a long time, international law [and the nations that uphold it] will accept that reality [fully and completely without the need of a tribunal]." (Anthony Aust, Handbook of International Law, 2005, p. 38) When nations uphold the law, this is the accepted outcome.
Without exception, all countries hold their titles to sovereignty over their nations originally ". . . by a successful employment of force [violence], confirmed by time, [long] usage, [and then by] prescription. . . ." (John Randolph, American Politics, Thomas Valentine Cooper and Hector T. Fenton, eds., Book III, 1892, p. 20) No court declared their right, "prescription" as a "juridical act" gives binding legitimacy without formal or official decree. The point is, not one nation that has received legitimate and authentic internal sovereignty has ever done so by court involvement. All nations, on the face of the earth, that have internal genuine and true "de jure" sovereignty, have received that right by "prescription."
In addition, there was no internal/external differentiation in ancient times --- all was internal sovereignty that "prescription" dealt with. It is the same today. For example, when a case of "prescription" does go before any one of the voluntary international tribunals, the contest is always about whether the State that had or still has the "de jure" internal right to rule will win or triumph over the State that has been exercising "defacto" rule over the territory. "Prescription" always involves a contest between the internal "de jure" rights of a former government and the internal and external overt "defacto" right of the current ruling power in charge. That is, the question is always who has the most valid and legitimate right to exercise internal sovereignty? That is the question and it is always the question when "prescription" is involved.
The answer is, title or ownership of "de jure" internal sovereignty ". . . will vest in the new state [the usurper's government] in the absence of protest." (op.cit., John McHugo, p. 5) "Protests are extremely important in international law." (Ibid.) So important that:
The rule, long settled . . . is that long acquiescence [silence or lack of protest] by one State [dispossessed] in possession of a territory by another and in the exercise of sovereignty and dominion over it [by the usurper] is conclusive of the latter's title and rightful authority. That rule is . . . decisive [and final]." (John Fischer Williams, Annual Digest of Public International Law Cases, vol. 3, 1925-1926, p. 114)
No protest means permanent and total forfeiture of sovereignty and the royal prerogative for a dethroned royal house or government in exile especially after 100 years of silent or implied consent. All that is left is that one has illustrious ancestors, but all royal, imperial or princely rights, and any authentic or genuine right to title, are terminated or irrevocably ended. To claim ancient internal rights for a house which by their inactions (lack of protest) from time immemorial, either through ancient or modern "prescription," is to believe in fairy tales or perpetuate a falsehood.
(25) Are there no exceptions to the loss of "de jure" internal sovereignty through "prescription?"
Hugo Grotius gave a very important one. He wrote, ". . . in order that silence may establish the presumption of abandonment of ownership, two conditions are requisite, that the silence be that of one who acts with knowledge and of his own free will. For the failure to act on the part of one who does not know is without legal effect." (On the Law of War and Peace, Book I, chapter IV, number 5) Not only is free will essential, but if there has been ignorance through deception or undue influence, duress, threat or some other unlawful means, then the presumption of silence and abandonment is null and void. In other words:
Presumption of neglect cannot justly exist, where the original owner has, by ignorance of his rights, or by deception, or personal fear, been prevented from claiming what he is entitled to. If he knew not that he had a right, he could not be supposed to relinquish it. And if fear or fraud induced his neglect, his mind could not have voluntarily consented. (John Penford Thomas, A Treatise of Universal Jurisprudence, chapter II, no. 13, 1829, p. 34)
Hugo Grotius made it clear that,"Contracts, or promises [in this case the promise of continued recognition as rulers] obtained by fraud, violence or undue fear [perpetrated by a government or some other unlawful force] entitle the injured party to full restitution." (www.constitution.org/gro/djbp_217.htm)
Obviously, criminal acts do not create lawful rights. But where there is an absent of any valid or legitimate excuse, all rights are lost. This loss takes place within a 50 to 100 year period or one generation of neglect. (See "Question #33")
International law has made it clear that sovereign prerogatives can be destroyed through the legal and lawful principles of justice and fairness, which is why these principles are so critical to the future of nobility and royalty.
Justice also demands that, ". . . all men are to restore what they are possessed of, if another is proved to be the rightful owner." (Hugo Grotius, On the Law of War and Peace, Book II, Chapter 10:1: www.constitution.org/gro/djbp_210.htm) This is why "prescription" protects lawful rights from ever dying, because justice does not condone theft or unfairness. The rights of sovereignty can continue forever if they are maintained in accordance with the principles of "prescription." The point is, ". . . The king does not forfeit the character of royalty merely by the loss of his kingdom. If he is unjustly despoiled of it by an usurper, or by rebels, he still preserves his rights. . . ." (Emerich de Vattel, The Law of Nations, Book II, chapter XII, no. 196) In other words, "The lawful monarch may be dethroned . . . [but] he continues to possess . . . the right of sovereignty [or right of royalty, which is the right to rule]." (Thomas Chalmers, Select Works, vol 5, 1855, p. 184) And this can last as long as their are rightful heirs and successors to properly maintain it down through the ages.
That is, as long as there is a competent protest against a fraudulent government by a valid former ruler, even if it is hundreds or even thousands of years later, then the principle of "prescription" remains in full force and power. In other words, "the right of prescription cannot be extended [to support] freebooters ['someone who takes spoils or plunder (as in war)']. . . . [because sovereignty, the highest right of power on earth, once given has] inalienable, immutable rights." (Phillip Marshall Brown, "Sovereignty in Exile," The American Journal of International Law, vol. 35, no. 4, October 1941, p. 667) That is, rights that never end if maintained.
"But," as Emerich de Vattel declared, "if [a deposed monarchy or] the nation . . . does not resist the encroachments . . . if it makes no opposition to them, — if it preserves a profound silence, when it might and ought to speak, — its patient acquiescence becomes in length of time a tacit consent that legitimates the rights of the usurper." (The Law of Nations, Book I, chapter XVI, no. 199)
[Nevertheless] it must be observed, that silence, in order to shew tacit consent, ought to be voluntary. If the inferior nation proves that violence and fear prevented its giving testimonies of its opposition, nothing can be concluded from its silence, which therefore gives no right to the usurper. (Ibid.)
For example, "Nobody is ignorant how dangerous it commonly is for a weak state [or a deposed monarch] even to hint a claim to the possessions of a powerful monarch [or state]. In such a case, therefore, it is not easy to deduce from long silence a legal presumption of abandonment." (Ibid., Book II, chapter XI, no. 148)
It is also very evident that we cannot plead prescription [lost of sovereignty] in opposition to a proprietor [a deposed monarch or title holder] who being for the present unable to prosecute his right, confines himself to a notification, by any token whatever, sufficient [or strong and obvious enough] to show that it is not his intention to abandon it [that is, to give up any of his sovereign rights]. (Emer de Vattel, The Law of Nations, Book II, chapter 11, no. 145)
This is where Vattel goes on to say that the use of one's royal and sovereign titles and arms is the usual and/or accepted way to make this solemn protest, and thus preserve and maintain the precious privileges completely intact. However, a claim of duress preventing protest must be brought forward before the generally accepted 40 to 100 year deadline. (See "Question #25") Otherwise, the usurper's claim of having an undisputed, long, peaceful reign is considered final.
Ignorance of the law is no excuse for disobedience in most cases in domestic law, and this is true in "prescription" as well especially in international concerns. Obviously, "The [usurper's] possession must be public. If there is to be acquiescence then there must be publicity." (Alina Kaczorowska, Public International Law, 4th ed., 2010, p. 282) However, "Ignorance of the fact [about one's claims] cannot be alleged between sovereigns, because national possessions are too notorious to be 'unknown.'" (Richard Wildman, Institutes of International Law: International Law in Times of Peace, printed in The Law Library, vol. 68, 1850, p. 51) Hence, "Formal notification is not necessary. . . ." (Vladimir D. Degan, Sources of International Law, 1997, p. 353)
The excuse of fear is also discounted after a long period of time as a viable justification. That is:
. . . in the course of a long time [many years], it is reasonable to imagine, that he [the original possessor] might . . . by some means or other [like moving out of the country] be able to remove his fears, or at least to find some opportunity of declaring his right without any danger. (Thomas Rutherforth, Institutes of Natural Law, vol. 1, chapter 8, no. 8, 1754, no. 2, p. 64)
In fact, if no way is implemented in that period of time, then it is obvious that the individual or family did not value the right enough to find a way to keep it. Hence:
Length of time, therefore, determines his silence or neglect [to make a protest] to be a mark of his intention to relinquish [and abandon] his right, as it affords a reasonable presumption, that such silence or neglect was not owing . . . to fear [or any other valid reason]. (Ibid.)
In other words, all excuses are extinguished after 100 years or when immemorial possession has taken place in which the so-called usurper exercised sovereignty from time immemorial.
Possession . . . for time immemorial, if the meaning of the words is rightly explained [it being over a hundred years], seems to be the most equitable [that is, the most just and fair] time of possession [by the usurper] for acquiring a prescriptive right.
The most obvious meaning of time immemorial is a time of such duration, that the memory of no man living can of itself, when unassisted by any external evidences, go back beyond it. (Ibid., no. 8, p. 67)
This means that if there is no living witness alive, there is no admissible excuse for a failure to protest by the original sovereign or his heirs. All else --- everything other than a living witness, is considered to be hearsay and, as such, is barred or precluded as evidence. Documents older than 100 years are considered to be either questionable or irrelevant, because critical points in such a case cannot be proven conclusively one way or the other. For example, it cannot be shown, with absolutely certainty, that the original monarch did not cede, renounce, abdicate, sell, mortgage or give his kingdom to the present owner or someone else. The only thing that is obvious in such a situation, with absolute certainty, is that the present sovereign, no matter how he got to the point of sovereign rule, has ruled the kingdom or nation for over a hundred years. Therefore, the "juris et de jure" conclusion is that the present sovereign in possession has the greatest right of all --- no one on earth has a greater right, and this conclusion is final without any need for a court verdict. The original possessor, or his successors, forfeits all sovereignty and therefore all royal rights; and is barred forever from his former claim. It is a complete and total lose. In terms of justice, Emer de Vattel explained:
The right of usucaption [prescription] properly signifies that the bona fide possessor is not obliged to suffer his right of property to be disputed after a long-continued and peaceable possession . . . . Nothing can be more equitable than this rule. [For example] if the claimant [the original owner or his heirs] were permitted to prove his property, he might happen to bring proofs very convincing indeed in appearance, but, in fact, deriving all their force only from the loss or destruction of some document or deed which would have proved how he had either lost or transferred his right. (Law of Nations, Book II, chapter 11, n. 141)
In other words, proof at this point is not allowed --- it is barred, because it is likely to be inaccurate as no living witnesses are available to confirm the real truth and documents could be fabricated or not tell the whole story of how the territory was lost, ceded or sold.
"Prescription" is established ". . . only in cases of long-continued, undisputed, and uninterrupted possession. . . ." (Emer de Vattel, The Law of Nations, Book II, chapter 11, no. 149) "But the case is different with a possession of only a few years' continuance. . . ." (Ibid.) It is only before 100 years have passed that excuses may be raised for silence or implied abandonment of all rights based on fear or some other valid excuse. But after 100 years the situation is final and irreversible. At that point, it is "juridically" ". . . brought to a conclusion, and settled on a firm and [legally] solid foundation." (Ibid.) Vattel wrote:
Would it be reasonable that he [the original sovereign or successor] should be allowed to call in question the rights of the [prescriptive] possessor, when by his own fault [neglect or dereliction] he has suffered matters to proceed to such a state. . . . If it be necessary that one of the two should be exposed to lose his property, it is just it should be the party who is in fault [the deposed monarch, or his successors, who acquiesced and therefore abandoned his rights]. (Ibid., no. 141)
This is why "prescription" is irrevocable. Justice, fairness and equity demands that, ". . . when from time immemorial [one hundred years] a nation has, without contradiction, exercised the sovereignty . . . nobody can dispute with that nation [that it does not have] the supreme dominion. . . ." (Ibid., Book I, chapter 22, no. 266) It is a done deal, settled and complete.
That is, the time is past, after 100 years no excuses are legally acceptable. It is an inescapable conclusion in "prescription" that he who neglects his rights, loses his rights for they are legally considered to have been discarded. Problems with silence, fraud, duress, etc. must be addressed before 100 years pass; because, "Centenary POSSESSION, i.e. for 100 years, constitutes a possession immemorial, the [highest] and most indisputable of all titles." (N. Bailey, The Universal Etymological English Dictionary, 1737, "POSSESSION") In fact, ". . . the possession of a century is a better title than can commonly be produced [for any nation on earth]." (Samuel Johnson, Works of Samuel Johnson, LL. D., vol. 12, , Arthur Murphy, ed., 1824, p. 231) After this amount of time, the title or rights become incontestable legal certainties. Immemorial possession is, in effect, a permanent statute of limitations barring all past claims for the internal rights to rule or possess any royal or sovereign privilege. (See (#14) in Part I)
(26) How does civil "prescription" differ from international "prescription?" Are there some important differences?
There definitely are. Two major ones come to mind. The first is that there is a definite court requirement to effect the legal transfer of real property ownership through "prescription" in civil or local cases, but no such requirement exists in cases involving sovereignty in international law.
Civil "prescription" is built on positive law created on a local and/or national level. It is well-known, that "prescriptive" title to the ownership of real property on this level can only be officially or lawfully transferred by court verdict or decree. However, in international cases, under voluntary public international law, neither court or arbitration is mandatory or necessary for the transfer of the internal rights of sovereignty or the right to rule. No international court or arbitration existed for at least two hundred years after the founding fathers created the law of nations. "Prescription" was created to be legally binding or operate independent of any court involvement.
(Please see the related question and answer in Part I entitled: (14) Is court or arbitration necessary to effect the loss of sovereign rights for a deposed monarch? for more information on this important subject.)
The second major difference involves good faith. Good faith in "prescription" means possession was obtained legally and lawfully. Good faith possession is required in local cases, but not in international ones, for example:
No prescription is valid [in all civil cases] unless it is based in good faith not only at the beginning but through the entire course of time required for prescription. . . .
It has never been the purpose of prescription to reward unethical behavior such as theft or the wresting of rights or release from obligations by violent means. Good faith has always been an essential element. (Robert T. Kennedy, "Prescription," New Commentary on the Code of Canon Law, John B. Peal, ed., 2000, p. 230) In other words, "By the principles of most systems of municipal law, a prescriptive title cannot be acquired where the original taking of possession was by force.” (D. W. Greig, International Law, 1976, p. 166)
The essential difference between "good faith" and "bad faith" in civil cases of "prescription" is defined as follows:
. . . "Good faith" [is when] possessor [is judge] as one “justified in believing he holds the real right he is exercising." Good faith possessors include those whose adverse possession claims are based on mistaken belief of ownership. . . . In contrast, bad faith possessors include those who make possessory claims knowing that they are not the lawful owners and those who have been proven negligent in formulating their claims to title. (Michael H. Lubetsky, "Adding Epicycles: The Inconsistent Use Test in Adverse Possession Law," Osgoode Hall Law Journal, vol. 47, 2009, p. 582)
That is the requirement in civil jurisdictions. On the international level, however, it is entirely different. "Good faith" is not required. It is just the opposite. ". . . The International Law doctrine of uti possidetis is indifferent to the way sovereignty was acquired. . . ." (Laurence Henry, Book Review, European Journal of International Law, vol. 15, 2004, p. 1064) The point is, usurpers of territories or nations have done so illegally; such that, "[prescription does indeed] operate where the acquiring state originally acquired the territory by force [that is, by violence], provided the state follows with peaceful possession." (Ibid.) In other words, ". . . violent occupation [can be turned] into a legal right [through prescription on an international level]." (Constantin Fasolt, The Limits of History, 2004, p. 114)
. . . The process by which one State acquires a prescriptive right to the territory of another, is adverse, or in effect, illegal possession. . . . It is by a settled and uninterrupted course of such illegal activity [that is, the usurper continues to exercise full, but unlawful, sovereignty over the territory, and if] acquiesced in, or not effectively or sufficiently countered in the manner, or to the extent, prescribed by international law for the upkeep of the title [by the former sovereign], that a title [or the de jure internal right to rule] by prescriptive means is [legally] acquired [by the usurper]. (Gerald Fitzmaurice, "General Principles of International Law Considered from the Standpoint of the Rule of Law," Recueil Des Cours, Acadimie de Droit International de La Haye, vol. 91, no. 71, 1957 reprinted 1993, p. 121)
Although international law is not keen to legalise unlawful conduct, the aim of international law is always stability and certainly. Thus, provided the territory has been under effective control of a State and that has been uninterrupted and uncontested for a long time, international law will accept that reality. (Anthony Aust, Handbook of International Law, 2nd ed., 2010, p. 38)
Hence, ". . . Prescription . . . [can] legitimise any historical fact which began in violence and bad faith through the wholesome passage of time." (Edmund Burke, Reflections on the Revolution in France, 1790, p. 134) In other words, even though possession was originally obtained illegally by violent occupation, theft, treason, referendum, treachery, threat or duress, it can be legitimized or made good in time through the undisturbed rule of the usurper. But this can only happen when the deposed sovereign, and his rightful heirs, remains silent and acquiescent to the take over for 50 to 100 years. ". . . The inaction of the existing [or deposed] sovereign . . . in effect abandons or allows its title to lapse, or loses it as a matter of law by failure to keep it up." (op.cit., Fitzmaurice) However, if the dispossessed monarch continues to use his exalted royal, princely and/or imperial titles, then ". . . no . . . amount of action by the [usurping] State purporting to acquire sovereignty would avail [or prevail] in law against [the] adequate reaction [consistent use of titles and arms] or counteraction by the existing [or deposed] sovereign." (Ibid.) A dethroned king or sovereign prince can maintain his rights forever and never lose them by protest. This is an important understanding. But it is also important to know that if lost, which happens in most cases, it cannot be retrieved. The claim ceases to exist and the royal prerogative is lost forever.
(27) You have discussed the effect of "prescription" on sovereignty and royalty. Does "prescription" have any impact or influence on non-sovereign titles, such as, titles of nobility and nobility itself?
Yes, the right of nobility, like the right of royalty or sovereignty, are incorporeal herediaments --- intangible, hereditary property rights. ". . . A title of honor or nobility . . . are regarded as aspecies of property, and are classified by Blackstone as incorporeal hereditaments. . . ." (Daniel Coit Gilman, Harry Thurston Peck and Frank Moore Colby, eds., The New International encyclopæeia, vol. 6, “Dignity,” 1909, p. 249) "A dignity or title of honour [is] an incorporeal hereditament. . . ." (The Law Journal, vol. 20, 1885, p. 123) And, "Prescription properly applies only to incorporeal hereditaments." (John Bouvier and Francis Rawle, Bouvier's Law Dictionary and Concise Encyclopedia, vol. 3, 1914, p. 2673) Titles of nobility, being owned or actual possessions or the "de jure" proprietary rights of an individual or family, the legal principles of “prescription” apply to them.
"Prescription" is ". . . in both domestic and international law, the effect of the lapse of time in creating and [or] destroying rights." (www.britannica.com/EBchecked
/topic/475119/prescription) "Prescription" is gaining title or right to the ". . . property of another, (such as an easement) obtained by continued use over a long period of time. . . . The use has to be uncontested; if the property owner [the real noble family] objects to the use, "prescription" doesn’t apply." (www.mmlc.ca/article-96d.asp) The consistent or constant use of the property, titles of nobility or claim in this case, must be uncontested, and the right must have been exercised from time immemorial (time beyond memory) to rightfully claim legitimate ownership of the right.
Some of the ancient nobility ". . . enjoy this [exalted noble status or] rank not by royal charter [or letters patent] but by uncontested exercise of the privileges of aristocracy." (http://en.wikipedia.org/wiki/immemorail_nobility) That is, their right or entitlement of nobility comes completely from "prescription," that is, the uncontested "exercise of the privileges of aristocracy" for generations --- from time immemorial, which means from time beyond memory. In such a case, "Proof of unbroken possession or use of any nobility right since time immemorial [makes] it unnecessary to establish the original grant." (Ibid.)
If, on the other hand, an undocumented family claims noble titles and/or status and did not "exercise the privileges of aristorcracy" (consistent use of titles through the generations) from time immemorial, then all possibility to prove it was real and authentic is lost forever. Why? Simply, as stated, they failed to "exercise the privileges" (the use of their titles) and have no documentation to prove anything was genuine aside from it being a family belief. Family traditions often prove out to be family fairy tales or made up stories for which no proof or evidence of validity can be found or discovered. In such a case, no legitimate right can be claimed. (For more information, see “Nobiliary Law and Succession”)
(28) After belligerent occupation ends and the new regime takes over, it is a well-known fact that "de jure" sovereign recognition is generally given to the usurping or newly formed government. In that case, how can a legitimate government in exile or exiled monarch still rightfully claim sovereignty?
The reason for the confusion is a lack of understanding of the external and the internal dimensions or aspects of sovereignty. When terms are not defined or used with precision, confusion results. (See (#5) in Part I which introduces the concepts of internal and external sovereignty as well as the concepts of de jure and defacto sovereignty. See also the following question in Part I for more information: (15) I've heard that even scholars get the internal and external dimensions of sovereignty confused?)
Because words are not carefully qualified, the literature on governments in exile is, at times, confusing. This is because governments in exile can have both external "de jure" sovereignty and internal "de jure" sovereignty at one point, and only internal "de jure" sovereignty later on. The rules of "prescription" involve internal "de jure" sovereignty only, while the rules of belligerent occupation covers both internal and external "de jure" rights. The following statement being based on belligerent occupation involves both "de jure" internal and external sovereignty.
The legal (de jure) sovereignty still remains vested where it was before the territory was occupied although obviously the legal sovereign is unable to exercise his ruling powers in the occupied territory. (Morris Greenspan, The Modern Law of Land Warfare, 1959, p. 217)
Another similar statement declares the same thing:
The sovereignty of the state remains vested in the legal sovereign, even though it is in exile. (Charles Albro Barker, ed., Power and Law, Conference on Peace Research in History (September 1968) 1971, p. 152)
The problem is, external "de jure" sovereignty ends for the government in exile, or monarch in exile, when other countries officially recognize the new "defacto" government (the usurper) as the government of the nation. In other words, "The claim to [external de jure] sovereignty of a government in exile will apparently be recognized only as long as this loss of effective control is considered temporary." (Ibid.) After that, the defacto or usurping government, the new regime, is recognized as the external "de jure" sovereign --- the ruler on both a "de jure" and "defacto" level.
In other words, "If its [the government in exile's] efforts prove unavailing [that is, unsuccessful in getting back defacto control of the territory], then its claims to sovereignty become nugatory." (Ibid.) "Nugatory" means it is of little or no consequence --- unimportant, because it lacks any binding force behind it. The usurper, then, in time, becomes the winner and receives both external "de jure" and "defacto" recognition from other nations as the ruling power in control of the nation.
But this is all external sovereignty. If the government in exile, or monarch in exile, though stripped of external recognition and power, continues to protest and continues to claim rightful "de jure" sovereignty, we leave the area of belligerent occupation and enter into the arena of "prescriptive" law. The government or monarchy in exile has at this point lost most, if not all, external "de jure" recognition, but can still maintain internal "de jure" rights through diplomatic protest. This means though they (the government is exile or monarchy in exile) may be considered to be nugatory, or unimportant, they can still rightful and legitimately claim to be the true legal sovereigns of the nation or land of their forefathers. "Their sovereignty has not been extinguished. Its freedom of exercise has merely been restricted or suspended." (Philip Marshall Brown, "Sovereignty in Exile," The American Journal of International Law, vol. 35, no. 4, October 1941, p. 667) And these "are facts not fictions." (Ibid.) Hence, on a "de jure" internal basis, if maintained:
The legitimate Sovereign [though in exile] would still possess sovereignty over the occupied territory, although not being in a position to enforce this power anymore. (Joeri Nicolaas Maria Elisabeth Michielsen, The 'Nazification' and Ddenazification' of the Courts in Belgium, Luxembourg and the Netherlands, 2004, p. 203)
(29) Is sovereignty is still viable, important and absolute as in ancient days?
First of all:
The concept of sovereign rule dates back centuries in the context of regulated relationships and legal traditions among such disparate territorial entities as Egypt, China, and the Holy Roman Empire. (www.idrc.ca/en/ev-28492
The ancients obviously exercised internal sovereignty, but sovereignty of the State itself, external, or internationally recognized legal sovereignty was something new, which came about after the 1600's. But the notion of sovereignty was well-known to the ancient world. Hellenic law was a very real form of "international law" between the city-states of the Greek world. (Coleman Phillipson, The International Law and Custom of Ancient Greece and Rome, vol. I, 1911, pp. 29-30)
Sovereignty is truly of ancient origin; and it is an extremely important legal and political concept in our day and age. It has rightfully been described as "the defining doctrine," "the primary cause" from which flows all effective government, "the defining feature of statehood," "the glue or cement that holds all society together," "the one and only true stabilizing principle," "bedrock," "the foundation stone," "the most sacred of international law principles," "an indispensable concept," "of cardinal importance," "the central organizing principle," "the soul" of civilized society, "the reference point," "the central concept for the preservation of world peace," "the most basic principle in international affairs," "the dominant world order framework," doubtlessly "the most precious" of all governmental rights, "the cornerstone," "the guiding principle," "the key constitutional safeguard," "the final and ultimate matrix of a stable society," the "pinnacle," the "ark of the covenant," the "holy grail," the "Alpha and Omega," the "first principle," "the "sine qua non of international law," that is, the indispensable condition that cannot be done without, for it is "the building block," "the principle of solidarity" --- "safeguarding humanity." In fact, everything of real importance in government revolves around this chief governing principle. ". . . Sovereignty is a global system of authority: it extends across all religions, civilizations, languages, cultures, ethnic and racial groupings, and other collectives into which humanity is divided." (Robert Jackson, quoted on the back of the book Sovereignty by Robert Jackson, 2007) "Sovereignty is a the very centre of the political and legal arrangements of the [entire] modern world." (Ibid.) (See: "Sovereignty & The Future of Nobility and Royalty")
A good definition is as follows, "Sovereignty is the quality of having supreme, independent authority over a territory." (http://en.wikipedia.org/wiki/Sovereignty) This is describing "de jure internal sovereignty," not the external sovereignty that is the primary focus of international law. We use "Westphalian sovereignty," not just because it is the sovereignty created by the Emperor, Kings and Princes both inside and out of the Holy Roman Empire, but it is the sovereignty of deposed monarchs as well.
As Professor Philip M. Nichols, Associate Professor of Legal Studies and Business Ethics, The Wharton School of the University of Pennsylvania, taught, "This principle [of Westphalian sovereignty] retains its vitality [its basic fundamental importance] in international tribunals to this day." ("Integrated Sovereignty," 2008 Seminar Lecture: http://works.bepress.com/cgi/viewcontent .cgi?article =1002&context=philip_nichols)
Black's Law Dictionary describes sovereignty as:
. . . Supreme, absolute . . . , supreme political authority; the supreme will; . . . the self-sufficient source of political power from which all specific political powers are derived; . . . the power of regulating . . . internal affairs without foreign dictation . . . . (1430 (8th ed. 2004)
This is the definition we use as well. It is the same as the Westphalian Treaty was concerned about. And, as Professor Nichols explained, "Local courts throughout the world [in modern times continue to] use the definition found in Black's, or a similar absolutist definition [which is basically one and the same]." (Ibid.) But no matter how important this principle is and the fact that modern courts use it, a number of scholars use it as their favorite punching bag. (Ibid.) They use the word "absolute" and exaggerate it and make it unrealistic by overstating it boundaries, while neglecting the well-known fact that, ". . . in the world no entity [no country, nation or kingdom] possesses absolute control over everything," nor should it. (Ibid.) Sovereignty is a "right" not something always seen in action. It is like an iceberg --- only about 10% is above the waterline --- the rest is hidden, inactive or dormant. Sovereignty has always been limited in some way or another. It is an:
. . . extremely relevant [and important] fact that sovereigns need not have supreme authority over all matters within a territory. . . . [In fact] in practice, modern sovereigns have never had total license or absolute authority over everything." (Jack Donnelly, "State Sovereignty and Human Rights:" http://mysite.du.edu/~jdonnell/papers/hrsov%20v4a.htm)
". . . There has never been a `mythical past' in which states could exercise absolute control and authority." (Katherine L. Lynch, The Forces of Economic Globalization: Challenges to the Regime of International Commercial Arbitration, 2006, pp. p. 52-53) According to Grotius:
The supreme power is . . . limited by divine law, natural law and the law of nations, but also by such agreements as are made between ruler and ruled. Thus an indefinite number of rights may be subtracted from the authority of the ruler; his acts may be rendered subject to ratification by a senate or other body . . . yet the sovereignty still retains its essential quality unimpaired. (Charles Edward Merriam, History of the Theory of Sovereignty since Rousseau, 1900, pp. 375-376)
"What can be said almost with certainty is that probably no state has ever exercised complete rule over its territory. . . ." (Adrián Tokár, "Something Happened. Sovereignty and European Integration." In: Extraordinary Times, IWM Junior Visiting Fellows Conferences, vol. 11: Vienna 2001, p. 3) Sovereignty is legally absolute in that the "right" truly exists and is real, and it is supported by international court decisions, but the absolute exercise of such never happens and never will.
However, when the chips are down and an emergency appears, full sovereignty is there to be employ as is needed and necessary. Otherwise its enormous power remains relatively invisible and unseen. People get confused when they forget that sovereignty is a "right," practiced in different ways. It is not to be "confused with [absolute] control over [all] outcomes. . . . Sovereignty is the right, not the ability, to determine one's policies. [In other words,] like any right it may or may not be effectively enjoyed [it might be] infringed, violated, or ignored." (op.cit., Jack Donnelly) Again:
Sovereignty is not the Power, it is not the Authority, it is not the Command, but it is the Right of Power, the Right of Authority, the Right of Command, as Vattel so beautifully and correctly declares. Supreme Power, Supreme Authority, Supreme Command, is the superstructure, resting upon "that foundation and root," the Right of it, which is Sovereignty. (John Stephen Wright & John Holmes Agnew, Citizenship Sovereignty, 1883, p. 87)
Sovereignty is an abstract or intangible, not a concrete fact. But it still has full power, when needed. The point here is, sovereignty is always there behind the scenes, it is intact, it is flexible, bendable and adaptable, but it is still absolute even though it is dormant and used in a divided fashion most of the time. So, "while this notion of [absolute] sovereignty has provoked criticism [because it is misunderstood], it [the concept of sovereignty] retains vitality in international use, and remains the cornerstone [or the fundamental and most seminal principle] of international law." (op.cit., Nickols) It is indispensable to the nations and society, not only back then, but now.
As recent as 1986, the international court, considering the accusation of the United States against Nicaragua of becoming a totalitarian communist dictatorship, supported the seminal concept of sovereign independence or of absolute sovereignty from other nation's interference. Because ". . . to hold otherwise would make nonsense of the fundamental principle of State sovereignty, on which the whole of international law rests, and the freedom of choice of the political, social, economic and cultural system of a State." (World Court Digest: www.mpil.de/ww/de/pub
The enemies of sovereignty (globalists, progressives, communists, European Unionist, etc. --- those who are power and control hungry) would blame everything bad and wrong on it, but to any honest thinking person, "The concept of sovereignty cannot reasonably be blamed . . . for the world's horrors and imperfections." (Thomas C. Heller & Abraham D. Sofaer, "Sovereignty: The Practioner's Perspective," Problematic Sovereignty: Contested Rules and Political Possibilities, Stephen Krasner , ed., 2001, p. 26) In fact, sovereignty ". . . continues to represent the most important vehicle available" in protecting freedom and individual liberty. (Ibid.)
Sovereignty is one of the most important concepts in existence. The right or privilege of Westphalian sovereignty is absolute and supreme. There are ". . . two dimensions of Westphalian sovereignty: internal and external. . . ." (Alena Ingvarsdottir, "The Fall of Westphalia? Sovereignty of States Post Globalization," 2009: http://skemman.is
/handle/1946/3088) "De jure" and "defacto" external sovereignty is the major focus of international law, whereas the "de jure" and "defacto" internal province is the sovereign domain of deposed monarchs and governments in exile as well as reigning sovereigns. Sovereignty is a central fundamental principle, and it is ". . . is built upon an absolutist concept. . . ," in both ancient and modern times. (op.cit., Heller & Sofaer) That is, it is ". . . still being necessarily thought of as 'absolute and indivisible'" (http://faustianeurope
A good summary of this law in terms of monarchy comprising of both the internal and external dimensions is as follows:
According to Laws of Nature and of Nature's God, no People have a right to change its Government, so long as it is well administered [is not oppressive]. Both Kings and Nobles have become possessed of legitimate rights, of which no People may dispossess them, until by misrule, unjust and illegal oppression, their vested rights shall have been forfeited. And other States, near or remote, have no right in any shape or manner to interfere. (John Stephen Wright & John Holmes Agnew, Citizenship Sovereignty, 1883, p. 180)
Independence and non-interference is external sovereignty. Internal sovereignty is the right of the king or monarch, and his heirs, to rule and not be dispossessed unless they become tyrants and destroy freedom and oppress the people. Sovereignty must be bound up in good. Sovereignty is necessary to prevent anarchy, which is more destructive of freedom and prosperity than any other thing known to mankind. It brings more betrayal, terror and ruin than anything else on earth except for war. A civil society requires a supreme and just authority to maintain it. Hence, ". . . Sovereignty . . . dominates international law." (Ibid.) It has for hundreds of years, and it has had dominion since the beginning of time.
In our day and age, "Courts [both local and international] continue to use the absolutist definition. . . ." (Ibid.) ". . . The absolutists conception of sovereignty dominates scholarly discourse" as well. (Ibid.) Because, no matter how it is criticized, no one can get away from its "fundamental soundness." (Ibid.) In other words, ". . . The Westphalian model and both of its dimensions (internal and external) are relevant and functional in . . . contemporary [times]." (op.cit., Ingvarsdottir) For it has withstood the test of time. It is the same sovereignty that was known to the kings and princes of old. It is the same today. There is no difference in the basic fundamental principle. (See: "Sovereignty in the Holy Roman and Byzantine Empires")
Emer de Vattel expressed the fact that sovereignty is "the key-stone," "the vital breath" and "the very soul of [effective] government." (Hugo Grotius, On the Law of War and Peace, Book II, chapter XX, number 30 and chapter IX, number 3)
With this "absolute" power, which is an "absolute" right, not continually "absolute" in actual practice, "A sovereign state can make a treaty. It can also break a treaty, or determine for itself when a treaty commitment is no longer binding or applicable." (Jeremy Rabkin, "Recalling the Case for Sovereignty" Chicago Journal of International Law, January 1 2005, p. 23) Thus the State can be protected from unwarranted or absurd agreements that end up being nonsense later on.
Even though, ". . . sovereigns have no superior," there is a difference between the raw absolute power of sovereignty itself and legal right to use it. (op.cit., Jackson, pp. 16-17) Internal domestic law creates checks and balances to ensure it is used for the common good of everyone. "Unlimited power is nowhere existent. Even in despotic countries there are influences of various kinds affecting sovereignty." (E. Asirivatham, Practical Theory, 1971, p. 349) In other words, that great and important power may and should be delegated or assigned out in a document of supreme law, such as, a constitution for the good and benefit of all. (See also "The Model Constitution")
Vattel made it clear that, "Of all the rights possessed by a nation, that of sovereignty is doubtless the most important." (Emer de Vattel, The Law of Nations, Book II, chapter 4, no. 54) It should be self-evident at this point that sovereignty is ". . . the most important topic to be discussed in political science." (Westel Woodbury Willoughby, An Examination of the Nature of the State: a Study in Political Philosophy, 1922, p. 185) "What the term 'Value' is to the science of political economy, the term 'Sovereignty' is to political science." (Ibid.) Hardly anything could be more important to the well-being of mankind. He declared, "Sovereignty is the vital principle in the life of a State. The vitality of all law is dependent on it. . . ." (Ibid.) It is the constitutive concept or foundational quality of all nation-states, ancient and modern, which is the right or "the power to create, enact, [and] establish." (http://thebookman.wordpress.com/2008/03/01
(See: "(17) How can sovereignty be both limited and absolute at the same time? Isn't this a contradiction in terms?" in Part I)
(30) Some experts believe that monarchs could never cede, sell or alienate their realms.
In truth, the greatest nations and the haughtiest rulers have engaged in such transactions; selling as the circumstances suited them outlying provinces of their vast estates. England, France, Germany, Russia furnish instances of this kind of traffic. A King of England sold Dunkerque to France. Napoleon sold the Mississippi valley to America. Most of the mediatised princes of Germany sold their sovereign rights for money. During the Caliph's own reign Russia has sold her great province of Alaska to the United States. Denmark has sold her duchy of Lauenburg to the King of Prussia. France has recently bought up the sovereignty in Monaco. Not many years ago the] Prince of Mingrelia sold his sovereign rights to Russia for a pension, [and more recently the Elector of Hesse-Cassel sold such remnants of his] --- rights as had survived defeat to Germany. No one denies that such transfers of authority are legitimate, if they are carried out with due regard to all existing rights. In India we have bought up sovereignty after sovereignty. Not long since the King of Holland was on the point of vending Luxemburg to France. (John Nichols, The Gentleman's Magazine, vol. 240, January - June 1876, p. 176)
The conclusion here is that, ". . . International Code specifically provides . . . that sovereignty may be bought and sold. . . .'" (Oscar William Coursey, The Philippines and Filipinos, 1914, p. 101) Of course, the likelihood of this happening today is, obviously, extremely low, but not impossible as we shall see. The buying and selling of whole sovereign principalities "in totum" after the Empire collapsed and ceased to exist is particularly germane. The reason why this distinction is important is shown by the following two quotes:
1. The French ambassador to the Imperial Reichstag in July of 1806 issued a note stating that each state was thus a full and independent nation of Europe. He stated emphatically that Napoleon as Emperor and King recognized "the complete and absolute sovereignty of each of the princes [and the idea of] . . . maintaining with them the same relations as with the other independent [sovereign nations or] powers of Europe." (http://chnm.gmu.edu/revolution/d/516) (http://personal.ashland
2. "The dissolution of the Holy Roman Empire meant that anyone who was previously a direct vassal of the Emperor without any intermediary (in other words, was unmittelbar or 'immediate') became ipso facto [by that very fact] sovereign. [In other words, they] ceased to be subject to any superior authority." (www.heraldica.org
However, even before 1806, "In 1230 Frederick II (1215-50) conceded to each German prince sovereign rights in his own territory. From the thirteenth to the nineteenth century these princes ruled their territories as independent states, leaving the office of emperor a hollow title." (Mark A. Kishlansky, Patrick Geary & Patricia O'Brien, A Brief History of Western Civilization: the Unfinished Legacy, vol. 1, 4th ed., 2004, p. 188) After the Treaty of Westphalian in 1648, the 300 or so principalities of the Holy Roman Empire became more fully legally recognized as sovereign. That is, "Each prince or king became an emperor in his own realm." (Andrew Vincent, Nationalism and Particularity, 2002, p. 17) "Although technically still a part of the empire (which would last in name until 1806), these [German] principalities gained all the trappings of sovereign statehood." (Hendrik Spruyt, The Sovereign State and Its Competitors, Princeton University Press, 1994, p. 29) "The Treaty of Westphalia gave virtually all the small states in the heart of Europe sovereignty, thus formally rendering the Holy Roman Emperor politically impotent [similar to a committee chairman of some 300 plus independent little sovereign nations loosely connected together]. . . ." (Thorbjorn L. Knutsen, A History of International Relations Theory, Manchester University Press, 1992, p. 71)
Keep in mind that the following little "countries" that were ceded were independent sovereign European nations after 1806. They were separate entities from each other. For example, even though the Principality of Cammin was part of the Kingdom of Prussia, this little principality was considered to be a distinct and independent realm; such that, the King of Prussia, the owner and sovereign, was recognized as the actual monarch or princely ruler of this little nation. He held the title as "Fürst zu Cammin" or "Prince of Kammin" in English. He held all the rights to govern and control it. The grand royal arms of Prussia carried its symbol and the Kings of Prussia claimed to be the dukes, princes and counts of this and many other realms in "full property and sovereignty." (http://eurulers.angelfire.com) (http://de.wikipedia.org/wiki/Titulatur_und
The following are just a few of the legal alienations, of whole and complete little European nations, that took place in the Congress or Treaty of Vienna in 1815:
ART. XV. His Majesty the King of Saxony renounces in perpetuity for himself and all his descendants and successors, in favour of his Majesty the King of Prussia, all his right and title to the provinces, districts, and territories, or parts of territories, of the kingdom of Saxony, hereafter named; and his Majesty the King of Prussia shall possess those countries in complete sovereignty and property, and shall unite them to his monarchy. (Thomas Curson Hansard, The parliamentary debates from the year 1803 to the present time, Volume 32, 1816, p. 79)
Note that the territories are called "countries," because they were recognized as true nations under the law.
ART. XVIII His Imperial and Royal Apostolic Majesty, wishing to give to the King of Prussia a fresh proof of his desire to remove every object of future discussion between their two courts, renounces for himself and his successors, his rights of sovereignty over the Margraviates of Upper and Lower Lusatia, which belonged to him as King, of Bohemia, as far as these rights concern the portion of these provinces placed under the dominion of his Majesty the King of Prussia, by virtue of the Treaty with his Majesty the King of Saxony, concluded at Vienna on, the 18th of May, 1813. (Ibid., p. 81)
Note that the King of Bohemia gave "his rights of sovereignty" over these little countries to the King of Prussia, who, by the way, he was not related to by blood.
ART. XXVII. His Majesty the King of Prussia cedes to his Majesty the King of the United Kingdom of Great Britain and Ireland, King of Hanover, to be possessed by his Majesty and his successors, in full property and sovereignty. . . . (Ibid., p. 86)
Note that the conveyance was "in full property and sovereignty." The were proprietary nations. The following is part of the Annex to the same Treaty in Act IV:
ART. II. His Majesty the King of Saxony renounces for ever, for himself, his heirs and successors, in favour of his Majesty the King of Prussia, all right and title to the provinces, districts, and portions of territory of the kingdom of Saxony, hereafter designated; and his Majesty the King of Prussia shall possess these countries in full sovereignty and property, and shall unite them to his monarchy. (Ibid., p. 141)
Note that the "designated" territories were again called "countries," that is, full nations, and they were given "in full sovereignty and property." Only "countries" or "nations" can have full sovereignty. This kind of legal recognition is what is called treaty law, which is a part of international law. They were examples of whole nations that were conveyed to completely new monarchs. With this fact in mind, no wonder the great diplomat Prince Talleyrand named a number of these little principalities and duchies in his writings and lumped them together with kingdoms calling them "countries" and "states" and declared that they were "sovereign." (op.cit., Memoirs, pp. 161, 169)
Jean J. Burlamaqui (1694–1748), one of the founders of international law, explained that, "they [patrimonial kings and princes] are permitted to share, transfer, or alienate [their sovereignty] . . . [In other words, a] prince shall have full right [and prerogative] to dispose of the crown [his kingdom or principality], as he shall think proper." (www.constitution.org/burla/burla_2107.htm) Alienation of this kind is highly unlikely in modern times, however, as Professor Stephen Kerr wrote, "It is competent under the traditional doctrines of public international law to alienate Sovereignty by inter-vivos transfer." (See Hugo Grotius, On the Law of War and Peace (1625) Book II, Chapter VI, Nos. 3 and 14; and Book I, Chapter III, No. 12) (See: "Dynastic Law")
Because giving away a whole kingdom was the right of a true king, Henry IV of Germany (1050-1106) about 1080 AD before he became emperor, told some of the leading princes of the Holy Roman Empire, who he had wronged, that he ". . . would willingly cede his right of governance to them and dispose of his whole kingdom . . . ," the kingdom of Italy, if necessary to make it up. (http://faculty.cua.edu/pennington
/ChurchHistory220/TopicFive/ChronicleHersfeld.html) However, he weaseled his way out of the agreement and held on to the kingdom for thirteen more years. The important point here is, that he could have ceded the whole kingdom, not whether he actually did it or not.
Ceding by treaties are often where kingdoms are conveyed from one sovereign to the new owner. Treaties are rich with examples of the alienation of kingdoms to new sovereigns. For example, in the Treaty of Utrecht in 1713, the following took place:
His Catholic Majesty [the king of Spain] also agrees, in response to the petitions of Her Britannic Majesty to cede the Kingdom of Sicily to His Royal Highness Victor Amadeo the duke of Savoy, with Her Britannic Majesty promising that in the absence of male heirs of the house of Savoy she will take care to see that the kingdom returns to the crown of Spain, and Her Britannic Majesty also agrees that said kingdom may not be alienated, under any pretext or any other way, nor given to any other prince or state, but only to the Catholic king of Spain and to his heirs and successors. (Jon Cowans, editor, Early modern Spain: a documentary history, 2003, p. 208)
In 1718, Philip V, the King of Spain, by the Treaty of London ceded the Kingdom of Sardinia to Victor Amadeus II, duke of Savoy and King of Piedmont. He ceded the Kingdom of Sicily to Austria. (http://en.wikipedia.org/wiki
/Kingdom_of_Sardinia) Many more examples exist throughout the years. However, perhaps, one of the best examples of a whole nations being ceded took place on January 14, 1814, "By the Treaty of Kiel, peace with Denmark is [was] concluded. Danish King Frederik cedes [ceded] to the king of Sweden, and his successors, the kingdom of Norway." (www.islandnet.com/~kpolsson/swedhis
/swed1800.htm) Here is an example, of an alienation of a whole country. For a little background, the Kingdom of Norway first began in 817 A.D. and lasted for hundreds of years on and off sharing other kings but remaining a separate and distinct as a land and people. In 1397, the three kingdoms were united under one king for awhile as follows and then only the kingdoms of Denmark and Norway shared the same king:
The Kalmar Union (1397-1536)
The United Kingdoms of Denmark, Norway and Sweden (1397-1523)
The United Kingdoms of Denmark and Norway (1523-1536)
In 1814, Frederik VI, king of both Denmark and Norway, as the rightful king of Norway renounced his rights and ceded the whole kingdom of Norway forever to King Charles XIII of Sweden and his descendants. King Charles XIII of Sweden, then separately became King Charles II to the people of Norway. This was done by Treaty of Kiel or by international law. In other words, it really is true, as the Austrian Emperor Francis II testified, "A prince can, if he wishes, cede . . . his country and all of his people [to another monarch or create a new kingdom or nation]." (Guglielmo Ferrero, The Reconstruction of Europe: Talleyrand and the Congress of Vienna 1814-1815, 1941, p. 261)
The Kingdom of Sarawak was an "independent kingdom," which had its beginning in 1842 when the Sultan of Brunei ". . . ceded the complete sovereignty of Sarawak to [James] Brooke," who had saved his throne from rebellions. (www.answers.com/topic/james-brooke) He became its first king and held the title of "Raja [or king] of Sarawak." In 1888, the second “white Raja” accepted the British Empire as a military protectorate. (http://en
/A0840302.html) In the treaty creating this protectorate, it was understood the Sarawak was an ". . . independent state under the protection of Great Britain;" and "such protection shall confer no right on his Majesty's government to interfere with the internal administration of that state. . . ." (www.1911encyclopedia.org/Protectorate) Legal experts ". . . affirmed the fact that Sarawak was indeed an independent sovereign state and that no case existed for interference in the internal administration of that country." (www.angelfire
Sarawak ". . . grew into a genuine sovereign power over the region." (http://coming
-and-the-white-rajahs) The first white Raja ". . . ruled as an absolute monarch with constitutional sympathies, perhaps akin in governance to the Tudor monarchy where a Parliament existed for advisory purposes only." (Ibid.) Sarawak was managed very well by its kings who were "efficient and orderly. . . . The rubber and oil industries boomed. Public service institutions grew stronger, complete with a penal code modeled on the British penal code, while local traditions were preserved and Christian missionaries outlawed." In 1941, ". . . a new constitution was adopted that turned the territory into a more genuine constitutional monarchy." (Ibid.)
Sarawak was not a fly by night kingdom. It was not just a kingdom for a day. It was a kingdom for over one hundred years.
"After World War II, the third Brooke to rule Sarawak ceded the territory to the Colonial Office of the British Empire for a sizeable pension, paid to him and his three daughters." (Ibid.) In other words, he sold his kingdom to Great Britain. His actions were objected to by the Raja Muda, or Crown Prince Anthony Brooke, which objection legally thwarted the cession, but after years of fighting, he gave up and renounced his "de jure" rights in 1951, so the transfer became fully and completely legitimated at that time.
Because monarchs could cede, alienate or dismember parts of their nations, some countries put it into their most sacred laws that such would never be allowed or permitted. For example, "Ferdinand IV King of Naples and III, King of Sicily . . . from 8 Dec 1816 reigned as King Ferdinand I of the Kingdom of the Two Sicilies. By Art 165 (III), Constitution of 1820/21, the King 'cannot alienate, cede, or renounce in any way to any other person the Royal Authority' and could only 'abdicate the throne in favour of the person of his immediate successor'" (www.chivalricorders.org/royalty/bourbon/twosicilies/bourbtsh.htm)
And last, by not least, one more transfer of all sovereignty "in totum." As reported in The New York Times for August 10, 1871:
. . . Thokambau, the leading chief, was by a meeting of the citizens of Levuka, proclaimed constitutional king of the Fijis. . . . The fact of the establishment of a new constitutional Government in the world may now be considered accomplished, and the 'kingdom of Fiji' will henceforth rank among the powers of the earth. (http://query.nytimes.com/mem
In other words, ". . . Fiji [was] "a State" with all the attributes of "internal sovereignty." (Charles St. Julian, The International Status of Fiji and the Political Rights, Liabilities, Duties and Privileges, 1872, p. 11) A new nation --- a kingdom had emerged. The Kingdom of Fiji was on the List of Sovereign States of the world for 1871 and every year thereafter until the King with his advisors and fellow chiefs ceded the kingdom to Great Britain in 1974. (http://en.wikipedia.org/wiki/List_of_sovereign
_states_in_1871) Seru Epenisa Cakobau, the senior warrior chief, became the king of the entire land in 1871. His title as king was "Tui Viti."
. . . He was recognised as king by the Western powers. In 1874, he was the lead signatory on the deed of cession which granted Britain sovereignty over the islands, and it was his efforts that brought Fiji under the guidance of the British Empire. After cession in 1874, all historical records refer to Seru Cakobau as only Vunivalu of Bau, or Ratu Seru Cakobau, indicating the title Tui Viti was lost when the sovereignty of Fiji was ceded to the British Crown. (http://en.wikipedia.org/wiki/Monarchy_of_Fiji)
Interestingly, the Great Council of Chiefs still recognize Elizabeth II as "Tui Viti" or the traditional Queen of Fiji in spite of the fact that Fiji is now an independent republic since 1987.
Both law and practice confirms the words of Hugo Grotius, one of the founding fathers of international law, that, "A free people, or a king, may alienate their territory, in part or in full." (On the Law of War and Peace, Book 2, ch. 6, no., sec. 7) In other words, "A state may cede its own domain ["in totum"], in order to become a part of another state. . . ." (George Grafton Wilson, Handbook of international law, 1910, p. 85) The "cession" may ". . . come as a result of war, or cession by gift, sale, exchange or other international act. The treaty of cession usually prescribes the conditions under which the transfer is made. . . ." (Ibid., p. 84)
None of the above is a surprise to people who know history. For example:
§ 10. There are numerous examples of such treaties of sale. In 1301, Theodoric, Landgrave of Thuringia, sold the Marquisate of Lusatia to Burchard, Archbishop of Magdeburg, for six hundred marks of silver, --- "insuper cum ministerialibus, Vasalis et Mancipiis, et aliis hominibus cujuscunque conditionis in jam dicta terra commorantibus," etc. In the same manner, in 1311, Dantzic, Derschovia and Swiecae, were sold by the Margrave of Brandenbourg to the Grand Master of the Teutonic Order, for ten thousand marks. In 1333, the city and territory of Mechlin was transferred for one hundred thousand reals of gold, by a treaty of sale between its sovereign and the Earl of Flanders, the fealty being reserved. About the same time, the city and county of Lucques were sold by John of Luxemburg to Philip of Valois, for one hundred and eighty thousand florins; and a few years after, the sovereignty of Frankenstein was sold by the Duke of Silecia, for two thousand marks, to the king of Bohemia. The sovereignty which the Popes so long held over Avignon Avas purchased by Clement VI., for eighty thousand florins, from Jane, Queen of Naples and Countess of Provence. (Ward, Law of Nations, vol. 2, pp. 258-260; Dumont, Corps Lip., liv. 2, pp. 330, 364, 365; Dupuy, Droits de Boy F. C, p. 70; Leibnitz, Cod. Dip., p. 200; Biquelme, Derecho Pub. Int., lib. 1, tit. 1, cap. 2.)
§ 11. The practice also extended to the mortgaging of sovereignties, and the sales of reversionary interests in kingdoms. Thus, Robert, duke of Normandy, in order to raise money to engage in the first crusade, mortgaged his dutchy for six thousand six hundred and sixty-fix pounds weight of silver, to his brother William, and transferred the possession before his departure for the holy land. In 1479, Louis XL bought the right of the house of Penthievre, the next male heirs in reversion, to Britanny. And fifteen years later, Charles VIII purchased, for an annual pension of four thousand three hundred ducats, an estate of five thousand, in lands in France or Italy, and the disposition of the Morea (when conquered,) of Paleologus, the nephew of Constantine, the last Christian emperor, his right to the whole empire of Constantinople. The act of sale being drawn up by two notaries, and ratified, Charles assumed the robes and ornaments of the imperial dignity, and made no scruples in claiming the imperial rights vested in him by virtue of this purchase. (Ward, Law ef Nations, vol. 2, pp. 260-262 ; Garnicr, Hist, de France, liv. 1, pp. 429, 461, 494; Russell, Hist Modern Europe, vol. 1, pp. 185, 472; White, Hist. of France, p. 208.)
§ 12. It was also the custom to dispose of sovereignties and dominions by deeds of gift, and by bequests. The emperor Lewis V., created the dauphin Humbert king, with the full privilege of disposing of his sovereignty at will, during life, or at his death. In 1343, Humbert ceded his dominions to Philip of Valois, by solemn deed of gift. By similar deeds, and upon a like principle, the emperor Henry VI. conferred upon Richard I, the kingdom of Aries, and the emperor Baldwin gave to the duke of Burgundy the kingdom of Thessalonia. By bequests, not only were whole sovereignties disposed of, but the orders of succession were frequently changed. Thus, Charles H., king of Sicily and count of Provence, changed by will the order of succession to the county, and the claims of Charles VHI to the throne of Naples were founded upon the adoption of Louis of Anjou, by Jane, queen of Naples, in 1380, which was evidenced to all Europe by a solemn and public deed. (Ward, Law of Nations, vol. 2, pp. 262-264; Leibnitz, Cod. Dip., pp. 51, 237, 158, 220, 382; Pfelfel, Droit Pub. d'AUemagne, tome 1, p. 541; Henault, Hist. Chron, tome 1, p. 315; Dumont, Corps Dip., tome 1, pp. 288, 337, 362.) (Henry Wager Halleck, International Law: Rules Regulating the Intercourse of States in Peace and War, 1861, pp. 128-130)
In other words:
§ 7. A state may acquire property or domain in various ways ; its title may be acquired originally by mere occupancy, and confirmed by the presumption arising from the lapse of time; or by discovery and lawful possession; or by conquest, confirmed by treaty or tacit consent; or by grant, cession, purchase, or exchange; in fine, by any of the recognized modes by which private property is acquired by individuals. . . . (Wheaton, Mem. Int. Law, pt. 2, ch. 4, §§ 1, 4, 5 ; Phillimore, On Int. Law, vol. 1, § 221-277 ; Grotius, de Jur. Bel. ac Pac., lib. 2, cap. 4; Vattd, Droit des Gens, liv. 2, chs. 7 and 11; Rutherforth, Institutes, b. 1, ch. 3; b. 2, ch. 9; Puffendorf, de Jur. Nat. et Gent., lib. 4, chs. 4, 5, 6; Moser, Versuch, etc., b. 5, cap. 9; Martens, Precis du Droit des Gens, § 35, et seq.; Schmaltz, Droit des Gens, liv. 4, ch. 1; Kluber, Droit des Gens, §§ 125, 126; Heffter, Droit International, § 76; Ortolan Domaine International, §§ 53, et seq.; Bowyer, Universal Public Law, ch. 28; Bello, Derecho Internacional, pt. 1, cap. 4; Biquelme, Derecho, Pub. Int., lib. 1, tit. 1, cap. 2; Burlamaqui, Droit de la Nat. et des Gens, tome 4, pt. 3, ch. 5.) (Ibid., pp. 126-127)
(For hundreds of examples, see Edward Hertslet's book, The Map of Europe by Treaty showing the Various Political and Territorial Changes which have Taken Place since the General Peace of 1814, three volumes, 1875)
So in conclusion, "As far as the Law of Nations is concerned, every State as a rule can cede a part of its territory to another State, or by ceding the whole of its territory can even totally merge in another State." (Lassa Francis Lawrence Oppenheim, International Law: A Treatise, vol. 1, no. 215, 1920, p. 377) Thus whole nations can be ceded as evidenced by the above examples. Hugo Grotius explained that, ". . . The law of nature . . . allows every man [even a sovereign] the right to relinquish what is his own. . . ." (Hugo Grotius, The Rights of War and Peace, Book II, chapter 4, no. 4) ". . . A right to property may be renounced, not only by words but also by actions, or any other indication of the will. . . . Nor is there any reason, why the same rule [concerning the transfer of sovereignty] may not take place between sovereign princes, and independent states, as [the transfer of property] between individuals." (Ibid.)
(31) But I thought sovereignty was inalienable?
Is not the principle of inalienability itself a limitation on sovereignty [sovereignty being supreme and ultimate authority above all others]? Surely a sovereign who cannot alienate his sovereignty has his freedom of action [his highest of all powers] limited by that very fact? (Ali A. Mazrui, "Alienable Sovereignty in Rousseau: A Further Look," Ethics, vol. 77, no. 2, January 1967, p. 108)
A deeper understanding of sovereignty, which the numerous examples in the last question clearly demonstrate, makes it clear that:
1. "indivisible" means it cannot be divided unless those in supreme power and authority, which is above all authority, freely and willingly without any coercion permit it to be segmented or partitioned;
2. "inalienable" means it cannot be alienate without the full and absolute consent of those who own all the rights to that sovereign power and influence, which is above all authority in the territory; and
3. "indefeasible" means that the greatest power and honor of the nation cannot be annulled or made void by any outside authority of itself. But it can make up its own mind, with the supreme-supernal power it possesses to do whatever it wants to.
In other words, sovereignty can be divided, it can be alienated and it can be transferred and sold, if those, who hold this supreme right to control things, decide to do so. As Hugo Grotius declared, ". . . sovereignty can be alienated by the one under whose control it in reality is. . . ." (On the Law of Peace and War, Book II, chapter VI, no. 3)
Because sovereignty means that no outside force has a right to interfere or meddle, then, these inherent rights become inalienable, immutable, incorruptible and inviolable to everyone but the sovereign himself. What this really means is:
. . . that they may not be alienated from the person who possesses them, i.e., they may not be given or taken away [without his or her consent], i.e., they may not be morally infringed upon [by any outside force]. . . . For example, a man may violate your right to your property by taking it away from you, but your right to that property has not been alienated [you still hold the right], i.e., you are in the right and the robber is in the wrong. (http://www.capitalism.org/faq/rights.htm)
It needs to be remembers that monarchs own their right to rule. It is their property. Johann Wolfgang Textor (1749-1832), the famous German publicist and International lawyer, wrote, ". . . In an elective kingdom . . . the royal right is essentially the same, and therefore, an elective King is a true owner of his kingdom just as the King of a . . . [hereditary] non-patrimonial kingdom is." (Synopsis of the Law of Nations, ch. XX, no. 24, 1680) And ". . . a non-patrimonial kingdom . . . is . . . in the position of the possessor [owner] of a majorit [which is a right to property by a title of honor, such as being king or prince]." (Ibid.) In other words, ". . . the possessor of a majorit is during his life is a true owner, and not merely a usufructuary [one that used someone else's property]. . . ." (Ibid.) So, "Sovereignty is a property which is absolute and indivisible . . . which belongs to the Sovereign. . . ." (Jacques Maritain, "The Concept of Sovereignty," The American Political Science Review, vol. 44, no. 2, June 1950, p. 349)
As an additional way of transferring royal authority . . . was the inheritance treaty. This was . . . a formal agreement between sovereigns to provide for the contingency that one of them might die without legitimate heirs. If this occurred the surviving royal house acquired a legal claim to the throne of its extinct partner. . . . They were openly based on the premise that royal power was essentially a private matter. Sovereigns [kings and princes] regarded their authority as essentially disposable . . . like any other personal possession." (Jean W. Sedlar, A History of East Central Europe: East Central Europe in the Middle Ages, vol. 3, 1994, p. 42)
No matter what kind of king or sovereign prince, sovereignty, once given, is owned. But above all others, in a true patrimonial kingdom, the monarch not only owns the right to rule or possesses full sovereignty, but he owns all the land as well. This is perhaps the highest type of king or sovereign monarch on earth. He truly personifies and embodies the nation in full property and sovereignty. Therefore, "Where the sovereignty is a full property right, it includes ownership of the land and the people, and the right to dispose of all at pleasure." (Charles Edward Merriam, History of the Theory of Sovereignty since Rousseau, 1900, p. 377) But for anyone who holds hereditary sovereignty, they ". . . had a right to supreme power which was natural and inalienable, inalienable to such a degree that dethroned [deposed] kings and their descendants kept this right forever. . . ." (Ibid., pp. 343-357)
Professor Textor rhetorically asked the question: "Whether a King can or can not alienate [sell or give away] his sovereignty [his royal rights] without his people's consent." He then explained, "Grotius says that he can in a patrimonial kingdom, because it is within the King's absolute discretion, but that he can not in a limited monarchy." (De jure belli ac pacis libri tres, Book II, chapter 6, no. 3+) In other words, a regnant patrimonial King or Prince can do so because ". . . he has full dominion and power of disposition" as the owner of all the land as well as being the Lord and reigning Monarch. (Ibid., p. 318)
Whatsoever is their right . . . in their private possession [such as sovereignty], they may alienate as any private person may his lands. Thus Solomon gave the twenty cities (which his father-in-law the king of Egypt had conquered and given him with his wife in dowry, and which himself had won) to Hiram [the king of Lebanon]. Alexander [the great] gave all his kingdoms to his princes that served him in his wars. Attalus gave Asia to the people of Home; Nicomedes gave Bithynia [a kingdom] . . . by gift. . . . (Jeremy Taylor, The Whole Works of the Right Rev. Jeremy Taylor, Reginald Heber, Charles Page Eden, Alexander Taylor, eds., vol. X, chapter III, rule 1, no. 11, p. 170)
This absolute power is similar to what a "de jure" non-reigning king or prince can do, which is the right to sell the "de jure" rights to one of his many little countries or even sell all the sovereign rights to his kingdom or even an empire. This was done by Andreas Palaiologos among other example. "Andreas (Andrew) . . . was the only legitimate representative of the dynasty of the Palaeologi, who possessed the rights to the lost Byzantine throne." (A. A. Vasiliev, History of the Byzantine Empire, 324-1453, Vol. 2, 1952, p. 590) This man was the "de jure" or rightful non-reigning successor to the Byzantine Empire. He legitimately sold all his "de jure" royal and imperial rights, titles and prerogatives, "which were genuine," to Charles VIII, the King of France, in 1494. (See the subchapters: "Ownership and Property Rights" and "The King and the Constitution as well as How Sovereignty can be Permanently Lost" in the article "Sovereignty & The Future of Nobility and Royalty") "Foncomagne has published the original draft of this act of cession which is in the Library of Paris. See Mem. de l'Acad. d. Inscript., XVII., 539-78 (Paris, 1751); DELAbOrDE, 405, gives a portrait of Charles, adorned with Imperial Insignia, out of the Coll. Gaignieres d. Bibl. Nat. t BUrCharDI Diarium, II., 226 seq.; Sanudo, Spediz., 192" (Dr. Ludwig Pastor, The History of the Popes: from the close of the Middle Ages, vol. 5, 1902, p. 461) Of course, this could not be done in our day and age, but back in those days, as Johann Wolfgang Textor testified, a ". . . [patrimonial] King can dispose of his Kingdom [the whole kingdom] and any part of it, in his own right. . . ." (Ibid., p. 81) So also can a "de jure" nonreigning monarch cede his or her royal and/or imperial rights. (See "Question #30")
There is another factor that must be considered in any alienation. A lawful heir can rightfully stop an alienation or cession from happening as he has a powerful birthright to rule after his father, However, if he consents, is acquiescence or silent, when he could and should have spoken up and protested, estoppel kicks in, then it is presumed that the right is abandoned on a permanent irretrievable basis. At this point, nothing can be done to reclaim it. It is lost. (See "Abdications, Renunciations and Annexations" in the article "Sovereignty & The Future of Nobility and Royalty")
But every land, title and sovereign realm is "inalienable," or impossible to divide, unless the reigning monarch, or in the case of a disposed "de jure" prince, this person willingly consents or decides to alienate it. The key here is one must give his willing consent, otherwise, such an alienation is impossible. Jean J. Burlamaqui explained that "the princes of the blood royal [in a hereditary realm] . . . certainly [have] an absolute and irrevocable [sovereign] right, of which they cannot be stripped without their consent." (www.constitution.org/burla/burla_2204.htm) No one can lawfully ". . . acquire another man's property [or his royal rights and privileges] without his consent, for to deprive another against his will . . . runs counter to all Law." (Johann Wolfgang Textor, Synopsis of the Law of Nations, vol. 2, 1680, p. 72) Prince Talleyrand wrote, ". . . A cession or renunciation is null, if it has not been freely made. . . ." (op.cit., Memoirs, p. 160) Hence, it is that sovereignty is inalienable unless the reigning king, or sovereign prince, or a rightful successor, willingly consents to an abdication, renounces the throne, cedes it or loses it by acquiescence, implied waiver, or estoppel, which in international law is a close cousin of acquiescence and prescription.
Jean Bodin (1530–1596), a renown French jurist and philosopher, declared that the French kings ". . . on their accession to the throne they took an oath never to alienate the domain." (Six Books of the Commonwealth, Book VI, ch. 2) Such an oath would not be necessary if it was not widely known and a common practice in medieval times that alienation, etc. was possible for a whole entire kingdom or principality, because such was done. Bodin explained, "This is not a rule peculiar to this kingdom [meaning France alone], but is a custom binding on the Kings of Spain, Poland, and England, for they also are required to take an oath against alienating the domain." (Ibid.) The point is, whole nations were, in fact, alienated, willed, discarded, sold and lost by the various means already explained, such as, those little "countries" that were ceded by the Treaty of Vienna.
However, there is another international legal term called "laches," which also impacts on either the loss or maintenance of "de jure" royal and imperial rights. "Laches is derived from the French 'lecher' and is nearly synonymous with negligence." (www.lectlaw.com/def/l056.htm) It is used, "In addition, or as an alternative, to the principle of acquiescence, international tribunals have applied the doctrines of extinctive prescription and laches to bar a claim on the basis of undue delay." (Andrew Newcombe & Lluís Paradell, Law and practice of investment treaties: standards of treatment , 2009, p. 525) "Undue delay" means a failure to make the proper protest to keep "de jure" rights alive, safe and faraway from the potential of permanent loss. Latches is similar to "statues of limitations" only it is not statutory, but part of equity law. It comes from the Latin expression vigilantibus non dormientibus aequitas subvenit, which means "equity aids the vigilant, not those who sleep on their rights." In other words, neglect to assert a claim makes one vulnerable to its loss. As in other principles of the transfer of sovereign rights from one state or sovereign to another, a defense from such can be insanity, infancy, undue influence, duress or a substantial threat to life, limb, family or financial ruin or disaster.
(32) Yes, it is obvious sovereignty can be sold, at least in olden times, but can a deposed sovereign, or his successor, sell his sovereignty? I believe the only example of such is Andreas Palaiologos, who sold all his "de jure" imperial rights to the Byzantine Empire to the King of France.
Note the following analogy and the conclusions of Dr. Stephen Kerr wrote:
Kept alive by diplomatic protests [according to the principles of prescription] made by King Francis II and the Count of Caserta, their claim . . . may be analogized [compared] . . . to the claim of the owner of a stolen automobile who has kept his claim of de jure ownership of that car 'alive' by filing a report with the competent police authorities: See Whiteman, Digest of International Law, Vol. I, "Governments-in-Exile," pp. 921-930; F. E. Oppenheim, "Governments and Authorities in Exile," 36 American Journal of International Law (1942), pp. 568-595; and Oppenheim-Lauterpacht, International Law, Vol. I, No. 144. ("Interim up-date of Professor Kerr's 1973 Research --- Part 2:" http://web
That owner may not be in de facto possession of that automobile, but having filed the claim with the police he remains the de jure owner of that car. This 'claim' to the stolen automobile is not the mere 'expectation of a right.' Rather this 'claim' possesses real substance in the ownership of that stolen car --- given the filing of the necessary report with the police to keep that claim alive. Because this 'claim' to the stolen automobile has real substance in the basis of the police report asserting ownership to the car, this 'claim' can be sold or disposed of i.e., to an insurance company) as can any other 'claim'. For example, insurance companies will frequently pay off the claim of an owner of a stolen car and then assert ownership to the car once it has been recovered. (Ibid.)
If the original owner fails to make any claim whatsoever on the stolen car or any official complaint about it, the car's ownership can be legally transferred to the thief, the usurper, simply with the passage of time wherein a new title can be applied for. This happens because of domestic prescription and abandonment laws. If a protest is made, then it can be considered fraud, but if not, then with the passage of time as in prescription, the usurper can obtain a valid title. That is, the original owner must be able to prove he owned it, it was stolen and not abandoned. Positive law gives the car to the usurper after a specified period of time different for each State of the Union. This also happens with sovereignty.
. . . Competent protests [under the principles of "prescription" are] not a mere "expectation of a right" but [are] a definite claim of real, concrete substance under public international law. As an international claim of real substance . . . the claim of the Bourbons of Naples to the Two Sicilies . . . is as renounceable and disposable as is any other claim under international public law. States frequently settle differences by renouncing various international claims against each other: See Oppenheim-Lauterpacht, International Law, Vol. I, Nos. 486 and 488. (Ibid.)
Yes, "de jure" sovereignty, that is, the rights to both deposed and reigning sovereignty, is "renounceable and disposable." Two more examples of non-regnant "de jure" sovereignty being ceded are as follows: (1) The Raja Muda, or Crown Prince of Sarawak, Anthony Brooke, objected to the sale of the Kingdom to Great Britain by the king, which took place in 1946. The Raja Muda, then "de jure" or rightful king, renounced his "de jure" rights in 1951. The Kingdom, then, became a legally and lawfully part of the British Empire, and (2) In 1457, the Sultanate of Sulu was established as independent sovereignty. In 1915, Sultan Jamal ul-Kiram II surrendered his political powers to the United States government under what was called the Carpenter's Agreement. Sulu ceases to exist under the Sultans at this time, but the Sultans continued to claim royalty, then in 1962, the Philippine government formally accepted a transfer of claims of "de jure" sovereignty over the former territory ruled by the Sulu royal house. This loss of non-reigning legal sovereignty meant a total and complete loss of all royal rights, prerogatives and claims to regal majesty. As an obvious result, the Sultans of Sulu today are figure heads only, and have no right to be "founts of honor" as all "de jure" royalty was ceded to the Republic of the Phillipines. (http://en.wikipedia.org/wiki/List_of
A deposed "de jure" sovereign, or a successor to the same, is theoretically totally free and independent from all power outside himself. He holds the supreme, ultimate power that cannot be interfered with, that is, the highest right or entitlement on earth. Such a man can sell, renounce, abandon, will, transfer or cede all he possesses to someone else. In fact, ". . . only rights and rightful claims [to sovereignty] can pass over to others [or be ceded, sold or willed to another]. . . ." (The Law Times: The Journal and Record of the Law and the Lawyers, vol. 46, November 8, 1868, p. 65) "Sovereignty is a right. . . ." (Darrel Moellendorf, Cosmopolitan Justice, 2002, p. 105) Not necessarily an actual power. It is an intangible, abstract concept --- a legal, moral and ethical entitlement to something supreme. But like any other right, it may not be enjoyed or experienced. That is, a sovereign may be denied the privilege of reigning over his kingdom or principality just like a man may be denied the use of his automobile by a thief. However, sovereignty being an "incorporeal hereditament" means it is real [or royal] property, not moveable property, but intangible actual property. As such, it is "renounceable and disposable," which means it can be sold or given away.
Andreas Palaiologos' sale of all his "de jure" imperial, royal and sovereign rights and titles to the King of France, Charles VIII in 1494 was an authentic conveyance, which he had a total and absolute right to do. Two kings later, under Francis I, it was still being claimed that the kings of France were the emperors of Constantinople. Not until Charles IX, did the claim come to an end as a result of disinterest. (David Potter, A History of France, 1460-1560: The Emergence of a Nation State, p. 33) This disinterest was the equivalent of an abandonment, wherein the rights were discarded.
Professor Noel Cox explained that, ". . . Time . . . erodes the de jure authority of an exile . . . through desuetude." (Letter of January 21, 2010) That is, if the "de jure" sovereign does nothing, which is "desuetude" --- doesn't even use his titles, it is like the man who fails to report his stolen car, which protest must be renewed with each new successor. If this claim does not take place, the car, the Imperial rights, can then become the legal, even rightful, property of the usurper --- the Ottoman Empire in this case. In other words, by "prescription:"
. . . [peaceful] possession [of defacto sovereignty] for time out of mind [time immemorial --- considered to be 100 years], uninterrupted and unchallenged, conveys absolute ownership. A right may thus be transferred from king to king or from people to people by dereliction [neglect] followed by assumption of possession, as well as by express consent. Even the rights of sovereignty may be so acquired. (Thomas A. Walker, A History of the Law of Nations, Volume 1, 1899, p. 296)
"Sovereignty like anything else may be conveyed [lost or sold]." (Thomas A. Walker, A History of the Law of Nations, vol. 1, 1899, p. 297) Or, it can be maintained without end as long as the royal house continues to exist. Sovereignty like any other true right is inalienable and inviolabe unless freely given up. Edmund Burke wrote, ". . . the king does not lose his quality [his imperial royalty] merely by the lose of his kingdom. If he is stripped of it unjustly by an usurper, or by rebels, he preserves his rights. . . ." (The Works of the Right Honourable Edmund Burke, vol. 4, 2007, p. 332) That is, he, and his successors, continue to own their royal right to rule even if there is no kingdom to rule over, because these rights are inviolable --- a word that means by definition, indestructible. It cannot be destroyed by any outside force. They can only be surrendered by implied or overt abandonment via cessation, "prescription" or some other legal form of forfeit or abdication.
To keep the precious gift, rights, privileges, crowns, and honors of sovereignty, protests must be made, titles must be used, interest and desire must continue in every generation. (See question (#7) of Part I)
(33) The statement has been made that "In all the history of mankind, no deposed monarch has ever lost his rights except through debellatio." What about it?
Debellatio is a legal term that needs to be understood in order to comprehend what was said and where it has departed from the truth:
Debellatio means the act of conquering or subduing. The term indicates end of a war caused by complete destruction of a hostile state. For example, the Second World War ended with a complete breakup of the German Reich. The term means complete subjugation of a belligerent nation. This involves a loss of sovereignty. It is a totality of military defeat in a war. The acquisition of a territory after a war in the absence of any peace treaty, because the defeated state has ceased to exist, is known as debellatio or subjugation. (http://definitions.uslegal.com
Debellatio can result or be the outcome of conquest for several reasons. It can happen because the royal family are killed and no successor or collateral house exists, the monarch abdicates (renounces rights) for himself and his heirs and there are no successors who protest the act, but rather acquiesce to it, the monarch cedes, sells or gifts all rights to the usurper without protest from any successor or collateral dynast, or they can give up their rights by acquiescence or silence, which is implied abandonment. None of these methods are valid unless they are done by free will and consent --- if they are coerced, the act is null and void, and silence, by reason of a valid threat or act under duress, is invalid.
Debellatio usually only takes place during the subjugation itself by definition. However, a deposed monarch, or his successors, can abdicate, renounce, or cede away their "de jure" internal rights to royalty and sovereignty at any time thereafter according to the principles of "prescription." A number of authentic examples of such has already been provided in the questions and answers of this website.
Deposed monarchs can also lose their "de jure" internal rights to all their sovereign and royal privileges merely by implied abandonment, acquiescence or silence through an act of indifference by a failure to use their royal titles and arms. Dethroned monarchs, or their successors, can lose all their rights outside of debellatio and years after the loss of their territories.
The idea that "as long as there's blood that internal sovereign rights are forever and cannot expire by any means" taken to its logical conclusion is irrational. For one thing, it denies that a person can renounce his rights and thus lose them, which would deny a person his freedom as a human being and his or her right to alienate anything unwanted. So there is an ethical problem. It also contradicts history and law as demonstrated in the last few question / answers. But as will be shown, it also goes contrary to logic and reason as well. Extreme views are almost always false on the face of it. Consider the following as food for thought on this important subject:
Are dispossessed kings and their descendants royal forever? Do they never lose their rights from generation to generation forever? Think about it. If this were true, then practically everyone on earth would be a royal, and no one, not a single person, would be a commoner. How extreme is this? (Genealogists declare that most of the people who have survived through the dark and diseased ages of the past are probably descended from royalty somewhere along the line.) (See: "Royal and Noble Genealogy")
The point is, no reasonable person on earth believes that practically every living sole is royal and/or sovereign. This kind of thinking is not sound. Obviously, only a very few people are members of the high nobility, because royalty is always exclusive, not inclusive of the whole earth. It is self-evident that the great majority of people, even if they have ancient connections to royalty, as most people do, are just people. Lose of all sovereign rights are built into the reality of all systems of government. For example, the great grandchildren of most monarchs lose royal status merely by being great grandchildren. It is ludicrous to think that all the people of the world --- the descendants of all the monarchs who ever lived are all royal princes. It is absurd that practically everyone on earth should be addressed as "His or Her Royal Highness." The idea that "de jure" internal sovereignty is never lost is nonsense.
Jean Jacques Burlamaqui explains why "prescription" and the lose of internal "de jure" sovereignty rights are absolutely necessary to good government. He declared that it ". . . is requisite for the interest and tranquillity of societies; [that] a long and quiet possession of the supreme power must establish the legality of it, otherwise there would never be an end of disputes in regard to kingdoms and their limits. . . ." (The Principles of Natural and Politic Law, Book 2, part 2, chapter 3, no. 10) Why? Because if everyone, being soveriegn and royal, had rightful claims, ". . . this would be a source of perpetual quarrels, and there would hardly be any such thing, as a sovereign lawfully possessed of the supreme authority." (Ibid.)
The only law which supports dispossessed monarchs and their heirs and preserves their right to the royal prerogative is "prescription." Internal dynastic rights or sovereignty is both upheld by "prescription" and lost by it. It supports whatever is "defacto" unless there is a dethroned monarch in the background who is making it unmistakable, by the use of his titles and arms, that he is the rightful ruler of the land. Because as stated by Dr. Kerr:
Such de jure sovereignty can be kept alive indefinitely [that is, without any limit as to time] by a competent series of diplomatic protests [consistent use of titles and arms, etc.]. It survives in international law until such sovereignty is specifically renounced in favour of the usurper. (Letter of January 21, 2010)
If it is never renounced, but kept alive, it lives on. However, sovereignty is lost because, "The general consent of mankind has established the principle [of prescription] that long and uninterrupted possession by one nation excludes the claim of every other [possible claimant including all deposed monarchs]." (op.cit., Bouvier)
The local law of "prescription" in private property concerns, in most municipal jusrisdictions, range from 20 to 40 years by postive law for a claim to mature into a full blown title for the actual possessor of the land. On an international level:
The length of time required for acquiescence has never been determined by a tribunal, but most writers on international law suggest that fifty years or more without interruption are required for the acquisition of title by prescription to occur. (Christoph Bluth, "The British Resort to Force in the Falklands/Malvinas Conflict 1982: International Law and Just War Theory," Journal of Peace Research, vol. 24, no. 1, March 1987, p. 8)
". . . Municipal statutes of limitation can not operate to bar an international claim." (United States and Venezuelan Claims Commission, 1889-90, Opinions, p. 79) Nevertheless:
. . . the reason which lies at the foundation of such statutes, that "great principle of peace," is as obligatory in the administration of justice by an international tribunal as the statutes are binding upon municipal courts. (United States and Venezuelan Claims Commission, 1889-90, Opinions, p. 79)
Therefore, a statute of limitations is appropriate. "Legal scholars differ as to the specific period needed for acquisitive prescription to occur. Some have suggested 100 years, while others opt for 50." (Ibrahim Al Abed and Peter Hellyer, United Arab Emirates: a New Perspective, 2001, p. 187) The following represents are few examples of jurist's and historical writings in regard to the time in which prescriptive measures come into full effect and power:
(a) "But if a tyrants successors have held sovereignty for a long period of time, such as a hundred years, then, here as in other matters, the prescription of so long a period can serve as a title." (Jean Bodin, On Sovereignty: Four Chapters from the Six Books of the Commonwealth, Julian H. Franklin, ed., 2004, p. 112)
(b) "As the Legitimists admit that if a dynasty occupies a throne for one hundred years without a protest it obtains a prescriptive right. . . ." (B. Waters, “New Kings on Old Thrones,” Pearson's Magazine, February 1898)
(c) "The concept of immemorial possession was received into Castile in its Roman law form. It was defined as one hundred years of 'quiet and peaceful possession without any contradiction'." (John Edwards, Christian Córdoba: The City and its Region in the Late Middle Ages, 1982, p. 17)
(d) "Centennial [100 years] or immemorial possession of a privilege gives rise to the presumption that it has been granted." (The Canon Law Societies Of Great Britain And Ireland, Australia and New Zealand and Canada, The Cannon Law, Book I, chapter 4, no. 2, 1983)
(e) "A hundred years possession, a centenary prescription, immemorial possession," are defined as being synonyms or as having equal meanings. (Joseph Leonhard Hilpert & Ernst Friedrich Kä, A Dictionary of the English and German, and the German and English Language, Part 1, 1857, p. 579) (Charles Fleming, J. Tibbins, Royal Dictionary, English and French and French and English, vol. 2, "Centenaire," 1885, p. 172) (Alexandre Boniface, Dictionnaire Français-Anglais et Anglais-Français, "Centenaire," 1836, p. 194)
(f) ". . . the legal institution of immemorial prescription or of time immemorial means that --- as has been recognized, especially with regard to sovereign rights --- a legal foundation is acknowledged for a legal exercise of right since the memory of man, that is, eighty to one hundred years, and has been actually uncontested, regardless of titular proof." (American Society of International Law, The American Journal of International Law, vol.15, 1921, p. 169)
(g) "As to immemorial prescription [100 years], what we have said regarding it (§ 143) will make it sufficiently clear to everyone that it must necessarily hold good as between Nations." (Emer de Vattel, The Law of Nations, Charles G. Fenwick, trans., Book II, chapter 11, no. 149, 1758, p. 159) Although "Grotius deemed a 'possession beyond memory' (possessio memoria excedens) essential," less than 100 yeas have been recommended and practiced in international tribunals and councils. (Charles Cheney Hyde, International Law chiefly as Interpreted and Applied by the United States, vol. 1, 1922, p. 116)
(h) "The great majority of the writers insist that possession is confirmed by time immemorial . . . such as Savigny [who] construe[s] immemoriality to be two generations [66 years], because of the possibility of securing the direct testimony of the present owner from his own knowledge and from that acquired from his predecessor. Other writers, such as Fiore, David Dudley Field, Bourgeois and Renault, prescribe the period of a half century [or 50 years]." (Vicente Santamaría de Paredes, A Study of the Question of Boundaries between the Republics of Peru and Ecuador, Harry Weston van Dyke, trans., 1910, p. 293)
(i) ". . . If it concerns the acquisition of unimportant territory, a possession for fifty years might be considered as sufficient [rather than immemorial possession which would require a 100 years]." (Pasquale Fiore, International Law Codified and its Legal Sanction, no. 1078, 1918, p. 428) However, ". . . There is no authority that 30 years is a sufficient amount of time to give effect to the prescriptive title." (Jessup Competition 2010, "The Case concerning the Windscale Islands," Bench Memorandum of Judges, version 4.1, p. 12) Hence, 50 to 100 years is often recommended and most court cases are usually adjudicated with this amount of time as just and sufficient for the transfer of the internal right to rule. "Grotius demanded a continuous possession during one hundred years. Vattel [merely] stated that it must be a possession for "many years. . . ." Great Britain and Venezuela recognized a fifty year prescription [between nations]." (Louis M. Bloomfield, Egypt, Israel, and the Gulf of Aqaba in International Law, 1957, p. 103) "Most writers in international law, including Hugo Grotius and L. Oppenheim, argue that an uninterrupted span of fifty to a hundred years is required before title is prescripted." (Lowell S. Gustafson, The Sovereignty dispute over the Falkland (Malvinas) Islands, 1988, p. 34)
(j) Another confirmation to the above came through the Anglo-Norwegian Fisheries Case wherein the international court considered 60 years, without Great Britain making any protest, was sufficient for total loss of the right to rule the territory involved, which was being ruled over by the Kingdom of Norway. (Fisheries case, Judgment of December 18th, 1951: I.C.J. Reports 1951, p. 116 (p. 138)
(k) "In his outlines of an international code [David Dudley] Field [(1805-1894) a well-known legal scholar] has proposed a positive rule requiring fifty years as the necessary period of a national prescription." (Hannis Taylor, A Treatise on International Public Law, no. 219, 1901, p. 266) He wrote, "The uninterrupted possession of territory or other property for fifty years by a nation excludes the claim of every other nation." (Lassa Oppenheim , International Law: a Treatise, vol 1, note 2, 2005, p. 402)
(l) ". . . The period of fifty years . . . has met with general favor and will very probably be recognized for the future as the necessary period." (Edwin Maxey, International Law with Illustrative Cases, 1906, p. 147)
(m) A treaty between Great Britain and Venezuela in 1897 as mentioned above ". . . affirmed that fifty year prescription gave good title." (Quincy Wright, The Enforcement of International Law through Municipal Law in the United States, 1915, p. 24) The exact quote, which is oft repeated and has gain a great deal of approval worldwide, is that, "Adverse holding or prescription during a period of fifty years shall make a good title." (Alexander Marie Stuyt and T.M.C. Asser Institute, Survey of International Arbitrations, 1794-1989, no. 207, 1972, p. 212)
(n) The point is, "For fifty years they held uninterrupted possession of New Netherland, and adverse possession confers a valid title by prescription on nations as on individuals." (Isaac Grant Thompson, The Albany Law Journal, vol. 20, p. 466)
(o) ". . . Acquisitive prescription . . . states that after all nations [who have claims] have acquiesced to one nation's de facto control of territory for a period of time, often fifty years, that nation gains legal title to that territory." (Lowell S. Gustafson, The Sovereignty Dispute over the Falkland (Malvinas) Islands, 1988, p. xii)
(p) ". . . The rule of the usurper cannot become morally legitimate before the end of two or three generations. After a period of that length, the new government will possess authority by the title of prescription. . . ." (John A. Ryan, "Catholic Doctrine on the Right of Self-Government," Catholic World, vol. 108, January 1919, p. 444) Since a generation is considered to be about 33 and 1/3 years, this recognizes that a transfer of title to internal soverignty rights takes place after a period of 66 and 2/3 years to 100 years.
(q) Under the subtitle of "Time necessary to establish international prescription," the recommendation was "50 years." (Hannis Taylor, A Treatise on International Public Law, chapter 3, no. 219, 1901, p. 266)
(r) Bainbridge, speaking for an International Arbitration Commission that a tried number of cases, concluded, "A right unasserted for over forty-three years can hardly in justice be called a 'claim.'" (op.cit., Opinions) This statement has become part of the international code, see: International Code, second edition, sec. 52, p. 22) It specifies that in justice 43 years is sufficient to ruin or destroy all royal claims or sovereign rights of deposed monarchies or governments that have been abandoned because they were not maintained and kept alive by protest.
In other words, deposed monarchs or governments in exile, who fail to protest and/or use their titles and arms after "forty-three years" have no claim at all. After 100 years, the loss of the royal prerogative or right to rule is unchallengeable. The implications of this are far reaching and permanent for nobility and royalty, because it means that 99% of all deposed monarchs who never bothered to assert or claim rights have no leg to stand on. The time is past and the loss in carved in rock. It therefore cannot be retrieved or undone.
There have been hundreds of deposed monarchs in this situation. Very few have continued their claim to sovereignty. They have merely disappeared in the distant past, because they failed to keep their rights alive by protest. No protest, that is, acts of neglect, silence, implied consent or implied abandonment, or failure to use titles and arms for a dethroned monarch, for 40 to 100 years, means that the internal claim has ceased to be rightful, legitimate, ethical, moral or "de jure." Negligence is punished and is considered just and permanent. Unless there are legitimate mitigating circumstances taken care of before 100 years have past, the loss becomes irretrievable and irreconcilable. It cannot be changed. It is legally precluded. (See "Question #25" on some valid objections)
The principle is, "an abandonment of property or a right divests the title and ownership of the owner as fully and completely as would a conveyance." (1 Corpus Juris Secundum §12, n. 71) In other words, it is so complete, that it is as though all the rights were sold and the former owner, no longer owns it or has any claim to it, because that is now the fluu and complete possession of the new owner. In fact, after a hundred years, "To object that sovereign rights will thus be arbitrarily destroyed [ruined or lost] is an unwarranted assumption, since those rights cannot reasonably be shown to exist." (Harvard Law Review Association, Harvard Law School, Harvard Law Review, vol. 17, 1904, pp. 346-347) Why? --- because all rights have already been lost by dereliction and neglect.
The point is, ". . . An extremely long period of use is required [for immemorial prescription], perhaps as long as 100 years and at least 50 years." (Tanja Joona, "Legal Challenges in the Arctic," ILO Convention 169, end note 15, p. 184)
It must be remembered that "juridical acts," such as, neglect, implied abandonment or acquiescence are binding, and there are no tribunals or court to overrule their binding legal impact. Therefore, deposed monarchs or governments in exile who have failed to protect their interests suffer complete and irretrievable loss. After 100 years of acquiescence, "juris de et de jure" sets in making the lost final and conclusive.
De jure [internal] Sovereignty lasts as long as the claimant keeps up his protest against the usurpation of his Sovereignty. This is done by means of diplomatic protests. Such diplomatic protests are issued on the death of one claimant upon the occasion that the new claimant takes up the claim. (Dr. Kerr letter January 21, 2010)
Time also ruins evidence and proof, which is why a fifty to a hundred year period is considered to be final or permanent. Lapse of time produces a maze of uncertainties, therefore "prescription" "is deemed conclusive" after 50 to 100 years without protest or use of titles. (Ibid.) This is the conclusion of international practice and law. Emerich de Vattel makes this point eminently clear. He wrote:
. . . Immemorial prescription [long possession of a territory without a "de jure" claimant] secures the possessor's right [the current "defacto" sovereign’s right to rule without question and it is] beyond the power of [ loss or legitimate challenge] . . . for, it affords a legal presumption that he [the current ruling government] is the [true and rightful] proprietor, as long as the adverse party [the "de jure" claimant] fails to adduce substantial reasons [or adequate evidence of protest] in support of his claim: and, indeed, [how could such] . . . be derived, since the origin [all proof] of the possession is lost in the obscurity [or uncertainty of the distant past and no longer exists] . . . [that is, all] means of proving [it valid has been] . . . destroyed by time. . . . Immemorial possession [possessing a kingdom for a long, uncontested, undisputed period of time—hundreds or thousands of years], therefore, is [or creates] an irrefragable title [in other words, sovereign ownership that is impossible to refute or is indisputable], and immemorial prescription admits of no exception: both are founded on a presumption which the law of nature directs us to receive as an incontestable truth [truth that cannot be impeached]. (The Law of Nations, Book II, #143)
"All these sorts of prescription by which rights are acquired or lost are grounded upon this presumption [that is, upon neglect or implied abandonment through time]. . . ." (Vide Domat's Civil and Public Law, Book. Ill, Title. VII, sec. 4.) (United States and Venezuelan Claims Commission, 1889-90, Opinions, p. 79) Failure to assert a right means the loss of a right.
The loss is final. That is, it is set in cement, so only a few people on this earth hold the rights of "de jure" internal sovereignty --- few people are royals, which is an exclusive right, which few will ever hold.
To make the statement that "no deposed monarch has ever lost his rights" is simply untrue as the mechanism for loss is ever present and important to the peace of all nations, and it only takes a few years (from 40 to100) of silence or implied abandonment to create that loss. The point is, the lose of sovereignty and royalty is commonplace and has occurred over and over again in history by the "solid rock of prescription." (op.cit., Bering Sea Tribunal of Arbitration, p. 47) The mechanism of "prescription," considered to be just and equitable in law, is from time immemorial and either preserves claims or ruins them on a permanent basis, and a court decree to that effect is unnecessary. (See #14 of Part I)
(Please see the related question and answer in Part I entitled "(6) Dynasty never forfeits its rights. Those rights cannot be forfeited. The principle of “juris sanguinis” (right of blood) operates here. Is this true, or is it only partly true?" for more information)
(34) One person stated that there can be only one rightful sovereign in international law to have both "de jure" and "defacto" rights over a nation or kingdom. Is this right?
No, this is a false statement. There are many instances where there have been two emperors "de jure" and "defacto" in, for example, the ancient Byzantine Empire where this was quite commonplace. This took place in ancient Rome and in Imperial Russia as well. The Holy Roman Empire also had some fiefs ruled in tandum who were equally sovereign. In our modern age, we have the Principality of Andorra, which has two equal rulers, the President of France and the Catholic Bishop who resides in their capital.
Also, under the rules of "prescription," there can be more than one deposed monarchs, who can be valid and rightful claimants to the sovereignty of an ancient nation. For example, France has three valid claims each protected by the rules of "prescription." To ferret out the complex issues to determine who has a better or the best claim can be very difficult unless the situation is simple and straightforward. In conclusion, sovereignty is quite flexible and can be held in tandum contrary to the statement that there can only be one rightful ruler in international law or merely one claimant under the principles of "prescription." Note the following statement, which makes the truth quite obvious and clear:
In international law, a condominium (plural either condominia, as in Latin, or condominiums) is a political territory (state or border area) in or over which two or more sovereign powers formally agree to share equally dominium (in the sense of sovereignty) and exercise their rights jointly, without dividing it up into 'national' zones. (http://en.wikipedia.org
The point is:
International law recognizes the possibility of condominium, which exists when two or more states exercise sovereignty conjointly over a territory. ("The Legal Aspects of Japan's Territorial and Maritime Disputes with Neighboring States," Peace in Northeast Asia, Thomas J. Schoenbaum, ed., 184.108.40.206, 2008, p. 35)
(35) Do reigning constitutional or limited monarchs hold real sovereignty, or are they merely figureheads impersonating real royalty?
No, they are still legally "de jure," rightful and fully sovereign, even though they exercise only a portion of the full power of their countries. As observed by Hugo Grotius, a king or sovereign prince still retains full sovereignty even though there is a constitution limiting the exercise of his powers. He wrote, ". . . Sovereignty does not cease to be such even if he who is [sovereign] . . . exercise[s] it [and] makes promises. . . . I am speaking of . . . constitutions. . . ." (De Jure Belli as Pacis Libri Tres, Book I, Chapter 3, No. 16) (http://olldownload.libertyfund.org /EBooks/Grotius_1032.01.pdf) A different translation of the same from Grotius is equally clear, "That Sovereignty is not less Sovereignty, though the Sovereign at his Inauguration solemnly promises some Things to God, or to his Subjects, even such Things as respect the government of the State [like following a constitution]. (Hugo Grotius, The Rights of War and Peace, Jean Barbeyrac, Trans., Book I, chapter 3, no. 16) He then made a comparison between a king and the head of a household to make his point. He wrote:
If the head of the household promises that he will do for it something which affects the government of it, he will not on that account cease to have full authority over his household. . . . A husband, furthermore, is not deprived of the power conferred on him by marriage because he has promised something to his wife. (Ibid.)
Professor Kerr added:
The fact that a monarch has agreed to restrict the exercise of his Sovereign Power by swearing to a constitution in no way derogates from the unalienable Sovereignty residing in his person. Although a monarch may restrict the powers he personally exercises by granting a constitution, he, nevertheless, remains the source of power for all other branches and instrumentalities of his government. (The Augustan, vol. 18, no. 4, p. 130)
In other words, "The constitution derives its force from his assent to it. He is the grantor of whatever rights the constitution bestows. . . ." (Ibid) "As a monarch is the source of the Sovereign Power of the state and the grantor of any constitution, he is not deprived of the power conferred upon him by his kingship merely because he has promised to exercise it in a certain way. . . ." (Ibid.)
Some suggest if a king or reigning prince is limited, he is not sovereign, but
". . . a holder of sovereignty need not be supreme [and absolute] in all matters." (Daniel Philpott, Revolutions in Sovereignty, 2001, p. 19) Some things are wisely and intelligently delegated. And though the king is curtained by the constitution, for example, in the United Kingdom, ". . . it [the constitution] ascribes to him sovereignty, imperial dignity, and perfection. . . ." (Edward Wynne and William Meechan Bythewood, Eunomus; or, Dialogues concerning the Law and Constitution of England, 1822, p. 418)
Sovereignty is absolute, and ". . . absolutes don't exist in degrees. You can't be partially pregnant, sort of dead, kind of human, or almost sovereign. These are not absolute conditions." (reference unknown) Marek Stanislaw Korowicz, a scholar of international law, explains that there is no such thing as a "limitation of Sovereignty." Sovereignty cannot be limited, only a "limitation of the exercise of Sovereignty [can take place]. . . . Sovereignty may be limited in a quantitative sense [through checks and balances like having a mix of monarchy, aristocracy and democracy], but not [in] a qualitative one." (Some Present Aspects of Sovereignty in International Law, 1961, p. 108) That is, sovereignty centers in the king or sovereign prince. The reason is in all monarchies, even, "in constitutional monarchies . . . sovereignty rests formally with the crown [even though] . . . politically [it is exercised by] 'the people,' . . . except in times of crisis [if the government must go into exile]." (www.uslaw.com/us_law
_dictionary/m/Monarchy) Thus the monarch is still sovereign, and therefore, fully royal and regal in every sense of the word even when there is a constitution that limited him. So they are not only entitled to be called "sovereigns," but hold the full right of majesty, because they are internally "de jure" and rightful in their own lands.
For example, it is explained that, "While New Zealand is a de facto republic, we are still de jure (i.e. legally) a constitutional monarchy with sovereignty held by the crown." (http://holdenrepublic
-republicanism.html) In the United Kingdom, "The bedrock of the British constitution is … the supremacy [the sovereignty and ruling right] of the Crown in Parliament." (Lord Bingham in R (Jackson) v AG 2005 Lords: www.law201.co.uk/12.pdf)
The legislative, judicial and executive branches of their kingdoms generally hold external "de jure" and external "defacto" rule in the eyes of the world and in international law. These constituted authorities also hold internal "de facto" or political rulership, as well, within the state. However, the constitutional or limited monarch holds something extremely special and the only thing that is left over, and that is "de jure," internal sovereignty, which is the highest and greatest honor, and is above all the others in the sense that it is legal, right, moral and ethical, whether it is recognized or not. The full power of sovereignty in includes:
(1) the "ius imperii" --- the right to command and legislate
(2) the "ius gladii" --- the right to enforce ones commands
(3) the "ius majestatis" --- the right to be honored, respected and protected
(4) the "ius honorum" --- the right to honor and reward merit
However, because of delegated authority, which is divided up, the right to command and the right to enforce are dormant and inoperative, rather than being active powers in the monarch. The use, of these sovereign qualities, is not readily available, while the right, to be honored and honor others, is usually in full active force.
The king or reigning prince has all four of the above sovereign powers in full either in a dormant or an inactive state, or in an active state where he can exercise some part of his full sovereignty. The point is, ". . . Each sovereign is omnipotent [all powerful] in the jural [or legal] universe [even if they are limited by a constitution]." (Quincy Wright, "National Sovereignty and Collective Security," Annals of the American Academy of Political and Social Science, vol. 186, The Attainment and Maintenance of World Peace, July 1936, p. 94)
". . . the King is the fountain of all honor and possesses exclusively all the attributes of sovereignty." (E. C. Wilkinson, Trial, 1839, p. 128) That is, the king or sovereign prince is still rightful and royal in every way, even if he so limited and crippled as to be only a ceremonial figurehead, an icon or a full head of state.
(36) What legal authority does a "de jure" sovereign, or his rightful successor, legally have, who is deposed and no longer reigns over his territory?
Professor Stephen P. Kerr explained that:
. . . the Chief of a [dispossessed] Royal House in his capacity as de jure King (Head of the Government-in-Exile) has the authority to act in the place of Parliament and to perform those acts of state which under the various Constitutions requires the consent of Parliament." (The Augustan, XVIII:4, p. 129)
In other words, "Unrestricted by a constitution [such] a monarch exercises the full plentitude [or fullness] of Sovereign Power, executive, legislative, and judicial." (Ibid.) All restrictions of a former constitution ceased to be binding on a "de jure" non-territorial sovereign. Such a sovereign in exile is a free agent --- the personification and embodiment of all the supreme, absolute and unlimited entitlements and powers of his ancient “de jure” territory. He is extremely powerful. And his heirs inherit this full and complete right. The right to rule and enact laws and create and grant titles of nobility and royalty, a new authentic knighthood or other honors should he so desire. Dr. Kerr wrote:
Under public international law, a Government-in-Exile, monarchical or republican, is deemed to have the implied constitutional power to perform all normal acts of state . . . including those acts which by its own constitution would [normally] require the consent of an organ of government, such as parliament, which are at present suspended due to the conditions arising from a usurpation of sovereignty. (See: "Dynastic Law")
Sir Arnold McNair, 1st Baron McNair, an accomplished British legal scholar, professor, judge, and the First President of the European Court on Human Rights, concurred and stated:
The mere fact that a foreign Government has been deprived of the control of a part or the whole of its territory by an enemy [whether by war or illegal referendum] in no way invalidates legislation passed or other acts of sovereignty done by it outside its normal territory. . . . There is no principle of International law which says that a ["de jure"] Government cannot act [independently and] validly upon foreign territory. . . . (www.tibetjustice.org/reports
H. Lanterpacht, the editor of International Law Reports for 1941-1942, in the case of Moraitis v. Delany, cites a case that dealt with competency of an exiled monarch to deal with ordinary matters. It concluded that ". . . Governments in exile [such as rightful "de jure" monarchs] are thoroughly competent to deal with [such]. They are true governments set up and organized to protect the interests of their nationals. . . . They exercise [full] sovereign power. . . ." (Case No. 96 as quoted in The Augustan XVIII:4, p. 128) In addition, the Belgium Supreme Court, the Cour de Cassation in 1919 upheld the supreme power of HM King Albert to legislate by "Royal Decree" during World War I. They stated ". . . that since the Chamber of Deputies and the Senate were paralyzed due to the conditions of occupation and exile, that the legislative power was vested in the King alone." (Ibid.) Dr. Kerr summarized by stating that, "These highly important decisions were based on general principles of international and public jurisprudence. Hence, the reasoning . . . is applicable to any exile situation. . . [monarchical or republican]." (Ibid.)
As the personification of all the lawful authority of his or her former kingdom, empire or principality, a "de jure" monarch has a lot of recognized freedom. He or she is a full and complete government-in-exile in and of him or herself. As such, a "de jure" monarch and/or his heirs, outside of his former territory in a friendly host nation, can, according to international law:
. . . undertake many types of actions in the conduct of their daily affairs. These actions include:
becoming a party to a bilateral or international
treaty amending or revising its own constitution
maintaining military forces
retaining (or "newly obtaining") diplomatic recognition by sovereign states
issuing identity cards
allowing the formation of new political parties
instituting democratic reforms
Whether one has the financial foundation, support and opportunity to implement all of the above in a host country is very rare, but the legal right exists and is fully embodied in the "de jure" monarch. However, "the duty to respect the territorial sovereignty [of the hosting government] must prevent a state [or monarch in exile] from performing acts which, although within its competence, in accordance with its personal supremacy, would violate the territorial supremacy [of the host]." (F. E. Oppenheimer, "Governments and Authorities in Exile," The American Journal of International Law, vol. 36, no. 4, October 1942, p. 594)
The Stuart Kings are a good example of the great power of a sovereign or his successor in exile. Starting with King Charles II, a "de jure" king in exile, and later with King James II, who was also exiled, both continued to award English royal orders, and created nobles by the authority and in the name of their ancient royal rights and sovereign "de jure" prerogatives. As true kings in exile, they were no longer subject to Parliament, the Magna Charta or any other restraint except the limits of sound and logical reasoning. Succession rules for such a "de jure" or former ruling family at this point would be determined by the royal family itself. It is no longer decided by the country that disowned them, or a constitution that no longer has power and validity in their lives for they can change the rules. True sovereignty, after all, means to be autonomous, independent and free. Jean J. Burlamaqui stated, that in "kingdoms [that are] truly patrimonial, every [true and rightful] king has a right to regulate the succession, and to dispose of the crown as he has a mind. . . ." (www.constitution.org/burla/burla_2203.htm)
A good example of this power recently took place on December 30, 2007. His Majesty King Michael I of Romania exercised his "de jure" sovereign authority by placing his eldest daughter in the position of being his successor to the former throne. He also gave out some royal titles and re-establish one of his kingdom's former royal orders of chivalry. (www.familiaregala.ro/?id2
These absolute and supreme sovereign rights come because "de jure" monarchs are again the full and complete embodiment and personification of all the lawful authority, supremacy and power of their governments. In fact, a "de jure" monarch is the government and the government is the monarch. They are one and the same. There is no difference between them. And these rights can last perpetually. The Stuart line of rightful kings, however, demonstrated the opposite, that is, the end of what would otherwise be permanent. The "de jure" monarch, Henry Benedict Xavier (styled as HM Henry IX), who being deep in the pangs of poverty:
. . . resolved the "succession issue" in Britain by exchanging his title and rights for a pension from King George III, thus, abdicating in King George III's favor for the price of a yearly pay-check, which legally transferred the title to the British throne to the Hanoverians giving them legitimacy and sanctioning their occupancy of the throne. King George granted Prince Henry Benedict Xavier [formerly King Henry IX] the title "Count of Albany", which thereafter was his official style, and thus reconciled invited him to return to Britain from exile. (www.angelfire.com/ego/et_deo/jacobites.wps.htm)
Because "of the complete failure of the Savoy and, later, the Wittelsbach heirs of the Stuarts (through Henrietta daughter of Charles I) to prosecute or in any way assert the Stuart's claim," the transfer of all sovereignty rights to the British throne through Henry IX became permanently and unalterably valid by the principle of "prescription" especially after 100 years of silence. (Stephen Kerr, The Augustan, XVIII:4, p. 127) See also: www.angelfire.com/ego
/et_deo/jacobites.wps.htm) Only the living, immediate, legitimate children or collateral relatives that held dormant sovereignty rights could have overturned such a renunciation of power. However, certain kinds of renunciations cannot be overturned after the fact. Since the royal descendants of the Stuart kings did not oppose this official act, implied consent creates a legal presumption against them, and after 100 years, it becomes immemorial and impossible to correct, since evidence to the contrary cannot be introduced. (See "Question #33") The right to reclaim their rights was thus lost forever. They wittingly or unwittingly abandoned their rights. This neglect or dereliction by their failure to use their English royal titles and heraldry, etc. has created a "juridical act" of abandonment and "prescription." The point is, ". . . the King is the fountain of all honor and possesses exclusively all the attributes of sovereignty." (E. C. Wilkinson, Trial, 1839, p. 128)
(37) What about Ecclesiastical sovereignty?
The sovereignty relevant to nobility and royalty, by definition, is exclusive to government or political power or "de jure" rights over a land or territory. Religious leaders do not rule over countries or nations. Their domain is religious and has nothing whatsoever to do with secular or political dominion. This is self-evident and obvious especially when it is considered that, "Sovereignty is the exclusive right to exercise, within a specific territory, the functions of a Nation-state and be answerable to no higher authority." (www.docstoc.com/docs/6414333/
National_sovereignty) In fact, "Everything and everybody, including the clergy, was subordinate to it." (Robert Jackson, Sovereignty: Evolution of an Idea, 2007, p. 65)
Christian theology recognizes a division between government sovereignty and religious rights. "Over every nation he [God] set a ruler" --- a sovereign --- a secular ruler. (Ecclesiastics 17:14) That is, "By me [by the power and authority of God] kings reign, and princes decree justice. By me [that is, by God] princes rule, and nobles, even all the judges of the earth." (Proverbs 8:15-16) These kings, princes and nobles had sovereignty and it was given them by God. The people, including the religious leaders, were subordinate to them in government rule. This division is important to remember in regard to religious claims to the right of sovereignty, because sovereignty, by definition and meaning, is the domain of the political or secular authorities, not the domain of ecclesiastical authorities, whose domain does not involve sovereignty. For example in the days of the Kings of Israel, there was a king, who ruled, fought and lead the military; and a separate man, the high priest and/or prophets, who was the religious leaders, who were uninvolved with war and had nothing to do with the warriors or what some would call "knights" --- David's special legendary elite, the "Thirty" or "the mighty ones." (1 Chronicles 11) That is, there was a division between sovereignty and religious leadership. Centuries later this division was still in force and it continues to this day. No wonder, the disciples of the Christ were taught to "Render . . . unto Caesar, the things which are Caesar's [that is, honor his right to rule] and [render] to God the things that are God's [the importance of living a good and devote life]." (Matthew 22:21)
Church leaders were told that both they and the people should submit themselves "to the king, as supreme . . . ," that is, the one who is foremost and highest in rank politically. Therefore, Peter admonished his followers to "Honour [that is, obey, give deference to] the [secular] king" --- he who held the right to rule and govern, which is sovereignty. (1 Peter 2:13,17) "For there is no power but of God: the powers that be [the kings and princes of the earth] are ordained of God." (Romans 13:1) Therefore, the apostle Paul also wrote, "Put them in mind to be subject to principalities [the sovereign rulers of these territories] and powers, to obey magistrates, to be ready to every good work." (Titus 3:1) (See: "Monarchy and Nobility: Divine Rights & Responsibilities") Hugo Grotius reasoned:
Christ himself, the spring, from whence all the power of the church was derived, and whose life is the model for the church to follow, said, his kingdom was not of this world, that is, was not of the same nature, with other kingdoms, otherwise, like the rest of sovereigns, he would have maintained his authority by the power of the sword. (On the Law of War and Peace, Book II, chapter XXII, no. 14)
Christ's rule was so paradoxically different from the kingly image of grandeur, power, dominion and glory. He explained the difference:
. . . Ye know that the princes of the Gentiles exercise dominion over them, and they that are great exercise authority upon them. But it shall not be so among you: but whosoever will be great among you, let him be your minister; And whosoever will be chief among you, let him be your servant: Even as the Son of man came not to be ministered unto, but to minister. . . . (Matthew 20:25-28)
As stated, the Lord of Lords and King of Kings of all the earth declared, "My kingdom is not of this world: if my kingdom were of this world, then would my servants fight. . . ." (John 18:36) Men of the Church were not to be warriors, knights or secular rulers, but rather men of peace.
The obvious conclusion, which is only common sense, is that there is a separate between church and state. "Sovereignty . . . [is] a purely secular [political, civil or governmental] form of authority. . . ," not a religious one. (Robert Jackson, Sovereignty: Evolution of an Idea, 2007, p. 62) And only ". . . in the sovereignty [of princes, kings and emperors] is the [secular] fountain of honor." (Scott Thompson, "Her Majesty's Prerogative Powers:" http://members.tripod.com/~american
_almanac/privy.htm) Monarchs are the "font from whom all power and authority flows" in terms of knighthood.
On the legal side of things, Noel Cox, LLB, LLM, Ph.D. professor of Constitutional Law,Auckland University of Technology and an expert jurist in this field, declared, "Supranational [international] organizations, unless [they] themselves [are] recognised as sovereign, cannot create Orders of Chivalry." He also said, ". . . knighthood, as traditionally understood, can only be conferred by a Sovereign." Hence, "Orders of Chivalry . . . [must be] under the protection of Chiefs or of Houses of recognised sovereign rank." The conclusion is that, "Only de jure [legal] sovereigns . . . may create Orders of Chivalry." Descendants who do not hold “de jure” sovereignty, have permanently lost the right to rule, and religious leaders, because they do not have the secular authority of a sovereign, cannot create a genuine "Orders of Chivalry." (See: "The sovereign authority for the creation of Orders of Chivalry" www.geocities.com/noelcox/Creation.htm)
Professor Stephen Kerr concurred. He wrote:
To be legitimate, an order of chivalry must have a fons honorum: A sovereign house, a State, or other international person [who has the supreme right to rule politically or governmentally --- not a religious leader, whose has no such right]. Without such a sovereign fons honorum, the legitimacy of an order of chivalry lapses [that is, ends or terminates]. (See: "Dynastic Law")
Likewise, Guy Stair Sainty, a well-known expert in orders of chivalry, explained:
The Patriarchs [religious leaders] are not Sovereigns, or even claimants to Sovereignty, and therefore lack the authority to found or give their protection to Orders of Chivalry. . . . (http://stichtingargus.nl/vrijmetselarij
(38) But what about the Pope?
The Pope is a recognized elective sovereign prince of a real independent country. It is probably the smallest nation on earth --- the Vatican. Prior to this, the Popes had sovereign territories and armies in Medieval times, and later after their loss were "de jure" sovereigns. Finally after the Lateran Treaty in 1929, they again had a real territory to rule over. All the orders of chivalry under the Pope are genuine and authentic because of this sovereignty. No other religious leaders on earth holds this secular right, which is the highest governmental honor one can receive on earth. The Pope is the only one who is a both a religious leader and a recognized monarch or sovereign prince over a little nation.
Pope Pius IX lost all territorial rule of the principality of Benevento, the dukedom of Pontecorvo and other important territories in Italy in 1870 and did not receive actual corporeal sovereignty again until 1929 via the Lateran Treaties, which made him the independent sovereign prince of Vatican City. However, during this time when the Popes were deposed having lost their princely and ducal territories, "by the terms of the Italian royal decree of May 13, 1871, the Pope [was] guaranteed his sovereign rights and other immunities by Italy." (Henry Wager Halleck, Halleck’s International Law, 3rd ed., Sir Sherston Baker, ed., 1893, vol. 1, p. 119) In other words, this country acknowledged "as sovereign the ruler it dispossessed and granting him the same royal rights as the actual sovereign." (Salvatore Cortesi, My Thirty Years of Friendships, 1927, p. 213) This is just one example of how dethroned monarchs, and their successors, continue to be royal.
The Pope, since 1929, continues to be the sovereign prince of the tiniest nation on earth. "Certainly not all nation-states are equal in their capabilties, but the formal equality of sovereignty means that they are legally equal in terms of their rights. . . ." (James Roberts, The Internet Encyclopedia of International Relations: www.towson.edu
/polsci/irencyc/sovreign.htm) ". . . International Law recognises all monarchs as equally sovereign. . . ." (Lassa Oppenheim, International Law: a Treatise, vol. 1, 2nd ed., 1921, p. 429) The Pope has all the rights of the biggest nations on earth.
(39) Tracy Twyman wrote, "In our Judeo-Christian culture, the idea of divinely-ordained monarchy is backed up by scripture." ("In Defense of Kingship and Divine Right:" http://quintes sentialpublications.com/twyman/?page_id=29) Isn't divine right of kings, therefore, a real and authentic claim?
The world generally discredits all things divine. It is not politically correct or socially acceptable to talk about them or, in some circles to even believe in things divine. In fact, "The doctrine [of the Divine Right of Kings] is [considered to be] absurd, when judged from the standpoint of modern political thought. . . . [This] statement . . . requires neither proof nor exposition." (John Neville Figgis, The Theory of the Divine Right of Kings, 1896, p. 1) It is self-evident.
For hundreds of years and in many countries divine rights did not exist. For example, imperial royalty in Rome was presented as ". . . the personification of the state, the heir of the sovereignty and majesty of the Roman people." (F. Guizot, The History of Civilization, from the Fall of the Roman Empire to the French Revolution, vol. 1, William Hazlitt, trans., 1846, p. 170) Napoleon also promoted this type of sovereignty into the 19th Century. He unceasingly repeated, "Who like me has been elected by eighteen millions of men? Who like me is the representative of the people Repvblique Francaise?" (Ibid.) This is the modern concept of sovereign royalty. Others much earlier espoused the divine right of kings, which theory eventually fell apart and was discarded. For example, the Treaty of Westphalia in 1648 set forth and established secular monarchical rule by the kings and sovereign princes involved. The Medieval Ages experienced different kinds of accepted and recognized royalty: (1) secular royalty, (2) religious royalty including divine right of kings, (3) feudal royalty, and (4) barbarian sovereignty. (Ibid.) The point is, divine right was never universal, except in very ancient times where primitive superstition reigned triumphant throughout the earth. Different cultures where organized in different ways, such that divine right did not existed in every country, nor in was it universal everywhere.
As pertaining to divine right sovereignty, ". . . this theory is dead and buried we may concede. It should, however, be . . . remembered with respect. . . [because] it served its purpose in its time. . . ." (Henry A. Yeomans, "Divine Right of Kings," Cyclopedia of American Government, vol. 1, Andrew Cunningham McLaughlin and Albert Bushnell Hart, eds., 1914, p. 605) Stephen Coston, an author on King James IV of England and divine rights, wrote, "With respect to the doctrine of the Divine Right of Kings, this doctrine was the principal force restraining the authority of the Popes. . . ." (http://www.jesus-is-lord.com/kjdivin2.htm) It is a well-known fact that all Catholic Christian nations were in danger, in the dark and middle ages, of suffering from Roman politics and greed. This was a dark time in the history of mankind where corruption reigned. It was believed:
1. That the pope has power to depose kings [ruin and dethrone them] for heresy especially. 2. That being deposed, any one [any commoner] may kill them, at least by the pope's order." (Thomas Jones Howell, compiler, A Complete Collection of State Trials and Proceedings for High Treason and Other Crimes and Misdemeanors, vol. 7, 1816, p. 547)
The Popes took this usurpation and meddling very seriously. Some prominent papal meddling are as follows:
Pope Gregory VII deposed Holy Roman Emperor Henry IV, February 22, 1076
Pope Innocent III deposed King John of England, 1212
Pope Innocent IV deposed Holy Roman Emperor Frederick II, July 17, 1245
Needless to say history shows that this was disruptive and created not only insecurity, civil unrest and anarchy, but civil and national wars. The shenanigans of Rome and his representatives were disruptive and resented. ". . . Monarchs were deposed, their crowns transferred to others, their subjects loosed from their allegiance, and their kingdoms not unfrequently ravaged with fire and sword." (www.fbinstitute.com/papacy/b1c5.html) Some great wrongs were committed. The Reformation was forming in response to this and other factors. The theory of Divine Right of Kings, however, finally fulfilled its purpose and brought greater freedom from the oppression of those times. "The political [secular] claims of the Papacy . . . disappeared." (op.cit., Figgis, p. 259)
The Lord of all made it clear that church authorities were never supposed to rule the earth as secular leaders and politicians, for he said ". . . my kingdom is not of this world: if my kingdom were of this world, then would my servants fight. . . ." (John 18:36) A higher call was given to those who followed the Supreme Being and that was to be spiritual leaders and men of peace, not to rule governments:
. . . Jesus called them to him, and saith unto them, Ye know that they which are accounted to rule over the Gentiles exercise lordship over them; and their great ones exercise authority upon them.
But so shall it not be among you: but whosoever will be great among you, shall be your minister:
And whosoever of you will be the chiefest, shall be servant of all.
For even the Son of man came not to be ministered unto, but to minister, and to give his life a ransom for many. (Mark 10:41-45)
To be great and to be chief or highest of all would be would be to serve, not to rule. Divine right of kings was created to protect royal patrimony from the meddlings and oppresions of the Church of that time, and it strengthened sovereignty and independence, because it was recognized that:
Sovereigns [kings, princes and emperors] are entitled to this Right [of independence] by virtue of their Sovereignty, or Royalty. . . . [This is because] princes hold their empire [kingdom, or principality] from God alone. . . . Princes have been entrusted with government [dominion and sovereignty] by God. . . . (House of Commons: Reports from Committees: Catholics, vol. 20, quoting L. Bernard Van Espen, Tractatus de Promulgatione Legum Ecclesiasticarum, ac speciatim Bullarum & Rescriptorum Curiae Romana, 1700’s, 1851, p. 75)
They were supreme and independent within the boundaries of their own domains or territories. The Catholic Church finally came to point that it could make the following declarations in 1792, as a result of the abuses, pressures and struggles that took place for sovereign independence during these centuries:
We abjure, disavow, and condemn the opinion, that Princes excommunicated by the Pope and council, or by any ecclesiastical authority whatsoever, may, therefore, be deposed or murdered by their subjects, or by any other persons. We hold such doctrine in detestation, as wicked and impious; and we declare that we do not believe that either the Pope, with or without the general council, or any prelate or priest, or any ecclesiastical power whatsoever, can absolve the subjects of this kingdom, or any of them, from their allegiance to his: Majesty King George III, who is, by authority of Parliament, the lawful King of this realm.
We abjure, condemn, and detest as unchristian and impious, the principle that it is lawful to murder, or destroy, or anywise injure any person whatsoever, for or under the pretense of being heretics; and we declare solemnly before God, that we believe no act in itself unjust, immoral, or wicked, can ever be justified or excused by or under the pretense or color that it was done either for the good of the Church, or in obedience to any ecclesiastical power whatsoever. (John C. Rives, Appendix to the Congressional Globe, vol. 31, January 10, 1855, p. 114)
Great changes had taken place all over Europe, greater freedom and stability. Then:
The Divine Right of Kings ceased to have practical importance, not because its doctrines were untrue, but because its teaching had become unnecessary. The transition stage had passed. The independence of the State had been attained. (Ibid., p. 261)
In addition, ". . . The Divine Right of Kings was not merely useful but necessary to the political side of the Reformation. . . ." (Ibid., p. 260) It opened up the door to religious freedom and tolerance breaking the iron band of Papal authority and tyranny and all coercive interference from this source. Ultimately, after the Thirty Years War and the Peace of Westphalia in 1648, sovereign independence and freedom prevailed and became the law of nations. The point is, "The theory of Divine Right did not lose its popularity because it was absurd, but because its work was done." (Ibid., p. 261) "Judged in relation to the circumstances which produced it, and to the rival doctrines it was formed to extirpate [stop] the theory of the Divine Right of Kings [was] necessary and even sensible." (Ibid., pp. 2-3)
Like sovereignty, "The divine right to rule has a long and diverse history that has touched almost every civilization known. . . . In fact, it is so ancient that scholars find it hard to pinpoint the exact place or culture that first used the concept to rule." ("Divine Right to Rule: Origin of Government:" www.exampleessays.com /viewpaper/75011.html) As to scriptural authority:
The theory [of divine right] is commonly supported by a number of Biblical illustrations and texts, of which some of the most important may be mentioned: Samuel's description of a king, on the Jewish nation demanding one; David's refusal to touch "the Lord's anointed;" the text "By me kings reign and princes decree justice;" the passage describing the vision of Nebuchadnezzar, asserting that "the Most High ruleth in the kingdom of men, and giveth it to whomsoever he will. . . ;” the command to "render unto Caesar the things that are Caesar's;" Christ's words to Pilate "thou couldest have no power at all against me except it were given thee from above;" the behaviour of the primitive Christians; and above all the direct enjoining by both St. Peter and St. Paul of obedience to constituted authority, "The powers that be are ordained of God. Whosoever therefore resisteth the power, resisteth the ordinance of God. And they that resist shall receive to themselves damnation." "Ye must needs be subject, not only for wrath, but for conscience' sake." "Submit yourselves to every ordinance of man for the Lord's sake: . . . [for example] to the king as supreme." (Ibid., pp. 7-8) (See also the subtitles: "Monarchy was Endorsed and Instituted of Heaven," "A Limited Monarchy was Instituted in Ancient Israel," "The Old Testament Describes an Unending Dynasty," "God Ordained That There Should be Kings," and "Islam also has Scriptures and Sacred Writings that Support Monarch" all of which are in the article "Monarchy and Nobility: Divine Rights and Responsibilities.")
The subchapter, "The Old Testament Describes an Unending Dynasty" just cited above describes the divine calling of David and his descendants to be kings forever in the earth over Israel wherever they have been scattered and wandered and lost their identity as sons of Abraham. David was given an eternal and never ending dynasty in the earth. Hence the:
. . . claim [to be his rightful descendants] was made by a number of powerful European dynasties, including the Merovingians, the Carolingians, the Stuarts, the Plantagenets, the Habsburgs, and even Emperor Constantine, who have all traced their ancestry back to the House of David. It was this [divine] claim upon which they based the legitimacy of their rule. . . . (op.cit., Twyman)
Other thrones also had this royal claim, including the Kingdom of Georgia and the Empire of Ethiopia, and can show the line of descent from King David to the present heirs to their ancient royal thrones. However, it appears eminently clear in sacred history that God has upheld as divine other forms of government than monarchy alone. God instituted both kings and a system of judges without a king in ancient Israel. Neither is more divine than the other, both had the divine right to be sovereign if they followed what was just, right and true. There is the divine right of kings and the divine right of valid republics.
One place where Divine Right of Kings took the wrong road was in promoting absolute rule, instead of a constitutional or limited monarchy. Why? Because the divinely appointed throne of all Israel under King David and his heirs was not supposed to be absolute, but limited. This was the God-appointed model for what is best. King David was not supposed to be like the kings of any other nation. (See the subchapter "A Limited Monarchy was Instituted in Ancient Israel" in the article "Monarchy and Nobility: Divine Rights and Responsibilities")
We promote constitutional or limited monarchy, because the greatest minds of all the ages supported this type of government whole-heartedly as the best, and modern-day political research confirms that constitutional monarchy generally has the best track record on earth for freedom, stability, economic well-being, the lowest crime rates and the highest standard of living above all others. (See "Ideals," "Advantages," and "Briefly, the Benefits of Constitutional Monarchy")
Like all political ideas, Divine Right of Kings had both its faults and its important contributions to society. In our day and age, it has often been ridiculed and poked fun at as absurd. However, "It is easy to belittle this theory [or even any theory when observed or taken to its extremes], but it is far more important to understand it." (Robert H. Murray, "Democracies," The Edinburgh Review, Sydney Smith, ed., vol. 234, 1921, p. 79) In moderation, it was little different from normal sovereignty, one of the greatest and most important secular concepts ever produced on earth for the good of all mankind. (op.cit., Figgis, p. 235) Parts of Divine Right ideals continues to be upheld as part of the supreme cournerstone of sovereignty in international law to this day. For example, as pertaining to deposed "de jure" monarchs, both divine right and the ancient and modern rules of "prescription" in international law equally declared unequivocally the same thing. That is:
Hereditary right is indefeasible [which means the right of an heir to inherit the sovereignty of his father cannot be annulled or voided or undone. In other words,] the right acquired by birth cannot be forfeited through any acts of usurpation, of however long continuance. . . . So long as the heir lives, he is king by hereditary right, even though the usurping dynasty [or usurping republic] has reigned for a thousand years. (op.cit., Figgis, p. 5)
If a dethroned royal house obeys the ancient rules of "prescription" that maintain their rights, then their royal privileges last forever or have no end. The legitimate successors are "de jure" kings without a kingdom and have a lawful right to the throne of their ancestors. If they abandon their rights through neglect, acquiescence or a failure to use their titles and arms, they lose them permanently.
(40) Kings and sovereign princes have been robbed of the right to rule. If they maintained and kept their rights alive while deposed shouldn't they or their successors be restored to power?
The right to be restored to what one owns, which one has been unlawfully disposed of is a legal and moral issue of great importance. What is crucial here is the principle of justice, which is one of the greatest and most beautiful things on earth.
Hugo Grotius, considered by many to be the father of international law, which is supposed to be a compilation of rights, or a compilation of what is right, stated in 1625 "that the person ejected from his inheritance should be reinstated. . . ," and "anything [even a crown] belonging to another should [be] restore[d] . . . to the lawful proprietor." It may never happen, but it is, nevertheless right, and that, ". . . by the principles of natural justice." (http://oll.libertyfund.org/Texts/Grotius0110/LawOfWarPeace
/HTMLs/0138_Pt04_Book2B.html) Patrick Macklem, a noted Canadian legal scholar, commenting on sovereignty rights, taught that it is not right to say that the aborigines of Australia have lost their inherent and inalienable right to govern themselves, because of so-called European superiority and their takeover. Equally, it can be added, it is not right to say that kings and princes of nations have lost any of their hereditary rights to govern because of the so-called superiority of democracy. Superiority has nothing to do with what is right or fair in either case. Theft of governance is as much an act of theft as any other kind of robbery of one's goods. It is a crime. To support it is to be in contempt of the law and in violation of justice. The inherent right to govern was and is a legitimate possession owned by the rightful proprietors of those rights. Both the aborigines and the kings and princes of the nations should be given back what is rightfully theirs. Both were betrayed and unlawfully deprived of their rights in the past. Their possessions were ripped out of their hands illegally by the force of arms or under duress, undue influence or coercion. Hence, international law labels this kind of theft like any other crime as unjust and wrong, and that restoration is not only morally and ethically right, but legally right as well.
In the 1997 General Recommendation XXIII, the UN Committee on the Elimination of Racial Discrimination, it states concerning "indigenous peoples" that "where they have been deprived of their lands and territories traditionally owned . . . without their free and informed consent, [we should] take steps to return these lands and territories." (http://www.hreoc.gov.au/pdf/social_justice
/submissions_un_hr_committee/1_native_title.pdf) This will probably never happen, but it is recognized as a "right," or what is truly right. And in all fairness, what is ethically and morally right for one group, who was unlawfully divested or robbed of their rightful possessions, is just as right and proper for another. That is, using the same words and same philosophy, "where they [the former kings and princes] have been deprived of their lands and territories traditionally owned . . . without their free and informed consent, [we should] take steps to return these lands and territories [to their rightful heirs]" (Ibid.)
The international law of restitution began to be acknowledged as a "right" in 1927 when the International Court of Justice declared, ". . . That reparation must, as far as possible, wipe out all the consequences of the illegal act and reestablish the situation which would, in all probability, have existed if that act had not been committed." (http://hrw.org/pub/amicusbriefs
/medellin_012405.pdf) This was, of course, merely recognizing what is just and fair. This important recognition of what is ethical was further strengthened on July 19, 1943 by the International Law Conference which was held in London. They adopted as mandatory the most important principles of the Law of Restitution. These principles apply to all who have been robbed of their rights. They declared:
Rightful ownership remains in the person [king or sovereign for our topic] who has been dispossessed of anything [their kingdoms] by outright confiscation or by any device resulting from political pressure by the occupant [or usurper]. . . ." (http://palestine-encyclopedia.com/EPP/Chapter38_1of4.htm)
The point is, "[Legally and lawfully, legitimacy] requires that the crown [of a deposed monarchy] be returned to him to whom it belongs." (Charles Maurice de Talleyrand-Périgord, Memoirs of the Prince de Talleyrand, vol. 2, 1891, p. 120) In other words, "As things [stolen] are to be restored to their original owners, so subjects are to be restored to their former lawful sovereigns." (Hugo Grotius, On the Law of War and Peace, Book III, chapter XVI, no. IV) This is what is considered "just" and morally right in international law. Rhodri Williams, a consultant with the Brookings-Bern Project on Internal Displacement, reiterated again what is considered fair and therefore right for countries. He makes the important point that:
. . . True title [ownership] does not pass with property acquired unlawfully; that transfers of property made under duress are invalid; and that those wrongfully dispossessed are entitled to the return of their property as well as compensation for lost income streams such as rental agreements or crops. (www.lawrecord.com/rutgers_law_record/2009/04/refugees
And what represents true justice can equally be applied to the disposed kings and princes of the earth, who were also wrongfully robbed of their priceless heritage and possessions including the right to rule and govern. The law of restitution approved by the United Nations for indigenous people follows, but can equally be applied to former monarchs and their rightful successors:
Indigenous peoples [kings and sovereign princes] have the right to the restitution of the lands, territories and resources which they have traditionally owned or otherwise occupied or used, and which have been confiscated, occupied, used or damaged without their free and informed consent. Where this is not possible, they have the right to just and fair compensation. Unless otherwise freely agreed upon by the peoples [kings and princes] concerned, compensation shall take the form of lands, territories and resources equal in quality, size and legal status. (United Nations Declaration on the Rights of Indigenous Peoples, U.N. Doc. E/CN.4/1995/2; E/CN.4/Sub.2/1994/56, 28 October 1994, at 105-115, reprinted in (1995) 34 I.L.M. 541, Art. 27) (www.usask.ca/nativelaw/ddir.html)
For example, Professor Francis Anthony Boyle, a well-known litigator for the International Court of Justice (ICJ) wrote the following very significant statement on the possible restoration of the monarchy of the Hawaiian Islands. He said: "The kingdom [of Hawaii] was never lawfully terminated, therefore the kingdom still exists [on a ‘de jure’ basis] . . . ." (www.hartford-hwp.com/archives/24/151.html) These rights never extinguish as long as the people survive and keep it alive and/or the royal family continues to exist and follows the procedures that perpetuates their royal claims, the rights continue on forever or permanently. Since most, if not all, of the ancient sovereignties of the Holy Roman Empire were never lawfully terminated, and they still continue to use their titles (the required procedure in international law to keep their rights), they still exist legally on a "de jure" or "in principle" basis.
What is meant by "de jure" in a broad legal sense is "by right," "fitting," "fair," "legitimate," "authentic," "real," "genuine," "lawful" and "true." A right is something to which one has a just claim. It is the legal or moral entitlement that belongs to a person by law, nature, or tradition. They are moral, proper and just whether they are respected or not. For example, all men have a right to be free. It is an inalienable right. Yet that right may not be honored. Slavery does exist even though freedom belongs to all mankind.
Felix Cohen (1907-1953), another well-know expert and author on international law declared the following on American Indian sovereignty. He stated, "Perhaps the most basic principle of all Indian law . . . is that those powers which are lawfully vested in an Indian tribe are not, in general, delegated powers granted by expressed acts of Congress, but rather inherent powers of . . . sovereignty, which has never been extinguished." (www.umass.edu/legal/derrico/sovereignty.html) This is because they hold these rights forever. You can't change the past. They have rights that were violated and international law supports those rights to self-determination or sovereignty. But remember past rights, though lawful, may never be realized. However that in itself does not nullify or terminate them. They exist and will exist forever if they are hereditary by being passed on to their rightful heirs or successors.
In the case of Native American sovereignty, it is really a sham, because it is not absolute. Limited sovereignty is not sovereignty at all. That is, it may be politically polite or politically correct to say that they possess sovereignty, but it is impossible because absolutes don't exist in degrees. You can't be partially pregnant, sort of dead, kind of human, or almost sovereign. These are not absolute conditions. A sovereign nation can not be a satellite, protectorate, or dependent colony, and still be sovereign. And it can't be a ward of another government, as is the case with all Indian tribes. A sovereign nation must have supreme dominion. Therefore to say they are sovereign deludes both sides of the camp into doing nothing. It is an endless and permanent stalemate. That is, it would be really hard to believe that the United States Government would ever grant the Native Americans their full right to self-determination. Or, that the American Indians could ever take their legal right to sovereignty back from the most powerful nation on the earth. It will never happen. A Federal Court declared that "the blunt fact . . . is that an Indian tribe is sovereign to the extent that the United States permits it to be sovereign -- neither more nor less." [364 F. Supp. at 194.] (www.manataka.org/page94.html) It is very obvious who has the power in this context. It would be more appropriate and honest to say that the Native American tribes have the full, complete and absolute legal right, but not the "defacto" privileges of sovereignty.
Under normal circumstances, "right" holders, who have "de jure" or the legal right to something important, can rest assured that if their claims were ever challenged in an objective, unbiased, judicial setting, that those rights would most likely be supported and recognized. However, in spite of an international body of doctrine with criteria for granting, withdrawing or withholding recognition, all governments are free under the law to interpret, adopt or reject these legal suggestions. The result, there is no settled criteria for diplomatic recognition. Hence, the practice of recognition reflects ambiguity and confusion that is both unique and unorganized. Hence, it is next to impossible for "de jure" sovereign rights to be recognized. (Yozzi Shain, The Frontier of Loyalty: Political Exiles in the Age of the Nation-State, 2005, p. 113)
In fact, to avoid controversies such as distinctions between "genuine," "quasi," and "fictitious" claims and the resultant legal and ethical implications between "legitimate," "genuine" and "false" governments-in-exile, the nations of the earth, being practical, only recognize "States," that is, countries or territories, and avoid ever recognizing or having to deal with the idea of fraudulent "governments." (Stefan Talmon, Recognition of Governments in International Law with Particular Reference to Governments-in-Exile, 1998, pp. 16, 3) Hence, it is not only virtually impossible for "de jure" monarchs and their successors, but for any government-in-exile to be recognized.
In other words, way too many barriers and obstacles exist to thwart recognition of dispossessed royalty or other equally rightful claims for two significant reasons: (1) in these modern times, there are few nations on earth that do not have a well entrenched and deep seated bias against monarchy or the indigenous people they preside over, or they fear them as a threat to democracy or their institutions and positions, and therefore, (2) no legislation exists in most countries to support or even to acknowledge their claims lest they gain some legal entitlements or advantage that these nations do not want them to have.
This is a protective, but unnecessary, stance especially in regard to monarchy. (See "Ideals" and "Advantages" on how limited or constitutional monarchy has profoundly enhanced, enlarged and expanded democracy and prosperity for those countries that have adopted it)
But even though monarchy is rarely recognized legally in domestic law, royal families are recognized socially, because most people know intuitively that they have lawful claims that are real and very significant.
The same is true of high academic degrees or titles. For example, if it is true that a person could legitimately claim that he has an earned Doctor of Philosophy (Ph.D.) degree from a regionally accredited university, if this is actually the case, then the claim is obviously valid, real and genuine, even if there is no legislation to support it. There probably never will be legislation to this effect. The same is true for royal titles, it is socially acknowledged, but rarely will any nation legally acknowledge the inherent right that an sovereign heir has to the scepter, throne and crown of their fatherland. It just won't happen. Still it is recognized as "just" that "sovereign rights and self government [be] restored to those who have been forcibly deprived of them." (The Atlantic Charter, 1941, Winston S. Churchill and Franklin D. Roosevelt) (www.yale.edu/lawweb/avalon/wwii/atlantic/at10.htm)
It needs to be remembered that in international law, "The absent sovereign remains the de jure government of the country." (Oppenheimer, "Governments and Authorities in Exile," American Journal of International Law, p. 571) (Hersch Lauterpacht, C. J. Greenwood, International Law Reports, p. 559) The point is, "De jure sovereignty is supreme . . . legal authority." (The Rt. Hon. Chris Patten, CH, "Sovereignty, democracy and constitutions:" http://dspace.anu.edu.au/bitstream/1885
/41595/2/chris-patten.pdf) It is permanent and inviolable, which ". . . means that the occupying power may obtain de facto sovereignty [sovereignty 'in practice' or 'in fact'], but the ousted sovereign retains it de jure [that is, 'in principle' and 'in law']." (Karen Guttieri,"Making Might Right: The Legitimization of Occupation," p. 13: www.allacademic.com//meta/p_mla_apa
Because sovereignty is "a synonym for independence" and it is "the exclusive right" to govern, if another government is formed forcing the lawful king, monarch or sovereign prince out, all that new government can ever obtain in "de facto" sovereignty. (www.allacademic.com/meta/p_mla_apa_research
_citation/2/5/4/0/9/p254095_index.html) Why? Because, it can never, worlds without end, fully obtain "the exclusive right" to govern and full "independence" from the rightful sovereign. In other words, the new government can never be completely legitimate, because the "de jure" or legal right can never be obtained if the former king, monarch or sovereign prince, or his or her descendants, never relinquish their privileged right to the scepter and throne of their ancestors. Modern governments can recognize the subsequent Republican governments as valid, but "by law," as long as the vanquished sovereign never gives up his or her rights, they are his, and his posterity's, to the end of time. But every generation afterwards must use their titles. This is the recognize diplomatic protect that must exist in every generation. The use of one’s title as, for example, HIRH Prinz Georg Friedrich von Preussen, even in a social situation, is an act of protest or a declaration of assertion of the true and authentic right to exercise dominion. Such an act declares to the world that one preserves rather than relinquishes one’s rights. In fact, as shall be explained later, if this formal diplomatic protest does not continue in an uninterrupted fashion, all rights are lost and revert permanently to the usurping government or to the people.
However, holding a right to something is very different from the freedom to exercise and enjoy that right. There are many examples of cases where strong "de jure" property rights were of limited value because they could not be enforced or actualized. President Cleveland concluded long ago on December 18, 1893 that the United States was guilty of wrong doing for the illegal takeover of the kingdom of Hawaii, therefore, he called for the "restoration" of the Hawaiian monarchy. Mr. Boyle wrote, "Under international law when you have a violation of treaties of this magnitude, the World Court has ruled that the only appropriate remedy is restitution." (www.hawaii-nation.org
/boyleall.html) Because according to accepted law, conquest does not transfer sovereignty rights. International law also forbids the creation of new states in occupied areas. So according to the law, the lawful heir, whoever that is, does have the recognized "right" to rule his or her country, but the problem is, he or she cannot exercise it or enjoy it at this time, and may never receive back his or her rightful patrimony. The same is true for many other royal families throughout the world, they are "de jure," but they are blocked and legally thwarted from ever enjoying the full rights that they were robbed of, by current or former governments. Nevertheless, according to the law of nations, reiterated by Emerich de Vattel:
. . . if the bona fide possessor [the defacto ruler or republic] should discover, with perfect certainty, that the claimant is the real proprietor [the real "de jure" sovereign], and has never abandoned his right, he is bound in conscience, and by the internal principles of justice, to make restitution [not just compensate, but give back to the rightful ruler what he or she truly owns --- defacto rule of his own country]. (The Law of Nations, Book II, #141)
It is a general principle which applies both to individuals and to nations that ". . . all men are to restore what they are possessed of, if another is proved to be the rightful owner." (Hugo Grotius, On the Law of War and Peace, (1625) Book II, Chapter 10:1: www.constitution.org/gro/djbp_210.htm) At the heart of the 1814-1815 Congress of Vienna was, "the idea of Legitimacy [which is lawfulness by virtue of being in accordance with law] was the belief that displaced monarchs . . . were the rightful rulers of their nations and should be restored to power." (www.teacherweb.com/NJ/Metuchen
The authority of the legitimate power having in fact passed into the hands of the occupant, the latter shall take all the measures in his power to restore and ensure, as far as possible, public order and safety, while respecting, unless absolutely prevented, the laws in force in the country.
The Regulations make of the occupying power a trustee for the sovereign [king or prince] in exile, for whom the occupant administers the territory until a return [and restoration] is negotiated [and accomplished]. (www.allacademic
In other words, there is strong and powerful legal precedence for the idea that those who have been robbed should be restored. That is, there must be a ". . . full intention of restoring the place to its lawful Sovereign. . . ." (Hugo Grotius, On the Law of War and Peace, Book II, chapter II, no. X) These principles are "implicit in International Law." (op.cit., Kerr) "Implicit" means "implied though not directly expressed" or "inherent in the nature of something." (http://wordnetweb.princeton
If something stolen cannot be restored, according to international law, just compensation should be, in the very least, to give to the unlawfully deposed emperors, kings and sovereign princes, and their rightful successors, the status of being fully recognized and acknowledged sovereign persons in the glory and majesty of their "de jure" regal rights and royal prerogatives. This would be in addition to their legal and ethical right as genuine monarchs.
In summary, usurpers, foreign or domestic, are:
. . . obliged to restore the crown to the right owner, or to his heirs, till it can be presumed that they have renounced [or abandoned] their pretensions [their royal right to rule], and this is always presumed, when a considerable time is elapsed without their being willing [to use their titles] or able to make any effort to recover the crown [such as a diplomatic protest where possible]. (Jean J. Burlamaqui, The Principles of Political, vol. 2, part I, chapter, 3, no. 9)
Even though the right in justice exists for restoration, it is extremely rare, but a terrific example of a "prescriptive" right being restored, after almost 1,900 years of consistent protest, is the creation of the modern State of Israel. "Prescription" requires that a dispossessed nation must never stop claiming their right to their territory in order to keep those rights intact. Once they stop for 100 years or what is called time immemorial, there is an absolute and irrefutable legal preclusion against their claim making it null and void or empty forever afterwards. However, if they continue to maintain their claim in every generation, it legally and lawfully never ends.
Almost 1,900 years later, by virtue of the preserving principles of "prescription," the Jews were restored to their sovereign rights and privileges in the land of their forefathers. Because:
. . . they have disputed the possession of the land, by continued protests through their literature and their private and public worship. In spite of all the oppression which has been like the grinding of the upper and nether millstones, they have constantly and steadfastly manifested their animus revertendi. (William E. Blackstone, "May the United States Intercede for the Jews," Our Day, Joseph Cook, ed., vol. 8, no. 46, July - December 1891, p. 248)
"Animus revertendi" is ". . . a Latin phrase that means ‘With intention to return’ (Barron's Law Dictionary 5th Edition).” (http://en.wikipedia.org/wiki
The point is, "Prescription cannot be founded upon dereliction in their case, for they have never abandoned the land. They made no treaty, they did not even surrender." (Ibid., p. 247) Their public and private protest is explained as follows:
In the annual passover service they say, "At present we celebrate it here, but the next year we hope to celebrate it in the land of Israel. This year we are being accounted aliens here, but next year we hope to be children of freedom in the land of Israel."
The same sentiment is publicly repeated in all their great feasts of the Passover, Pentecost, New Year, Day of Atonement, and Tabernacles, and also, by all Orthodox Jews, in the regular Sabbath service, and in the morning prayers for every day in the year. (Ibid.)
In other words:
It is clear therefore that, in the foundation principles of international law, there is no basis for prescription against Israel, either on the ground of dereliction [neglect or lack of protest] or of undisputed possession [they have disputed it at least annually if not every day for 1,900 years]. (Ibid.)
This kind of protest is similar to what is required for a deposed monarch, and his successors, which is to consistently use his royal titles and arms as an obvious sign that he has not abandoned or neglected his rights. The Jewish people preserved their prescriptive rights by public protest at least annually. In fact:
Israel is the only state that was created in the last century whose legitimacy was recognized by both the League of Nations and the United Nations. The League of Nations Mandate that was issued by the victorious powers of World War I did not create the rights of the Jewish people to a national home in Palestine, but rather recognized a pre-existing right, for the links of the Jewish people to their historic land were well-known and accepted in the previous century by world leaders from President John Adams to Napoleon Bonaparte to British Foreign Secretary Lord Palmerston. These rights were preserved by the successor organization to the League of Nations, the United Nations, under Article 80 of the UN Charter. The ancient, even biblical, association of the Jewish people with the Land of Israel was accepted in the Judeo-Christian tradition as a historical axiom.
From a legal standpoint, an opportunity arose [in the 20th Century] to assert these historically recognized [legal] rights. (Address by Prime Minister Netanyahu to the United Nations General Assembly, September 24, 1998, Ministry of Foreign Affairs; www.mfa.gov.il/mfa/go.asp?MFAH0h3f0) (Benjamin Netanyahu, A Place Among the Nations: Israel and the World (New York: Bantam, 1993), pp. 14-15) (www.jcpa.org/jl/vp507.htm)
Hence, we have a powerful example of how "prescription" can preserve sovereign rights indefinitely for thousands of years.
(41) Are there any court decrees that sustain the rights of deposed kings or recognize their "de jure" internal sovereignty as genuine and never ending?
Yes, for example, because of a number of judicial decisions in the last fifty years in Italy, a number of well-known jurists concluded that a ". . . prince, . . . [if he has not renounced, ceded or abandoned his sovereignty], conserves [maintains] the valid [legal] right to be able to exercise his power over the territory he was deprived of." (Professor E. Furno, with Professors E. Eula, F. Ugaro, G. A. Pensavalle De Cristofaro dell’Ingegno, "Questions being examined by the Magistry," Criminal Magazine, 1961) These men also concluded that, "The position of the dethroned sovereign at an international level still finds confirmations of considerable importance, being concrete and unequivocal [that is, they are not arguable, but are solid and binding]." (Ibid.) Validations include:
(1) "Reigning sovereigns . . . accept and respect the prerogatives [and royal rights of deposed monarchs],"
(2) States that have dispossessed their rightful kings, or sovereign princes, exile them and their heirs because they instinctively know that they have the inalienable right to rule their countries,
(3) If the ex-monarch wants to live in his own country, he must renounce his claims, all of which would be absurd if he had no authentic rights,
(4) If a deposed monarch is asked to return and assume the throne, there is always a legal act of agreement drawn up showing two distinct and equal claimants to the same sovereignty, and
(5) The dethroned monarch owns his heraldic identity. Neither the kingdom he reigned over or subsequent republic has a right to these identities. These rights represent his or her supreme title and prerogative to throne and country. (Ibid.)
In other words, the Italian magistry in the past has accept the authenticity of deposed monarchs and their successors. This has been sustained again in recent history. In recognition of this important truth, an international court of arbitration in Italy (also the Italian Supreme Court of Appeal) on May 9, 2003, decided that "for an unlimited period," that is, as long as there will be descendants who follow the law to keep their rights alive, that a rightful successor to the kingdom of [name redacted] and his heirs may enjoy the full right of title as the "Sovereign Head" of his house and former kingdom, and enjoy "all the qualities, prerogatives, attributes and styles of that rank and with the possibility to use coat of arms, titles and designations which belong to him by hereditary right." (Jacob W. F. Sundberg, Professor Emeritus of Law, "Regarding dethroned princely Houses and their legal rights," Stockholm, September 15, 2006: www.mocterranordica.org/Sund_Eng.pdf) In addition, such may use "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 their hereditary dynastic Orders." (Ibid.) This is an extremely significant ruling that confirms everything we have taught in this thesis on royalty, nobility and sovereignty. The learned author then concluded:
As far as the head of a dethroned, formerly ruling princely house is concerned, in this particular case [which reflects on the status of all others in the same boat, that is, that this former ruling house] . . . has had its position as a subject of international law recognized, this should imply that the person concerned [and all others by implication] may on this account [because of this ruling] be considered as having rank equal to a head of state and such rights and obligations which go with it. (Ibid.)
The implication of this are extremely important and far-reaching. Legally making a rightful pretender to an ancient throne that no longer exists comparable to a current, reigning, royal head of state is extraordinary and amazing, but it fits perfectly with the law and the eternal and unending nature of hereditary rights, especially as they related to sovereignty. Dr. Stephen Kerr declared, ". . . Under the rules of the Congress of Vienna heads of former ruling houses are considered equal to heads of state." ("Interim up-date of Professor Kerr's 1973 Research --- Part 1:" http://web.archive.org/web/20050208083648
/dynastic-law.com/1973b.html) That is, the mediatized or dethroned princes and counts of Germany were considered royalty and equal to the ruling princes and counts of Europe. This international law principle is still effective today.
By virtue of an agreement made on June 10, 1958 by the United Nations, the decisions of this particular court in Italy are officially authoritative in over one hundred and twenty-five countries. And according to the Maastricht Treaty of 1992, it is also valid in all the countries of the European Union. Hence, the judgment of this court pertaining to law is internationally powerful and binding throughout the entire earth. It confirms and validates the law of nations by making a non-reigning "de jure" sovereign prince equal to a reigning head of state. "De jure" princes, because they are the personification and embodiment of all government authority, are governments in exile. Truly they have profound and far-reaching, recognizable rights. For example:
. . . The Ordinary Tribunal of Ragusa of the 9th May 2003, in session as an international court of arbitration, in the case between the Higher Institute of Nobiliary Law vs. [name redacted], [declared the following rights were sustained for one house]: . . .
a) the quality of Royal Highness and Royal Prince of; . . .
b) the right to designate himself Sovereign and Head of Name and Arms of the Royal House of . . . 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 possibility to use coat of arms, titles and designations which belong to him by hereditary right;
c) the nobiliary style of Nobleman of the . . . and by the Grace of God and hereditary right as legitimate Pretender to the Thrones of . . . Sovereign Grand Master of the Military Order of, . . . Grand Master of, . . . Grand Master of, . . . Grand Master of; . . .
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; and
e) the quality of a subject of international law and of Grand Master of non-National Orders within the terms of the (Italian) Law of the 3rd March 1951, No. 178. (op.cit., Sundberg)
Deposed sovereignty is a recognized legal reality. Similar hearings in the past confirmed the same that the heir of an ancient sovereignty has the full and complete:
. . . 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. (Don Jan-Olov Malmberg, Real Aula Mallorquesa, Bulletin, Chemin de Notre Dame 2, ed., 2002, p. 20 and Dr. D.D. Breimer, The Legitimacy of Orders of St. John, 2006, pp. 296-297)
These findings have legal force in all the countries which signed the New York Convention on arbitration from 1958, that is almost all membership countries of the Untied Nations.
(42) But didn't some expert say the Italian Courts are unreliable and made bad decisions?
Yes, for example, Guy Stair Sainty, an expert in nobility and royalty, said that ". . . the Italian Courts have been persuaded to consider numerous claims to titles of nobility without actually applying nobiliary law, leading to some bizarre decisions." (www.chivalric
In 1990, an appeals court in Milan, after hearing the evidence brought by the plaintiff, prince Pietro Donato Paleologo Mastrogiovanni di Bizanzio, confirmed his claim to be the heir of the Byzantine empire and convicted [Henri de Vigo Aleramico Lascaris Paleologo] of usurping the name Paleologo. (www.maineworldnewsservice
An Italian Court had earlier declared Henri de Vigo Aleramico Lascaris Paleologo as the rightful heir. In fact, "Over half a century ago the famous Neapolitan clown, Toto, won court recognition as heir to the Sacred [Byzantine] Throne." (Ibid.) Another example is a sentence of 18-07-1945, no. 475, IV Section, of the regio Civil Tribunal of Naples, and 07-08-1946, no. 1138, IV Section, of the Tribunal of Naples of the Republic of Italy decreed that a fourth person, Antonio Focas Flavio Ducas Comneno, was "heir and successor to the various Byzantine dynasties of the Emperor Constantine the great." That is:
The Byzantine Emperors were successors and heirs of all the despotate rights, honors and titles of the Emperors who proceeded them. Therefore, there is no doubt that the claimant, being the only living heir and successor to the various Byzantine form Emperor Constantine the Great on, receives in his person, all the rights, honours and titles they enjoyed, and has the uncontested right to resume all the titles that their families held. (Ibid., Tribunal of Naples)
The problem with this is that these claims are clearly impossible. Not only was the Byzantine imperial title elective, but when a new family usurped a standing Emperor, succession laws gave to the usurper the full, total, and complete right of legal internal sovereignty and the former emperor, who lost, lost everything and had no "de jure" internal dynastic right to anything. Therefore, there was nothing left to pass on. He was completely and totally disenfranchised of any legal claim. Then, when the imperial title did become hereditary in the last 200 years of its 1000 year existence, all rights lawfully transferred to Andreas Palaiologos on 12 May 1465, who legally and lawfully sold all his imperial rights, titles, privileges, etc. to King Charles VIII of France in 1453. (See "Question #32" and the article "Sovereignty in the Holy Roman and Byzantine Empires") So as Guy Stair Sainty said, the Italian Court obviously failed in this example to ". . . actually applying nobiliary law, [which lead] . . . to some bizarre [or patently wrong] decisions." (op.cit.) There was nothing wrong about the right of true successors to rights, title, and honors, but they failed to apply the rules of succession and the rules of "prescription," and therefore made some bad mistakes. This was most unfortunate as it leads people astray into believing things which are not true, accurate or factual.
One of the most important areas that they have failed to take into account violated not only well-known principles of what is considered fair and equitable, but universal, international beliefs about what is ethically and morally right. For example, the rules of "prescription" as explained in questions 6 through 12. Emerich de Vattel defined this important legal term long ago. He wrote:
Prescription is the exclusion [rejection, reputiation or elimination] of all pretensions [pretense] to a right — an exclusion founded on the length of time during which that right has been neglected: or, according to Wolf's definition, it is the loss of an inherent right by virtue of a presumed consent [or implied abandonment based on actions or inactions, such as, not using ones titles]. This definition, too, is just [and equitable] . . . it explains how a right may be forfeited by long neglect. . . . (The Law of Nations, Book II, chapter XI, no. 140)
The point is, when a court makes a decision, you don't know what evidence was presented and what was withheld or even hidden from them. For example, genealogy proof that is valid is extremely difficult, as it is not an exact science, because information is missing, and if a claim cannot be proven beyond reasonable doubt, it is invalid for the purpose of suppporting a claim to sovereign rights. Where genealogy experts in the court showing undeniable evidence of irrefutible descent, and that no other person or family had a superior claim? Was evidence made available that showed that all generations used their titles, so that the claims were never lost according to the rules of "prescription?" And if the court used the preponderance of evidence test (most Italian courts do for cases such as this), then all that was required for the decision was a 51% assurance after weighing the evidence on hand, which may have been inadequate. The problem is that this leaves as much as a 49% possibility, or practically a 50/50 chance, that their decision was not only wrong, but dead wrong.
Gunner Bramstan, a doctor of law and professor emeritus of the Universities of Uppsala and Lund, explained in reference to Italian courts, that if, ". . . decisions are tainted by objectively established nullity; i.e. are affected by clear, grave and indisputable irregularities. . . ," then the decisions are no longer legally binding. (Gunnar Bramstang, "The Independence of the Courts and the Validity of Judgements vis-à-vis Government and Administrative Agencies," The Bulletin Real Aula Mallorquesa, 2010, p. 50) In other words, no matter what a court declares is true, if it is false, it is false. Court decrees that are patently wrong, are wrong and nothing can change that. Studies have pointed out that, "[Courts in Europe often] come up with an assessment [a final judgment or decision] even if the evidence is patently incomplete," which would be considered judicial misconduct in the United States. (http://papers.ssrn.com/sol3/papers.cfm
?abstract_id=1283503) The Italian court system more particularly than others suffers from this kind of misconduct where subjective rulings are made that are not based on an objective or solid proof. (See also: www.everyonegroup.com
Another problem is history, "In 1955, an expert on noble pedigrees, Enrique Carlos Count Zeininger de Borja, recalled in the Madrid journal "Hidalguía" a number of other instances in which courts had approved historically impossible claims." (www.maineworldnewsservice
He noted that one of the big problems was ". . . there is no adversarial process and no hearing of the opinion of serious experts. . ." to establish the facts, but the courts were being used by contrived cases to validate impossible claims. (Ibid.) In other words, they were being set up to for the defendent to win and have no real evidence against the claim. He concluded that "Italian courts appear to excel in handing down such verdicts." (Ibid.)
These courts can be depended on to uphold the law or be legally correct and accurate as pertaining to ancient rights in general. But as pertaining to particular cases, they have been out in left field, not having all the evidence or basing their decisions on inaccurate assumptions or subjective opinions or suppositions. The only real legitimacy, of value and worth in this world, is the legitimacy of truth. All else is either dubious, or much worse, being a misrepresentation of what is true, and, therefore, promoting make-believe and impersonation of what is genuine and authentic.
These Courts were not wrong in declaring that the "de jure" or legal sovereignty of deposed monarchs is perpetual, unending and inalienable. They were only wrong in their conclusions about specific claims.
The real point here, and it is a big one, pertains exclusively to "de jure" internal sovereignty and royal prerogatives and rights. That is, that the full and complete right to rule can still be recognized and acknowledged, even though the loss of "defacto," real or actual control over a territory may have occurred thousands of years ago. In other words, the Italian courts upheld the law of nations as pertaining to hereditary "de jure" sovereignty; that is, that it is possible for it to last forever down throughout all generations to the end of time. In this, they were absolutely correct.
Other courts and scholars have also recognized the rights of the heirs to ancient thrones, a French Court of Appeals in the 1980's affirmed, validated and upheld the legality of "de jure" rights of governments in exile, which is the same kind of legal sovereignty that deposed monarchs hold. This court decreed, and this is important, that:
. . . a government in exile [which is "de jure" internal sovereignty --- the same thing as deposed monarchs hold] does not lose its rights to make appointments and to award Orders or commissions, to maintain its [legitimate] authority as far as can be done, and to pass on its legality under international law to successive heads-of-state. (www.angelfire
Since this court also had international jurisdiction, it reflects general European legal opinion on the permanent continuance of rightful or "de jure" internal sovereignty, if kept alive and maintained, so it is never lost, forfeited or ruined by neglect, implied abandonment and estoppel. Dr. Stephen Kerr explained that:
History is filled with claims to sovereignty in international law being kept alive by diplomatic protests [by the rules of prescrition]: The Jacobite, Carlist (Spain), Miguelist (Portugal), Nationalist Free China in exile on Formosa, and the three Baltic Republics following the 1940 Soviet usurpation are examples. ("Interim Up-date of Prof. Kerr's 1973 Research --- Part 3," http://web.archive.org/web
He further explained that "de jure" or former ". . . territorial States, kingdoms and principalities, as well as regnant [or reigning] princes, the pope, the United Nations, the International Red Cross, and the Order of Malta are [well-known to be] subjects of public international law." (See: "Dynastic Law") Hence, "a ["de jure" and/or reigning] prince is more than a private citizen. . . ." (Ibid.) "A prince possessing public law claims [such as, a deposed monarch] . . . is not a private person: In the contemplation of traditional public international law a prince is a person in public law and, himself, a subject of international law. (op.cit., "Interim . . . part 4") And "To this category of subjects of international law belong also dethroned sovereign princely Houses. . . as long as the princely House has not given up its claims. . . ." (C.A. Reuterskiöld, International Law, Particularly as Swedish Public International Law, 1896, 1927, p. 47)
Professor Emilio Furno, a former advocate in the Supreme Court of Appeal in Italy, also concurred. He wrote:
The holder of such prerogatives is a subject of international law [a public person] with all the logical consequences [or royal privileges] of that situation. That is to say, a deposed Sovereign may legitimately confer titles of nobility, with or without predicates, and the honorifics which pertain to his heraldic patrimony as head of his dynasty. ("The Legitimacy of Non-National Orders," Rivista Penale, No.1, January 1961, pp. 46-70)
As such, the Chief or Head of a Royal House is considered to be of a ". . . rank equal to a head of state." (op.cit., Gunnar Bramstang, p. 46) This status is the highest secular office known on earth, which explains such exalted prenominals as "His Majesty," "His Imperial HIghness," "His Royal Highenss" or "His Serene or Illustrious Highness," etc., because as Dr. Kerr declared, ". . . possession of a valid [authentic] claim [for a deposed monarch or successor] amounts to the same thing as 'dominion' [which by definition means the 'right' or privilege of lawful 'sovereign authority']." (op.cit., Interim) (http://dictionary.reference.com/browse
/dominion) The point is, again, that deposed monarchs, and their successors, are perpetual sovereigns if they properly maintain these rights. Therefore, "The sovereigns of those kingdoms which ceased to exist . . . continue to exercise sovereign rights. . . ." (V. Powell-Smith, "The Criteria for Assessing the Validity of Orders of Chivalry" in Nobilitas, Malta, 1970) They continued, because they had the perfect right to do so. Why because in international law:
. . . [The sovereign rights] of a legitimate monarch was in principle [fundamentally] inalienable [or inseparable]. The only [way this could be changed] was through [the] freely given consent of the affected monarch." (Mikulas Fabry, "Succession and State Recognition in International Relations and Law," On the Way to Statehood: Secession and Globalization, Aleksandar Pavkoviæ & Peter Radan, eds., 2008, p. 54)
Monarchs held this exclusive right. It was absolute, indissoluble and indestructable. It is something unusual and supreme, but:
It is not the shape of a crown, or the value of its jewels, or the formal style attached to a name, or the size of a dominion [or no dominion as for a deposed monarch], or the large extent of political power, which constitutes sovereignty. (John Penford Thomas, A Treatise of Universal Jurisprudence, Book II, chapter x, no. 27, 1829, p. 301)
. . . He who [legitimately] exercises [the] imperial [or royal] prerogative, is a [true] sovereign, [and is] equal [or equivalent] to other kings, whatever may be his or their title. He enjoys regal [or by definition, majestic] dignity. (Ibid.)
In other words, "All sovereigns are equal, not of course in power, but in rank." (Mighell vs. Sultan of Johore, A Selection Of Cases on The English Law Of Contract, 1893, p. 377) For example, as stated in an article in America, the ". . . native Princes [of India] . . . claims to sovereignty were . . . equal to those of the reigning monarchs of Europe. . . ." (Conrod Swack Lamer, The United States Democratic Review, vol. 40, 1857, p. 407) Another example of this important reality is, "If the pope [or some other monarch] is sovereign, whether his state [is] . . . great or small, he is, as a prince, the equal of the emperor of the French or the emperor of Austria. . . ." (Orestes Augustus Brownson, The Works of Orestes A. Brownson: Politics, vol. 16, 1885, p. 559) Sovereign equality under the law was a part of the Treaty of Westphalia and is enshrined in the charter of the United Nations.
But not only are reigning sovereigns equal to each other, but dethroned monarchs are equal, identical and equivalent to the highest of all reigning monarchs by law. The Congress of Vienna, which reigned, from 1814 to 1815, made this distinction clear and unmistakable. It was established or set in cement that, ". . . the monarchs of the mediatised states [deposed princes] were to be considered equal . . . [or of the same royal or regal status and rank as] the remaining [regnant] sovereign monarchs. . . ." (http://en.wikipedia.org/wiki
/German_Mediatisation) In other words, a "de jure," or disposed, sovereign is legally the equal of a current, reigning head of state. This was confirmed by the statement of three international legal experts as quoted in the last three answers. In other words, whether reigning or not, a monarch, or his lawful successor, is sovereign and therefore a royal dignity.
The exalted imperial and/or royal status of disinherited kings and sovereign princes, and their successors, are rarely recognized, but, as discussed above, it has been rightfully acknowledged in some courts, which have international authority. The legal significance of this is powerful and far reaching, but the concepts are not well-known or given much notice by the general public or by scholars. It is not politically correct or currently a popular practice to support the sovereignty of dethroned monarchs or legitimate governments in exile in this day and age. But again, as Dr. Kerr has stated, it is "implicit [implied, inherent, basic, intrinsic and fundamental] in international law" to uphold this important truth. ("King and Constitution in International Law," The Augustan, 18:4, 1977, p. 126) What is ethically and morally right is at the heart of all good and true law, and the law supports the genuine and authentic sovereign rights of the deposed kings and sovereign princes.
(43) What if a dethroned monarch, or a rightful successor, accepts citizenship in the republic that dispossessed him, doesn't this create an implied abandonment or acquiescence that destroys all royal rights or any claim to "de jure" sovereignty?
On the face of it, it looks like all is lost according to the rules of "prescription." That is, in the words of Emanuel Kant, a deposed monarch, who was not a tyrant or deserving, ". . . has suffered an injustice in being deprived of his throne and has a moral right to it (his 'property'), provided he does not waive it." (Peter Nicholson, “Kant on the Duty Never to Resist the Sovereign,” Ethics, vol. 86, no. 3, April 1976, p. 225) The question is, does he waive his royal rights to be a citizen of his former country? Kant believed that "if he [the deposed king or sovereign prince, or his successor] accepts citizens status he quits his claim to the throne. . . ." (Ibid.) So, this consideration is very important as many prominent claimants (true and rightful pretenders to ancient thrones) are now citizens of the republics of their former countries.
First of all, the ex-monarch, and lawful heirs, are exiles within their own countries whether they are citizens or not. They were and continued to be exiled from their rights --- their rightful place is as heads of state. They were unlawfully deprived, robbed and cheated out of this privilege --- a right most precious above all on earth. Yet, "The wrong done the ruler when he is deprived of his throne, is [unfortunedly and wrongfully] represented in such a way as to suggest that it is only slightly, if at all, different from that which he suffers when he is robbed of his household furniture." (p. 445-446) This is a major act of theft more serious than any other. It is not only treachery, but treason of the highest and most serious order.
These stolen rights were not given up by the deposed monarchs, or their successors, if they lawful choose to live and dwell among the people they or their ancestors once ruled. This is recognized indirectly by a well honored treaty as well as common sense and the acknowledged principles of what is just and appropriate. The European Convention on Human Rights in Article 3 of Protocol 4 of 1963 stated unequivocally that: "No one shall be deprived of the right to enter the territory of the state of which he is a national." (www.hri.org/docs/ECHR50.html#P4.Art3) To require anything, such as a renunciation or the loss of "de jure" sovereignty for a former king, prince, or heir, to live as a citizen in the land of their forefathers, is counter to all law. International law recognizes "any agreement [whether abdication, renunciation or cession] signed under duress is void [or has no legal force, power or efficacy]." (Article 52 of the Vienna Conventions of the Law of Treaties) (www.tibetjustice.org/reports/occupied.html) No one has the right to take away a person's private property against his will, especially if that property is inalienable and indefeasible; such as, the possession of "de jure" sovereignty of a deposed monarch or successor, unless it is done willingly either by abdication, cession or renunciation, or by neglect, disregard or implied abandonment. The point is, "Sovereign power . . . cannot be invalidated [or destroyed] by any other human power [but only by personal consent, not by force, threat or coercion]." (op.cit., John Penford Thomas, chapter II, no. 13, 1829, pp. 170-171)
This was made eminently clear in a February 2010 Italian Court. In spite of hearing the contention of HRH Duke Amadeo of Aosta, claimant to the united throne of Italy:
. . . that the prince [HRH Prince Victor Emmanuel, the son of King Umberto II] forfeited his right to the dynastic title because in order to be allowed to return to Italy from exile in 2002, Victor Emmanuel had to formally recognize the Italian republic as the country's legitimate government," [the Court] "ruled the Savoy royal title can now only be used by Prince Victor Emmanuel and his son, Prince Emmanuel Filiberto. . . ."
". . . The claim to a long defunct royal line . . . was at stake [and the outcome was in favor of the son of the last king in spite of his Italian citizenship]." (Ibid.) This is a significant ruling, again, upholding the rights, the claims, the royal honors of former kingdoms. Being recognized as a court of arbitration in most nations, this ruling is binding all over the world and can be applied to the situation of all royal houses of dethroned monarchs. They have the lawful right to be citizens of nations, and not give up their rights to the throne, crown, glory and royal scepter of their ancestors.
"De jure external" and "defacto external" sovereignty, primarily the domain of international law, are not to be confused with "de jure internal sovereignty" --- the sovereignty of deposed monarchs and governments in exile. Otherwise, confusion results. (Please see questions (#1) and (#5) of Part I)
The following review has been built on the idea that the former questions and answers have been read. If they have, then the reader will have a foundation to understand this section and see that the future of nobility and royalty is bright and glowing and will continue to be a benefit for many generations to come.
Sovereignty is "'supreme power, absolute, indivisible, and perpetual.' Thus it stands in all the text-books of the law of nations." (David Jayne Hill, "Europe's Heritage of Evil," Century Illustrated Magazine, vol. 94, 1917, p. 9)
. . . Sovereignty is captured in the original French where souverain implies simultaneously something above, superior, or supreme with respect to others of its kind in terms of rank; and something that excels, surpasses, or is better than others of its kind in terms of worth. (Donald S. Lutz, Sovereignty, 2010: http://law.jrank.org/pages/19072/Sovereignty.html)
It is a transcendent honor to be a sovereign for "To be a sovereign is to exercise the highest authority that it is possible for man to obtain." (Henry Graham Crocker, U. S. Department of State, The Extend of the Marginal Sea, 1919, p. 195)
[A people can confer on a man] and his descendants forever the hereditary rights of [a sovereign or] prince. . . . [This act gave him] then and there the hereditary titles and [regal] prerogatives of prince [or king] . . . . [Once] conferred, [this puts] him and his heirs at the head of the . . . people forever. (Isaac Mayer Wise, History of the Hebrews' Second Commonwealth, vol. IV, chapter XIV, no. 2, 1880, p. 137)
. . . When the people have once transferred the ruling power, they cannot licitly [legally or lawfully] revoke it at will. If they have set up a hereditary monarchy, they are obliged to leave the ruling authority with the monarch and his heirs . . . continuing through an indefinite number of generations. . . . Hence, a later generation can revoke the original grant of power only when the monarch violates some of the conditions expressly stated in the original compact, or when he has gravely abused his power to the serious injury of the people. (John A. Ryan, "Catholic Doctrine on the Right of Self-Government," Catholic World, vol. 108, January 1919, p. 443)
But remember, ". . . an exiled monarch does not lose it [his sovereignty] when the cause of his exile is unjust, as, for instance, insurrection or usurpation." (Johann Wolfgang Textor, Synopsis of the Law of Nations, 1680, chapter XX, no. 18(4) In other words, ". . . the banished monarch . . . has retained them [his rights, his sovereignty, his royalty, his majesty in international law] because it is some unjust cause that has driven him into exile, such as insurrection, usurpation, or hostile force." (Ibid., no. 18(3) He, and his legitimate successors, continue to remain the rightful rulers.
. . . A man cannot acquire a sovereignty over a nation by bare seizure. . . . [Theft is] no more a lawful title to the sovereignty [of a nation] . . . than robbery is a lawful [and legitimate] manner of becoming rich. (Jean Jacques Burlamaqui, The Principles of Natural and Politic Law, vol. 1, part 2, Chapter III, no. VII)
Stealing is a crime no matter if it is a nation or someone's automobile. Again:
A sovereign whose domains have been conquered (if he is an actual person, not merely a title) does not lose his sovereignty unless he cedes his right to the throne or abdicates, but loses only the actual possession through conquest and consequently preserves the right to do everything not implied by possession. (Guglielmo Ferrero, The Reconstruction of Europe, 1941, p. 140)
The question is asked, "Cannot the usurping government be legitimized at any time by the consent of the people? The answer of these writers is a decided negative."
According to Dr. Cronin, whose view may be taken as typical, "in the case of a monarchy or an aristocracy, the people are not the authority from whom consent is to be sought; and as long as the monarch or ruling aristocracy is in existence, it is on their authority and by their consent only that legitimation can be affected." (Michael Cronin, The Science of Ethic, vol.2, 1917, p. 533). . . .
The people have no right to legitimize the government of the usurper, since ruling authority is not in their hands. It rests with the deposed monarch. . . . In a hereditary monarchy, the right to rule remains with the royal descendant until he has lost it through the long process of prescription. Until that process is completed, the authority does not lie with the people, and cannot be conferred by them upon by the usurper. (op. cit., Ryan & Boland, pp. 93-94)
The rules of "prescription" can and does preserve a deposed monarchy, that is, it can keep their lawful rights alive and well by following its just and equitable principles. "Prescription" is about "internal sovereignty" or the sovereignty of dethroned kings and princes and their successors and a "defacto" or usurping government that has taken rule away from the monarch or rightful internal government. It works because "prescription" requires "peaceful" and "undisturbed" defacto rule by the usurping power. But if it is continually interrupted by a dethroned monarch, or his rightful successors, by virtue of the continued use of their regal titles (which functions as the required protest to the usurpation) then "the prescriptive period would never be completed" or ever create a legal and legitimate loss of royal, imperial or princely sovereign rights. (op.cit., Textor, chapter IX, no. 25) In other words, if these rights are maintained and kept alive continually by the proper protest, the deposed will continue to be sovereigns endlessly as long as the royal family continues to exist on the earth with a designated heir or successor.
Prescription is a title to the ownership of property [and/or sovereignty] which arises out of long-continued and uncontested possession and overrides all earlier claims to the property [or the right to rule]. It makes it impossible, after the period required for prescription has elapsed, to revive old claims to [royalty or to] the property [involved]. (Edmund Burke, Selected Works of Edmund Burke, Vol. 4, E. J. Payne, ed., footnote 21 for chapter 4)
That is, ". . . sovereignty, like property, if once alienated, can never revert." (David Hoffman, Legal Outlines, vol. 1, 1829, p. 197) "[Formal] recognition [on the part of the usurper or the deposed sovereign] estops the state [either the original sovereign or the usurper from] contesting its validity in the future." (Surya Prakash Sharma, Territorial Acquisition, Disputes, and International Law, 1997, p. 119) Estoppel means it cannot be altered. It is set in stone. The act is permanent and cannot be retracted or changed later on. However:
In order for acquisitive prescription to occur, the possession of the acquiring state must be. . . peaceful [or undisturbed, which means] (acquiescence [that is, "silence or absence of protest in circumstances which generally call for a positive reaction signifying an objection"] by any state that has any title [of ownership]) [or there is no transfer of title]. (op. cit., Jessup worldwide Competition in International Law, "Bench Memorandum 2010," p. 12 and I. C. MacGibbon, "The Scope of Acquiescence in International Law," vol. 31, British Year Book of International Law, 1954, p. 143)
"Prescription," can only take place if there is ". . . implied acquiescence [which is to passively comply to the new regime without protest by] the dispossessed sovereign." (John O'Brien, International Law, 2001, p. 210) "Proof of acquiescence on the part of the original sovereign is . . . essential." (op.cit., Sharma, p. 118) In fact, it is ". . . of paramount importance." (Enrico Milano, Unlawful Territorial Situations in International Law: Reconciling Effectiveness, Legality and Legitimacy, 2006, p. 88) It is ". . . the implied acquiescence of the dispossessed sovereign that are the basis of prescriptive rights." (S. K. Verma, An Introduction to Public International Law, 2004, pp. 120-121) Without this, the title or ownership to sovereignty remains the rightful property of the deposed monarch. That is, sovereignty can only be lost when it is "certain" that it is "the King's [or his rightful heirs] intent to surrender and concede his right and power" through implied or overt abandonment, which could be by abdication, alienation, acquiescence, ceding of rights or renunciation thereof. (Ibid., Textor, chapter 10, no. 18) In other words, ". . . Sovereignty cannot be acquired by the simple act of conquest [whether by rebellion, referendum or war], nor be transferred to the conqueror [or usurpers], if the sovereign does not cede it willingly." (Guglielmo Ferrero, The Reconstruction of Europe, 1941, p. 140) If there are no "indications and inferences of consent to the surrender," a passive compliance and a failure to use one's titles, arms, or award honors in the name of the former monarchy, then the usurping government --- "the republic's quasi-possession [of sovereignty] . . . will be interrupted." (op.cit., Textor) Interrupted under the rules of "prescription" means it is protested and therefore it is a disturbed possession or unpeaceful. The point is, if it is actually disturbed by an obvious and consistent protest, the right to "de jure" or lawful sovereignty never ends. "But after such protests and claims, if any, cease to be repeated, the actual possession ceases to be disturbed. . . ." (Ibid., p. 309-310) And if it is undisturbed, title is permanently lost to the deposed sovereign and permanently gained by the usurper or thief. This only takes one generation of acquiescence and disinterest for estoppel and permanent loss. "The underlying [or fundamental] rule for prescriptive title is that of estoppel, i.e., if a state [or deposed monarch] has "slept upon its [or his] rights," it cannot be allowed to [legally] revive [them]. . . ." (op.cit., Verma, p. 121) In other words, sovereignty only continues on as long as the protest continues.
The consistent use of regal or princely titles is a powerful and unmitakeable testimony or witness that effectively lets the world know that the claim has never been abandoned, but that the claimant is still a valid and legitimate pretender to all the rights and throne of his fore-fathers. This protest in every generation, renewed with each new successor, guarantees that "the prescriptive period would never be completed," never come to an end, so that title to sovereignty is never lost. (Ibid., chapter IX, no. 25) That is how the law works. It can safeguard original ownership rights on a never ending basis as long as it is maintained and renewed from generation to generation.
". . . The oneness, the indivisibility and the inalienable nature of sovereignty have . . . stood the test of time [in 'international law']. (Eelco van Kleffens, Recueil Des Cours, Collected Courses, 1953, vol. 82, 1968, p. 86) Each dimension has an internal and external component. ". . . Internal sovereignty . . . means supremacy of all other authorities within that territory and population. [While] . . . external sovereignty [is] . . . not supremacy but independence of outside authorities." (Hedley Bull & Andrew Hurrell, The Anarchical Society: A Study of Order in World Politics, 3rd. ed., 2002, p. 8) The sovereignty of deposed kings is internal and never ending. These characteristics are:
(1) Oneness, which is "The jurisdiction of a nation within its own territory 'is necessarily exclusive and absolute.'" (op.cit., Kleffens & Chief of the Supreme Court Marshall in Exchange vs. McFadden 1812) That is the internal dimension. The sovereignty of kings. Externally, it is about sovereign independence from others.
(2) Sovereignty, as indivisible, means that there cannot be two masters. One entity holds all the rights of sovereignty even though it is administered by different entities through a check and balance system or through a usurper under the rules of "prescription." (Ibid.)
(3) ". . . Sovereignty is inalienable, not in the sense that it cannot be ceded (history is full of examples of cessions of sovereignty, as many peace treaties attest), but in the sense that a sovereign power which divests itself of its sovereignty, ipso facto ceases to be a sovereign." (Ibid., p. 87) "That a nation [or monarch holding all the powers of the nation] may voluntarily cede its sovereignty is frankly admitted, but it can cede it only to somebody or something actually existing, for to cede it to nothing and not to cede is one and the same thing." (Philemon Bliss, Of Sovereignty, 1884, p. 105) Inalienable means that no one can take the right from the one, who owns or possesses it, no matter whether they are regnant or deposed, without their willing consent --- which can be implied or indicated by neglect to make the proper protest.
In an hereditary monarchy, this right [the right of sovereignty] is indissolubly [or inseparably] linked to the person of the members of the reigning family in the established order of succession. It [the right of sovereignty] can only die out [be destroyed] by the death of all its members, who, themselves, or their descendants, could have been called to the crown by virtue of that order of succession. (Charles Maurice de Talleyrand-Périgord, Memoirs of the Prince de Talleyrand, Vol. 2, 1891, p. 120)
If they maintain their rights, the rules of "prescription" uphold their imperial and royal prerogatives as sacred, inalienable and indefeasible.
The question of how long a “de jure” king may continue in this status [the status of being a deposed, non-territorial sovereign] is answered in Textor's “Synopsis Juris Gentium,” which says that the “de jure” sovereign in exile retain their status as long as they do not surrender their sovereignty to the “de facto” government. . . . The article says that a dispossessed dynasty may keep its claims alive by filing diplomatic protests against the usurpers, which the Stuarts did every generation and/or with every Hanoverian succession as required by international law, and, that a claim is deemed abandoned only when the protests cease. . . . Only when such protests cease does a prescription arise against the “de jure” rights of a legitimate claimant. . . . (David Hughes, The British Chronicles, vol. 1, 2007, p. 358)
Unfortunately for the Stuart dynasty, all the rightful descendants have failed from time immemorial to continue to maintain the claim. Hence, they no longer have a leg to stand on legally, which forfeiture is final and conclusive. (Ibid.) If they had maintained their claim by protest --- the use of their titles and arms, their rights could have gone on to the end of all time, because hereditary succession means ". . . that your children and your children's children shall reign . . . forever." (www.ushistory.org/PAINE/commonsense/sense3.htm) As taught from the book of Deuteronomy, by a prominent scholar about 1200 AD, "Once a king is anointed, he and his descendants are granted the monarchy forever. . . ." (Moses Maimonides quoted by Chaim Miller, The Gutnick Edition Chumash --- Book of Deuteronomy, 2005, p. 132)
He that is born a king and a prince can never be unborn . . . the eldest son of such a king is, in respect of birth, the Lord's anointed in his father's life-time, . . . to deprive him of his right of reversion [his right to be king in the future] is as true [an] injustice as to dispossess him of it [is an act of treachery and is a crime as repugnant as treason]. (Quoting M. Symmons in Samuel Rutherford, Lex, rex, or, The Law and the Prince, (written 1644),1910, p. 42)
"[Sovereignty bears] . . . the imprint of the personal property [the possession] of the [sovereign] Prince [whether deposed or reigning as a regant king]. . . . [And it] derives its transmissibility by hereditary right in perpetuity." (op.cit., Furno, 1961) "Perpetuity" means the state of being perpetual and unending. It has the potential, even the likelihood of being endless, especially if collateral lines are permitted to be dynasts. Under this provision, it could stand forever and be without end.
Only neglect and abandonment can destroy the title to "de jure," internal, legal sovereignty and therefore the royal prerogatives that go with it. In other words, ". . . exiled sovereign families retain certain de jure rights in (rarely-enforced) international law." (www.regalis.com/reg/savoyheadship.htm) The point is, dispossessed sovereignty is "implicit" and fundamental in law. (op.cit., Stephen P. Kerr) This has not changed or been altered. It is still binding, but because of a strong prejudice against monarchy and current practices, it is not officially recognized. Nevertheless, it is a most true and valid right supported by the principles of justice and by the ancient and modern laws of "prescription."
Therefore, ". . . a deposed Sovereign [because he has the highest authority] may legitimately confer titles of nobility, with or without predicates, and the honorifics which pertain to his heraldic patrimony as head of his dynasty." (op.cit., Furno, 1961) This is an unending perpetual right if maintained by the use of titles as a continual reminder. And valid courts of law have sustained, supported and upheld these legal realities many times over. (See Questions (#42) and (#43)
However, we live in a world of falsifiers. We are talking about scam artists and fake princes who impersonate what is real. ". . . The word pretender applies both to claimants with arguably genuine rights to the throne . . . and to those with wholly fabricated [made up, counterfeit or ficticious] claims. . . ." (http://en.wikipedia.org/wiki
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