THE WORK OF NOEL COX AND THE POSITION IN THE UNITED KINGDOM
1. NOEL COX ON SOVEREIGN RIGHTS IN AN EX-REGNANT DYNASTY
We have already discussed common critical positions on sovereignty as applied to the Pope and the Holy See. In this section, we will discuss a number of positions advanced by the barrister, legal scholar, and Anglican priest, the Revd. Dr Noel Cox[i], who has written extensively on chivalry, ecclesiastical law. and related questions of authority. Cox is an example of a scholar who rejects the concept of ecclesiastical sovereignty altogether. We will show that in this respect he is in error.
In the first place, in order to establish further general principles, we consider the opinion of Cox in re the sovereign rights of the Royal House of Sulu[ii]. This Royal House was formerly regnant until 1851. It continues to assert its possession of the fons honorum in exile. In a letter to Patrick McCleary of the International Commission and Association on Nobility, Cox gives a number of opinions on sovereignty that are of relevance to our discussion.
Firstly, Cox says, “3. A distinction can be drawn between sovereign rights of a broadly political sort – such as the power of life and death, of taxation, and of foreign relations. This is generally lost once a sovereign loses actual control over territory, and although a form of de jure sovereignty might be claimed for some time, possibly years, it becomes increasingly tenuous over time. In practice, the recognition of the new regime effectively ends any real sovereignty, even de jure.”
This view is contradicted by the major example of the Holy See during, and perhaps beyond, the period without territory from 1870 to 1929. The opinion of Cardinal Bertone is relevant here,
“Cardinal Tarcisio Bertone specified that during his speech on the occasion of the 80th anniversary of the “Lateran Pacts”. “The sovereignty of the Apostolic See is an unquestioned fact, and was a fact in the years after the unification of Italy, from 1870 to 1929, – he pointed out, as one can see from the continuous exercising of the active and passive ius legationis and the ius tractandi, as well as from its presence and action on international level, for instance, through pontifical mediations in case of conflicts between States”. Then Bertone stated: “We can say that the establishment of the State of Vatican City ‘adds’ territorial sovereignty to that sovereignty”.[iii]
Cox says that the capacity to conduct foreign relations (the ius legationis) is one of those that is lost without territory. This is easily disproven, however, in that both the Holy See and the Order of Malta, and indeed also the Sovereign Order of Saint John of Jerusalem, Knights of Malta, Federation of the Autonomous Priories (KMFAP)[iv] all maintain embassies and have formal diplomatic relations with states, while none actually are states themselves. We have also given examples in Part Two of this paper of governments-in-exile which preserve sovereignty while being deprived of territory.
Cox then qualifies the statement above as follows, “However, it must be recalled that sovereign rights, more narrowly defined, can and do survive, even when de jure sovereignty of a political nature is lost. The classic example, and one, I understand, which is pertinent to the question in hand, is the survival of the fons honorum or the right to confer honours and create Orders. Many proponents of the concept will agree that an ex-monarch or the head of a former ruling house is limited in the exercise of his regalian rights by the constitution which was in effect at the time of his abdication or removal. This position has much to commend it, and appears to have been generally accepted. In other words, a new order may be instituted by an exiled or deposed prince if the constitution in force at the time of their removal allows this, and the proper steps are followed.”
As alternative theories to this, Cox states that some scholars hold that the fons honorum belongs only to a monarch who has actually reigned and not to the head of a royal house who has not. Thirdly, he suggests that some hold that “the fons honorum disappears when monarchy ceases to be the form of government. This has simplicity, but little else to commend it.”
The question of how and to what extent an ex-regnant monarch is limited by a past constitution is more complex than it might first appear. In some constitutional monarchies, the monarch is effectively a “prisoner of the constitution” in a context of de facto parliamentary governance. But in an absolute monarchy, and certain other contexts, the constitution may depend entirely on the monarch. There is no reason why, in such a context, the dethroned absolute monarch would not possess the power to abrogate a constitution or issue a new constitution, having regard of course to the practicalities of such an action. This has particular relevance where a government-in-exile is maintained. Moreover, a constitution may contain provisions allowing for contingencies in the case of emergency such as rule by decree, suspension of provisions, or similar measures.
The idea of an ex-regnant sovereign possessing different attributes from a pretender who has never reigned chiefly becomes relevant where a pretender asserts that he has the right to abrogate acts of his reigning predecessors. Naturally, a pretender may choose to recognize what he will within the law; the question is rather to what extent his position allows him to have effective dominion over what may be seen as national (and thus state-based) rather than purely dynastic issues. An appointment made by an unabdicated ex-king as the sovereign head of a government-in-exile undoubtedly carries more weight than a purely dynastic action by a pretender. The leading case in this regard is that of King Peter II of Yugoslavia, who never abdicated but was dethroned by a Communist coup, and who maintained a government-in-exile until his death, exercising the fons honorum by granting titles and Orders. Among these grants were the recognition of Prince Edmond II de San Luigi and the grant to him of the Marquisate of Valjevo, and the Royal Protection granted to the Order of the Crown of Thorns of San Luigi. After King Peter’s death in 1970, his son, Crown Prince Alexander, issued a statement declining to recognize his father’s acts.
Sir Rodney Hartwell in Some Notes for Supporters of His Late Majesty King Peter II[v], opines that Crown Prince Alexander’s repudiation has no validity in international law. This is because the legal positions of King Peter and of his son are in his view quite different. King Peter exercised the fons honorum as an unabdicated monarch and retained in his person the full rights of sovereignty. Crown Prince Alexander is the dynastic head of the House of Karađorđević and would be the heir to the Kingdom of Yugoslavia in the event both of the reunification of that country and of a monarchical restoration, but he has never been a reigning sovereign and therefore has no legal right to abrogate the acts of his father. That he may choose not to recognize those acts personally and for his dynasty is, of course, a matter for him; however, we cannot but concur with Sir Rodney when he opines that “the Prince’s repudiation of the acts of his father the King serves only to tarnish the memory of his father.” What the Crown Prince cannot do is bind the Royal government of Yugoslavia, under whose authority his father acted. Had he continued to maintain a government-in-exile, it might be arguable that his acts would have had greater weight. However, the Crown Prince has chosen not to do this, and indeed as of 4 February 2003, accepted the de facto political position and ceased to designate himself as King of Yugoslavia, instead claiming the kingship of Serbia solely. This may fall short of a formal debellatio¸but it cannot be without consequence for his ability to act in Royal Yugoslav matters.
Having established the three main positions on the issue, Cox states his own belief as follows, “7. I support the first position, namely that a former sovereign ruler retains certain sovereign powers even if deposed. However, even if one accepts that a Sovereign probably retains fons honorum even if exiled, the question becomes one of how long this will last, and what conditions (if any) it is subject to. This is clearly relevant for the Sultanate of Sulu, where territorial losses prior to 1936 effectively ended the territorial sovereignty of the Sultans, but which did not necessarily end their personal sovereign rights. An appropriate analogy might be the German principalities, who lost their sovereignty in 1918, but who continue to utilise their sovereign rights to create and administer orders.”
The sources cited earlier maintain that the sovereign powers may be kept alive in exile indefinitely. Is it a condition of doing so that there must in effect be a constant protest in support of the sovereign position, such as maintaining a government-in-exile? That question has been considered on multiple occasions during the twentieth-century by the Italian courts, and they have concluded repeatedly that it is not.
As background, we should recall that the Roman Empire, and specifically the Eastern Roman Empire, was ruled at various times by emperors from dynasties that continue to have living descendants today. The Imperial crown descended potentially to any dynast; it was not restricted to the male line, and did not pass by primogeniture. It was also possible for an emperor to adopt an heir. There were no succession rules in place. A descendant in the present day is therefore not generally entitled to style himself as an emperor, for there was no de jure succession to the throne. However, as with any other monarchy, a dynast of the Imperial Families of the Byzantine Empire is certainly royal by descent and entitled to the style of prince or princess in consequence of descent from a former emperor; where they are the head of their branch of the Imperial family in question[vi], they possess dynastic rights, and specifically the fons honorum that derives from their descent. These dynastic rights have been repeatedly recognized by judgements of the Italian civil and criminal courts, which have been asked on numerous occasions to establish whether a dynast possesses the fons honorum and therefore whether an Order or title of nobility granted by him is genuine and legitimate. We will cite these judgements extensively in a later section of this work.
Related to this is the question of whether a non-reigning dynast can modify or establish succession rules, or grant a constitution, in exile. A leading example of this argument in action is in the case of the headship of the House of Savoy. Prince Vittorio Emanuele, the son of the last King of Italy, Umberto II, argues that as the Head of the House of Savoy, he can unilaterally modify the dynastic laws of succession. He declared himself King of Italy in 1969, during the lifetime of his father (who had actually reigned). In this, he referred to the Referendum of 2 June 1946 which resulted in a vote against the continuation of the monarchy and for the proclamation of a republic. Although it was open to King Umberto II to contest the result (which he disputed) by force of arms, he chose instead to accept the result and to leave the country for exile. Prince Vittorio Emanuele argued that this decision amounted to the abdication of the throne and therefore that his father had ceased to be king in 1946. In 1971, Prince Vittorio Emanuele married without the permission of his father, arguing that since he and not his father was now Head of the House of Savoy, he was not bound by the dynastic rules that affected the marriages of princes, but not kings. In 2019, Prince Vittorio Emanuele changed the dynastic succession rules from the Salic Law to adopt agnatic primogeniture.
Against this, his cousin, Prince Amedeo, Duke of Aosta, has claimed since 2006 that by these and other acts, Prince Vittorio Emanuele has lost the headship of the House of Savoy and that Prince Amedeo is now its head in his cousin’s place. Prince Amedeo now holds that the constitution governing the monarchy remains “frozen” on 12 June 1946, when Umberto II left for exile.
The strength of the argument is clearly with Prince Vittorio Emanuele, not least because as late as 2002, Prince Amedeo acknowledged him in print as Head of the House of Savoy[vii]. If it is argued that laws in force govern the monarchy, then why would we stop with the abdication of Umberto II and not accept the subsequent abolition of the monarchy altogether, leaving no throne and no succession? It is illogical to pick and choose arbitrarily among those laws that have a bearing on the monarchy. Either all apply, or none.
In fact, two things are becoming confused. One is the head of the House of Savoy as a reigning monarch, and the other is the head of the House of Savoy as a dynastic head of a former ruling house. Although these may seem to be the same, they are not. As was established previously, and which brings us back to Cox’s first point, the monarch who is on the throne has a number of rights that do not persist after dethronement. The maintenance of a government-in-exile may give the appearance of the persistence of some rights, notably the ius legationis. But where, as with the House of Savoy, no such government-in-exile is maintained and indeed the republican state is openly accepted by Prince Vittorio Emanuele, who formally abdicated his rights to the throne of Italy in 2002, it is impossible to argue that anything more than dynastic rights persist.
It should be noted that Prince Vittorio Emanuele has conferred both noble titles[viii] and the Orders of the House of Savoy. Prince Amedeo has, so far as it can be established, done neither, nor is it clear that he asserts that he has the right to do so should he wish.
Returning to our former point, can it be argued that Prince Vittorio Emanuele has kept alive his sovereign rights by means of constant protest against his family’s deposition from the throne? Hardly so – as a condition of returning to Italy, he was required to sign his formal agreement to the Republican Constitution, which effectively meant that he gave up his (and his son and heir’s) rights to the Italian throne. In the light of such an act, the former protest against Umberto II’s actions of 1946 looks rather adventitious. Even so, many authorities accept today that as Head of the House of Savoy, Prince Vittorio Emanuele retains the fons honorum and continues to bestow validly the Orders of his House and such noble titles as he may choose to confer or recognize.
A similar case is that of the former King Michael of Romania, who was forced to abdicate in 1947. In 1997, rather than accept the Salic Law and agnatic primogeniture that governed the last Romanian monarchist constitution of 1923 (and that would have led to male heirs of the Hohenzollen family succeeding him), King Michael changed the succession rules to allow his daughter to succeed, citing the European Convention on Human Rights, and in 2007 issued a new set of Fundamental Rules of the Royal House.[ix] These measures have no effect in Romanian law, since Romania is a republic without monarchical provisions. There has also to date been no attempt to challenge King Michael’s actions in law.[x]
Cox continues, “8. Any property or legal right belonging jure sanguinis (by right of blood) to any individual can be alienated, either by action of the competent legislative authority, or (to a lesser extent) by action of the possessor. It is to be very much doubted that any Order is unalienable, but that does not mean that an exiled or deposed sovereign cannot create an Order.”
We agree with this position. It is self-evident that if a sovereign is not reigning, they will be subject to the law of the country in which they live (which may limit the exercise of their powers) and that the country where they or their ancestors ruled may also legislate to restrict them (for example, abolition of the monarchy, abolition or restrictions on granting titles of nobility, exile of the former royal family). It is also clear that the head of a formerly ruling house may give up either his personal rights (by abdication) or seek to bind the house as a whole, although any action in this respect may in turn be modified or undone by his successor. The actions of Prince Vittorio Emanuele and King Michael described above may be considered in this light. Since King Michael is now dead, his daughter and heir Princess Margareta has the authority to alter or abrogate his changes to the family succession rules should she wish to do so.
Two earlier works by Cox dealing with the Order of Malta and sovereignty are also relevant to our discussion[xi]. Cox does not argue that the Order is a state, nor that its recognition as sovereign in Catholic canon law is effective outside the Church. He acknowledges that the Order discharges a number of functions proper to states, though these do not exclude the possibility that they may be performed by international organizations nor that the Order is an independent juridical personality in international law. None of these factors make the Order sovereign. Indeed, Cox’s examination of the Order by the standards of the accepted definitions of sovereignty establish that the Order cannot be deemed sovereign by virtue of meeting those definitions. In respect of its rule of Malta until 1798, the key question as to sovereignty is whether sovereignty belongs to the Order or to Malta itself. Cox says that neither of these alternatives is satisfactory.
Cox’s conclusion is startling. It is that the Order is indeed sovereign, but not in a way that meets any of the established criteria, “To have sovereignty, a state must have a permanent population, it must have a defined territory, it must have a government, and it must have the capacity to enter into diplomatic relations. No other entity could be regarded as a sovereign state, whatever its de facto Yet, this definition is increasingly meaningless.
The notions of sovereignty and statehood are not easily defined or explained. To a large degree this is because they are principally political concepts, rather than merely legal principles. With the growth in both the (horizontal) extent and (vertical) reach of international agreements, treaties, conventions and codes, national independence is becoming less relevant. This tendency is becoming more noticeable in the modern commercial environment, and especially the Internet.
As the concept of state sovereignty declines in relevance, so notions of racial sovereignty have grown. The idea that a given population group is, or ought to be, sovereign within a larger country is not confined to New Zealand. Yet, sovereign states have clung tenaciously to their rights, rights which have become more precious as they become rarer.
It was perhaps inevitable that as the traditional sovereign state lost ground, so newer types of international entities, enjoying powers and privileges recognised by the international community, should emerge. Yet it is ironic that the first of these international organisations should date, not from the twentieth century, but from the twelfth.”[xii]
Cox suggests that new definitions of sovereignty are needed to encompass the position of the Order and of other international organizations that are not states. He says, rightly, that “If the Order of Malta is sovereign, it is so only because of the recognition of international law. Such recognition is not generally accorded, but the Order is widely accepted as an international entity with unusually wide privileges.[xiii]” And yet, it is generally held that recognition cannot create sovereignty. Were it not so, the Abbey-Principality of San Luigi would have a claim to sovereignty purely based on its recognition firstly by the deposed but still sovereign King Peter II of Yugoslavia and secondly by the reigning Omukama of Bunyoro-Kitara.
Rather, our answer to this is that to understand the sovereignty of the Order of Malta it is not necessary to establish new theories of sovereignty, but merely to understand the age-old concept of ecclesiastical sovereignty as exemplified in the Holy See, which is then delegated to the Order as an effective vassal of the Holy See. If we understand this, we also understand the position of the Order before it became the temporal sovereign of Rhodes and then Malta, a period during which it was also accorded the attribute of sovereignty, which derived from its position within the Catholic Church and not from being a state. Regarding the Abbey-Principality of San Luigi, the answer is provided in two main aspects: firstly, in understanding the ecclesiastical sovereignty that is inherent in its Roman Catholic origins, and secondly in the possibility of the alienation of the complete aspects of a valid church (including the ecclesiastical fons honorum) to a body not in full communion with the Holy See under Catholic canon law, which is the position of the Abbey-Principality today.
2. THE POSITION IN THE UNITED KINGDOM
In his discussion regarding the Sultanate of Sulu, Cox states the important maxim that “if the sovereign power is silent then the former sovereign may act”. Let us consider this in the light of the position of the United Kingdom. There is not, and never has been, any law that prevents the granting of titles of nobility and Orders by foreign authorities in the United Kingdom, and several former foreign sovereigns have chosen exile in that country. Others have remained overseas while granting honours to British citizens. The question then arises as to whether those foreign titles and Orders can receive any form of official recognition in the UK. Until 1932, it was theoretically possible to apply for a Royal License to use a foreign title in the UK, however, the decisions surrounding this process seem to have been attended by little consistency or logic[xiv].
The current policy of HM Government regarding British passports is stated as follows, “By Royal Warrant of 27 April 1932, the use in England and Wales of foreign titles of nobility was discontinued, and existing warrants licensing the use of such titles were revoked – with certain named exceptions. In Scotland, a foreign title may continue to be recognised and registered by the Lord Lyon. However, [the Identity and Passport Service] maintains the right to provide a policy that is consistent throughout the UK. In consequence, at present a foreign title will not be shown on a British passport unless they hold a valid Royal warrant.
This will affect all those who may quite legitimately hold a foreign title, but which is not recognised in the UK. The personal details page of the passport will only show their forenames, family names and place and date of birth.
However, an observation indicating that ‘THE HOLDER IS ALSO KNOWN AS (foreign title)’ will be included in the passport.”[xv]
In permitting the observation, the British government does in fact accord a form of official recognition to what is, after all, the personal property of the holder, albeit that it does so in a deliberately understated manner. The author has seen several examples of foreign titles included in British passports in this way, one of which was a princely title.
In 1929, according to documents in the National Archives, a comment was made concerning grants of titles by the Popes that is instructive given the previous discussions, “Papal titles. The following list does not include such cases. Papal titles are not recognised in the United Kingdom on the ground that the Pope not being an independent Sovereign has no power to confer titles and orders. See 196,853 [ =HO 45/10622/196853; W. H. F. Garratt, 1910] , 214,306 [ = HO 45/10939/214306], 216,252 [ = HO 45/10665/216252; Edmond de la Poer and George Noble Plunkett, 1911], 243,207 [ =HO 45/10710/243207; P. B. Malone, permission to accept knighthood, refused, 1913] and 277,722 [ = ?].”[xvi]
Such a position is moot since the 1932 Royal Warrant affected all foreign titles of whatever kind (including those of the Holy See), but nevertheless suggests that the idea of the Pope as ecclesiastical sovereign or indeed sovereign of the Vatican City had not found much support in the British establishment up to that point. Nonetheless, the UK does maintain diplomatic relations with the Holy See to the present day, saying of this that “the work with the Holy See is unique, because we are not only dealing with a sovereign country (Vatican City State) but also with a global faith (the Roman Catholic Church, with 1.3bn adherents including in the UK).”[xvii]
A further example of the official view of the UK concerning foreign titles is provided by a letter from Judith Usher of the Royal, Ceremonial and Honours Unit Protocol Directorate of the Foreign and Commonwealth Office dated 21 March 2013[xviii]. The letter is addressed to a Knight of the Sacred Military Constantinian Order of St George, which is today awarded independently by two rival claimants to be the head of the House of Bourbon-Two Sicilies, which last reigned in 1861, and by the Duke of Parma[xix]. This is of particular relevance since the Order derives its authority from a Papal Bull of 1718, and the Pope appointed a Cardinal Protector for the Order until 1927. Notwithstanding this, and the fact that membership is restricted to Roman Catholics, the Order is not under patronage of the Holy See, is not awarded by the Pope, and is among the Orders included in the statement of dissociation by the Vatican Secretary of State of 16 October 2012[xx]. It is therefore not a Papal Order, but rather an Order which derives its authority from the Holy See and is now under an independent Grand Master. In this respect it has significant parallels with the San Luigi Orders.
While there is no law that governs the use and wearing of foreign Orders, there is a protocol governing these matters which does not have the force of law, but which is binding on members of the British Armed Forces, the Civil Service and others in the direct service of the Crown as one of the conditions of their service. It may be argued that this protocol is also proper to be followed by private citizens, and where, for example, they already hold a British honour, it is clearly a matter of courtesy that they should follow not only the law but the expressed wishes and preferences of the Crown in such matters. The protocol requires that in advance of receipt of any foreign honour, the putative recipient should apply for permission to accept, and in some cases permission to accept and wear, the decoration in question. Such permission may, if granted, be with specific conditions, and may be partial, that is to say permission may be granted to accept a decoration but not to wear it. If unrestricted permission to accept and wear is granted, the foreign decoration may be worn on official occasions and, where applicable, on uniform and in the presence of the Queen. The protocol applies only to “wearable” decorations, such as Orders and medals, and does not apply in regard to foreign titles of nobility.
The letter contains the following statements, “We can only seek Her Majesty the Queen’s permission for the acceptance and wearing of foreign awards conferred by a Head of State or the Government of a foreign country, so called “State honours or awards”. State honours can only be worn when The Sovereign’s permission has been given and approval for the award to be bestowed given in advance.
However, the Sacred Military Constantinian Order of St George is a Roman Catholic order of chivalry. Therefore your award is not defined as a “State Award” under the rules on the acceptance of foreign awards. This means that we cannot seek Her Majesty’s permission for your award to be accepted or worn under those rules. It does though mean that you are free to wear your award as and where you feel it appropriate to do so.”
It is important to note that the FCO in this response explicitly denies that if it is not possible to apply for permission to accept a foreign award, it cannot or should not be accepted or worn. Rather, the position is that the recipient is free to accept it and may wear it when they consider that it would be appropriate to do so. The position will by extension be the same concerning the acceptance and use of foreign titles of nobility, which carry no recognition by the Crown but equally are neither the subject of legal prohibition nor of a specific protocol.
The FCO also deftly avoids being drawn into controversy regarding the disputed Grand Mastership of the Order (or indeed discussing the separate Parmesan branch that developed independently in the nineteenth-century, or any of the various other independent claims and schisms that have attended the Order over the years). For the FCO, the Order is simply a “Roman Catholic order of chivalry”. The FCO in this conclusion may be referring to the fact that the Order derives its principal authority from the Holy See, or to the fact that the membership is restricted to Roman Catholics. What is significant here is that an Order may be deemed “Roman Catholic” even if it is not one of the Papal Orders and indeed is among the Orders that the 2012 disclaimer of the Holy See rejects. If it is Roman Catholic by founding authority and possibly also by membership (although many other Catholic-founded Orders have since ceased to be exclusive to Roman Catholics), then it is in the eyes of the British Crown a “Roman Catholic order of chivalry” regardless of whether it is a Papal Order.
If we now apply the same principles to the San Luigi Orders, we can see that by the same logic they might also be deemed by the United Kingdom “Roman Catholic orders of chivalry”, or in the case of the 1891 Order of the Crown of Thorns, an Orthodox Catholic order of chivalry.
In 2016, following controversy which had ensued upon the use of an Antiguan knighthood of high rank awarded to Anthony Bailey, OBE, the FCO, the Central Chancery of the Orders of Knighthood, and the College of Arms issued a statement published in the London Gazette[xxi]. Bailey had used the style “Sir Anthony Bailey” in keeping with the practice of Antigua, which allows holders of the knighthood bestowed on Bailey to use the style “Sir”. The statement reads as follows:
“TITLES CONNECTED WITH ORDERS, DECORATIONS AND MEDALS CONFERRED BY ANOTHER COUNTRY, INCLUDING COUNTRIES OF WHICH THE SOVEREIGN IS HEAD OF STATE, OTHER MEMBERS OF THE COMMONWEALTH AND BY ALL OTHER FOREIGN COUNTRIES Notice is hereby given that, in line with the long-established convention concerning foreign titles, British nationals who have been awarded an honour by another country may not use any associated title, that the award might bestow, in the United Kingdom.
Only those British nationals, including dual nationals, awarded a British Knighthood or appointed to a British Order of Chivalry as a Dame, may use the title ‘Sir’ or ‘Dame’ in the United Kingdom.”
The notice refers to “long-established convention”. In fact, it is not particularly long-established and has no antecedence prior to the nineteenth-century. Whatever the circumstances in which his Antiguan award was made (and it was rescinded without any published reason being given in 2017[xxii]), it is difficult to conclude that Bailey did anything wrong in using the title “Sir”. Legally, a man may call himself what he wishes provided he does not commit fraud in so doing. Convention is not law. In our view, Bailey was amply justified in following the explicitly-stated practice of Antigua, and could have defended any allegation of imposture robustly on that basis.
The notice also explicitly refers to honours awarded by a country. It therefore excludes honours awarded by Heads of Royal Houses or indeed by the Holy See (unless the awarding body was seen as the Vatican City, which seems not to be the case as far as the UK is concerned), although it is rare that their recipients seek to style themselves Sir or Dame. It remains to be seen whether defiance of the notice would have any consequence other than the displeasure of the British establishment, since no law is being broken. It could further be argued that while a person may legally change their name under English law, no legal mechanism exists whereby they may officially change their title[xxiii]. Any title that is not legally sanctioned in the UK, including that of “Sir” or “Dame” in the case of foreign knighthoods, has therefore simply been adopted informally and has no standing other than of courtesy.
The concept of courtesy has a rather direct example in the styles used by the heirs to British peerages. To generalize, the son of a peer of a rank of earl or higher is usually known by a courtesy title chosen from among the subsidiary titles held by the peer, and his son and heir apparent is likewise known by a more junior courtesy title. Thus the eldest son and heir of the Duke of Abercorn has the courtesy title of Marquess of Hamilton, and his eldest son and heir in turn has the courtesy title of Viscount Strabane. Both of these latter titles as substantive titles, however, are actually held by the Duke himself. A courtesy title lacks the prefix “the”, since “the” Marquess of Hamilton is actually the Duke of Abercorn, rather than his son and heir. Other courtesy titles include Lord or Lady for the younger children of dukes and marquesses, and The Honourable for the children of Scottish lords, barons, viscounts and the younger sons of earls[xxiv].
Moreover, courtesy titles are decided according to the custom of the family. They may be different from the actual title concerned – for example, the Duke of Wellington is also Marquess Douro, but his son and heir uses the courtesy title Marquess of Douro, and the son and heir of the Earl of Devon is known by the courtesy title Lord Courtenay although no barony of that designation exists.
These courtesy titles, however, though long-established in custom, are not actually provided for in law, and are simply a styled title or name adopted by the holder and permitted by society rather than held by legal right. In legal documents, they are designated by the phrase “commonly called”. Moreover, since a Royal Warrant of 2004, adopted children, although they may not succeed to peerages, are entitled to use courtesy titles.
It may be considered that the legal position regarding the use of foreign titles of nobility in England is akin to that of the holders of British courtesy titles, in that there is no law that governs these titles or usage, but nevertheless they are used legitimately by their holders as styled names or titles by which the holder may be commonly called. There are other British non-noble titles that are similarly unregulated and likewise function as customary styled names or titles, such as Lord or Lady of the Manor, or (in Scotland) Laird or Lady, and their associated prefixes, suffixes, and forms of address.
On 8 March 2017, further illustration of the principles at work in Britain was provided when H.M. the Queen accepted the Grand Collar of the Order of the Eagle of Georgia. This Order is awarded by Crown Prince Davit Bagration of Mukhrani of Georgia, who is one of two pretenders to the Georgian throne. As a pretender who has never reigned himself, he grants the Order in exercise of the fons honorum as the head of an ex-regnant royal dynasty (which last reigned in 1800). According to the official report of the presentation, the honour was received on behalf of the Queen at Kensington Palace by the Duke and Duchess of Gloucester, having initially been proposed and accepted in 2016[xxv].
In accepting this non-state award, the Queen broke new ground, in that she had never previously accepted an honour from an ex-regnant Royal House. Moreover, the acceptance sent clear messages to the rival pretender to Crown Prince Davit, Prince Nugzar of Georgia, and indeed to Georgia’s republican government. It should be added that in 2018, Crown Prince Davit and his brother attended the inauguration of Georgia’s first female President at one of the former royal palaces. Notwithstanding this, there is no prospect in Georgia at present for the restoration of the monarchy or the official recognition of the titles of nobility and chivalric Orders bestowed by Prince Davit.[xxvi]
Pace Guy Stair Sainty’s comments on this matter on Facebook, there is nothing accidental in the decision of the Queen. Rather it reflects a position where the Georgian Republic has indirectly indicated its acceptance of Crown Prince Davit as pretender rather than Prince Nugzar, and where the Republic has also indirectly approved the role of Crown Prince Davit in international affairs where he represents the Georgian nation. Lastly, this situation shows the acceptability of non-state awards in the United Kingdom at the highest level.
The San Luigi Orders are certainly not “State Awards” and therefore can be accepted and worn freely by British citizens according to the guidance given in the case of the Constantinian Order. Likewise, foreign titles of nobility awarded by formerly ruling houses are not governed by law or protocol in the United Kingdom and there is no law that restricts their acceptance or social use, or their granting in the United Kingdom by foreign resident or non-resident authorities. Any foreign title, be it membership of an Order of Chivalry or a title of nobility, may be recorded as an observation in a British passport.
As a final consideration, we should address the position of the sovereignty that is exercised within the United Kingdom by dynastic heads and others. We shall deal with three examples of such. The first two are of past Prince Grand Masters of the Order of Malta, Fra’ Andrew Bertie (1929-2008) and Fra’ Matthew Festing (1949-). The third is the current pretender to the Rwandan throne, H.M. Yuhi VI. The first two were born British citizens while Yuhi VI is a naturalized British citizen. All were or are permanently resident in England.
As we have seen previously, the United Kingdom does not regard the Order of Malta as a state; it does not have diplomatic relations with it and it regards the Order’s ranks of membership as religious, non-State awards. Nevertheless, the acceptance of the Order socially and the regard for its humanitarian and religious standing is high. Sir Conrad Swan, late Garter King of Arms, was also Knight of Honour and Devotion in the Order as well as being Genealogist to the British Association.
The two English Prince Grand Masters of the Order of Malta are examples of British citizens receiving an elected office that carried with it non-territorial sovereignty. The Prince Grand Master admits candidates to the chivalric honours and ranks of the Order of Malta by his own authority (see brevets).
Upon election, the Prince Grand Master becomes entitled to armigerous privileges befitting his office. He may quarter his own arms with those of the Order. Other members of the Order acquire armigerous privileges consequent upon their membership. Francois Velde summarizes these as follows, “Only the professed members (and perhaps the Knights and Chaplains of Obedience as well) are entitled to place a cross of Malta behind their arms. Knights Commanders also surround their shield with the chaplet from which hangs their insignia. Baillis quarter their arms with those of the order. Professed Chaplains surround their shield with a chaplet from which hangs their insignia. Professed knights have the full cross hanging from a black ribbon. The non-professed categories of knights have their insignia hanging from a black ribbon (with no cross behind the shield), but Knights Grand-Cross or Bailiffs within each class edge the ribbon with gold and add a chief with the arms of the Order (chef de la religion) to their coat. Ecclesiastics who are members of the Order are exempted from the prohibition on display of exterior ornaments.” [xxvii]
There is no evidence to hand that suggests that either Prince Grand Master was required or saw it as necessary to seek the permission of H.M. the Queen before accepting their sovereign office. Nor is there evidence that they sought to matriculate their new arms at the College of Arms before using them. Had this been done, it would have called into question the sovereignty that was claimed for their office, by showing that it was, in fact, dependent upon an unrelated monarchy (that of the United Kingdom) and, in matters of arms, upon a national heraldic authority (the College of Arms).
The case of H.M. Yuhi VI[xxviii] is different in that his claim in pretence is to a sovereignty that is not religious in nature. As the pretender to the throne of Rwanda, Yuhi VI has and exercises the right to grant and regulate titles of nobility originating from the Rwandan Crown, and to bestow the Rwandan Orders of Chivalry instituted by his predecessor (and any new Order that he may choose to institute). Moreover, he has inherited as foreign arms the arms of the Rwandan Crown and possesses an inherent right to grant and regulate arms with respect to the holders of Rwandan dignities[xxix]. These are sovereign rights and as such would be compromised if not extinguished if subjected to the British authorities. There is no evidence that the British authorities object to Yuhi VI exercising his rights; there is no law that forbids him from doing so, and there is no protocol in England and Wales that governs the acceptance or wearing of the Orders that he may bestow since they are not State Awards.
When an Englishman is required by election or inheritance to undertake the responsibilities that attach to non-territorial sovereignty, be that as a result of sovereignty over a non-territorial entity or sovereignty in pretence with respect to a throne occupied by hostile powers, he does so on the basis that sovereignty cannot be extinguished by any power outside the country or sovereign entity in question. The practical exercise of sovereignty can certainly be restricted by the laws of his country of residence, but if the law is silent, the sovereign may act.
[ii] Noel Cox, Letter to Patrick McCleary, 8 August 2011. Dr Cox is Legal Advisor to the Royal House of Sulu and holds the Grand Cordon of its Royal and Hashemite Order of the Pearl.
[iii] Tarcisio Card. Bertone, op. cit.
[iv] http://www.kmfap.com retrieved September 16 2020. As of this time, this Order has an embassy and is diplomatically recognized by Angola (http://kmfap.com/index.php?article_id=396) and is also diplomatically recognized inter alia by Sierra Leone (http://www.kmfap.com/index.php?article_id=289), Benin (http://www.kmfap.com/index.php?article_id=722) and Congo (http://www.kmfap.com/index.php?article_id=588).
[v] International Chivalric Institute Members’ Newsletter, Issue 30, October 2001, p. 453.
[vi] As with the succession to more modern thrones, this is a subjective matter and often beset by disputes and counter-claims. We might consider, for example, the four current claimants to the Portuguese throne – the Miguelist claimant, Dom Duarte Pio, Duke of Braganza (see http://www.casarealportuguesa.org); his cousin the Duke of Loulé, the Constitutionalist claimant (see https://suaalteza-domfilipe.casa); Dom Rosario Poidimani, who claims as adopted heir of the late Dona Maria Pia (who claimed to be the illegitimate daughter of the late Emperor Carlos I) (see https://casarealdebraganca.wixsite.com); and Dona Christina, the daughter of Dona Maria Pia, who claims to be Duchess of Braganza in her stead. URLs were accessed on September 20 2020.
[vii] Amedeo di Savoia, Proposta per l’Italia, a cura di Fabio Torriero, Edizioni Il Minotauro, 2002, p. 88.
[viii] By his second Royal Decree of 1970, Prince Vittorio Emanuele (as King Vittorio Emanuele IV) created his wife Duchess di Sant’Anna di Valdieri.
[ix] http://www.familiaregala.ro/uploads/p0002_FundamentalRules.pdf retrieved February 10 2015.
[x] See https://familiaregala.ro/familia-regala/linie-succesiune retrieved October 7 2020.
[xi] Cox, Noel, The Acquisition of Sovereignty by Quasi-States: The case of the Order of Malta (2002) 6(1&2) Mountbatten Journal of Legal Studies pp.26-47, and Cox, Noel, The Continuing Question of Sovereignty and the Sovereign Military Order of Jerusalem, of Rhodes and of Malta (2006) 13 Australian International Law Journal pp. 211-232 retrieved from https://cambrianchambers.com/general-civil-litigation-public-and-constitutional-law-ecclesiastical-law/publications/64-2/ September 23 2020.
[xii] Cox, The Acquisition of Sovereignty, op. cit., pp. 46-47.
[xiii] Cox, The Continuing Question, op.cit., p.9.
[xiv] See https://www.heraldica.org/topics/britain/TNA/HO_45_13725.htm retrieved September 21 2020. It should be noted in view of the previous observations that in some cases the Royal Licence for the use of a foreign title imposed a different limitation to that which would have applied in the host country; for example, the restriction of some Continental titles that would normally have been shared equally among male dynasts to descend according to male primogeniture. Some of the holders of Royal Licences were listed in Burke’s Peerage and Debrett’s Peerage until 1932, though these listings were never complete and it appears that some who did not hold licences were also included.
[xvi] https://www.heraldica.org/topics/britain/TNA/HO_45_13725.htm retrieved September 21 2020.
[xvii] https://www.gov.uk/world/organisations/british-embassy-holy-see retrieved September 21 2020.
[xviii] The recipient of the letter has been anonymised.
[xix] See R.A.U. Juchter van Bergen Quast, Legal opinion: the legitimacy of the Constantinian Orders (2018) published at https://freiherrvonquast.wordpress.com/2018/10/24/the-legitimacy-of-the-constantinian-orders/ retrieved September 25 2020.
[xx] https://www.orderofmalta.int/2012/10/17/clarification-of-the-secretary-of-state-of-the-holy-see-on-the-equestrian-orders/ retrieved September 23 2020, “In response to frequent requests for information concerning the recognition by the Holy See of Equestrian Orders dedicated to the saints or to holy places, the Secretariat of State considers it opportune to reiterate what has already been published, namely that, other than its own Equestrian Orders (i.e.: the Supreme Order of Christ, the Order of the Golden Spur, the Pian Order, the Order of Saint Gregory the Great, and the Order of Pope Saint Sylvester), the Holy See recognizes and supports only the Sovereign Military Order of Malta – also known as the Sovereign Military Hospitaller Order of Saint John of Jerusalem of Rhodes and of Malta – and the Equestrian Order of the Holy See Sepulchre of Jerusalem. The Holy See foresees no additions or innovations in this regard. All other orders, whether of recent origin or medieval institution, are not recognized by the Holy See. Furthermore, the Holy See does not guarantee their historical or juridical legitimacy, their ends or organizational structures. To avoid any possible doubts, even owing to illicit issuing of documents or the inappropriate use of sacred places, and to prevent the continuation of abuses which may result in harm to people of good faith, the Holy See confirms that it attributes absolutely no value whatsoever to certificates of membership or insignia issued by these groups, and it considers inappropriate the use of churches or chapels for their so-called “ceremonies of investiture”.’
[xxii] See https://www.thegazette.co.uk/London/issue/62016/page/15017 retrieved October 18 2020.
[xxiii] Several vendors on the Internet offer products which purport to give the buyer the styled title of Lord or Lady, but officially the recipient, if not a peer, will remain Mr John Smith, Lord of X (or potentially and rather confusingly, Mr Lord John Smith, where Lord is in fact a Christian name and not a title).
[xxiv] Scots law has slightly different practices regarding courtesy titles.
[xxvi] See R.A.U. Juchter van Bergen Quast The value of nobiliary titles issued by HRH Prince Davit Bagration of Mukhrani, 2020, retrieved from https://freiherrvonquast.wordpress.com/2020/07/10/the-value-of-nobiliary-titles-issued-by-hrh-prince-david-bagration-of-mukhrani/ October 21 2020.
[xxvii] See Velde, Francois, The Sovereign Military Order of Saint-John (a.k.a. Malta), retrieved from https://www.heraldica.org/topics/orders/ordmalta.htm January 3 2021.
[xxix] For details of the current protocols regarding titles and arms, see http://www.royalhouseofrwanda.org/images/guidance-for-honours-2016.pdf retrieved January 3 2021.