The relation between genealogical and judicial truth

At the Rootstech 2016 conference, American genealogist James Ison made an interesting remark regarding direct and indirect genealogical evidence. Ison is currently Manager of Strategy and Planning at the Family History Library, an important genealogical research facility in Salt Lake City. The library is operated by FamilySearch, the genealogical arm of The Church of Jesus Christ of Latter-day Saints. Ison earned a Master’s Degree from George Washington University. He is recognized as an authority in the field of genealogy. Ison stated:

Direct evidence is awesome. A birth certificate will list the name of parents. It’s direct evidence. It answers a question. A marriage license will say what the bride’s maiden name is. A baptismal record will say the dates and the places of birth—just exactly what we want.

(…)

Indirect evidence is like a puzzle piece. You can’t answer any particular question just based upon this piece of evidence. You have to fit it together.

In cases where only indirect evidence is available, the Genealogical Proof Standard is helpful in establishing credible research. The Standard is based on a book written by mrs Christine Rose; Genealogical Proof Standard: Building a Solid Case. It includes five essential steps for accurate research:

  1. Reasonably exhaustive research has been completed.
  2. Each statement of fact has a complete and accurate source citation.
  3. The evidence is reliable and has been skillfully correlated and interpreted.
  4. Any contradictory evidence has been resolved.
  5. The conclusion has been soundly reasoned and coherently written.
Sir Roger Charles Doughty Tichborne, original taken by Thomas Helsby in Santiago, January - February 1854

Sir Roger Charles Doughty Tichborne, original taken by Thomas Helsby in Santiago, January – February 1854

Applying the Genealogical Proof Standard does not guarantee that the truth will prevail, but it serves accountability and transparency. In my opinion genealogical proof resembles Lakatos views on the concept of truth. Lakatos’ suggested that in science, a scientific theory should be seen as a succession of slightly different theories and experimental techniques. These theories all share a common hard core, called a research programme. The question of whether a theory is true of false is replaced by the question of whether a research programme is progressive or degenerating. A progressive research programme is characterized by growth and prediction of novel facts and more precise predictions. In contrast, a degenerative program is marked by a lack of growth and does not lead to novel predictions that are later verified (Imre Lakatos, Philosophical papers. Vol I: The methodology of scientific research programmes. I. Science – Philosophy 2. Mathematics – Philosophy. I. Title 11.). Genealogical research can also contain some of these characteristics. After establishing the basic facts (often in the form of a family tree), theories regarding missing facts can be based on indirect evidence. To a certain extend, they can be characterized as a prediction for finding direct evidence (e.g. a marriage certificate). If, for example, someone has lived and worked in England for all his life, it can be predicted that he has married in England and research regarding his marriage should not start in South America. A genealogical progressive research programme elaborates on certain basic findings and develops theories (in the form of predictions) about the missing information.

In some cases, genealogical evidence is used in legal matters. Legal evidence has a totally different character, in particular when court rulings are given. In such cases a progressive research programme can hardly be determined. The case ends in a decision in a relatively short period of time.

Judicial evidence

The judicial process can be seen as a a kind of black box, within which information from all kinds of sources is processed according to defined rules of evidence in order to produce a new form of truth: the ‘judicial truth’. This type of truth becomes, to a certain extent, simply one more competing version of truth. Like other versions, it can be accepted, refuted, celebrated or simply ignored. This is illustrated in two cases where genealogical evidence was essential for establishing judicial truth. In the first case, the evidence is in particular based on witness statements, with some degree of technical evidence. In the second case, conclusive evidence is given by a DNA-test.

The Tichborne case

The Tichborne case was a well-known legal dispute in Victorian England in the 1860s and 1870s. It concerned the claims by a man called Arthur Orton, later Thomas Castro, to be the missing heir to the Tichborne baronetcy. Orton failed to convince the courts, was convicted of perjury and served a long prison sentence.

Roger Charles Tichborne was born in Paris on 5 January 1829. He was raised mainly in France, although the Tichborne lands and fortune were based in Hampshire, England, where his uncle was the 8th baronet. As a result of his upbringing, Roger spoke English with a strong French accent.  At the age of 20, Roger joined the 6th Dragoon Guards in Dublin, but sold his commission three years later in 1852. In 1853, Roger’s father inherited the Tichborne baronetcy after the deaths of his two elder brothers. In the same year, Roger, now the heir to the Tichborne title and fortune, travelled to South America. In 1854, he boarded a ship, the Bella, bound for New York, but less than a week later, the Bella was lost at sea and Roger was declared dead in 1855. The Tichborne baronetcy was passed to Roger’s younger brother Alfred in 1862 when his father died. Alfred died only four years later, just months before the birth of his son, who inherited the title at birth in 1866.

Roger’s mother, Lady Henriette Tichborne, was devastated by the news of her son’s disappearance at sea. She remained hopeful that he had survived the shipwreck and sent out inquiries across the world as to his whereabouts. In November 1865, Australian solicitor William Gibbes sent Lady Tichborne a letter, informing her that a man, claiming to be her son, had contacted him. This man was a butcher from Wagga Wagga, calling himself Tom Castro. Although he was physically larger than Sir Roger, had lighter hair and spoke no French, these discrepancies did not bother Lady Tichborne, who had not seen her lost son for more than ten years.

After Lady Tichborne’s death in 1868, Orton was compelled to continue the pretence, as he needed the Tichborne inheritance to pay off his large debts. This led some of the Tichborne family to take him to court over his claim, beginning one of the most celebrated legal cases of the nineteenth century.

The first trial lasted almost a year, from 11 May 1871 to 5 March 1872. Tichborne v. Lushington was a civil trial to establish Orton’s claim to the Tichborne inheritance. Nearly one hundred people spoke in Orton’s defence, but the holes in his story soon became obvious, particularly his inability to speak French – Sir Roger’s childhood language.

Arthur Orton’s perjury trial, Regina v. Castro, began in 1873 and lasted over six months. This time a jury had to be convinced that Orton’s claim to be the lost Sir Roger Tichborne was false. Again, the evidence against Orton was damning, and in February 1874, he was convicted of two counts of perjury and sentenced to 14 years’ hard labour by Lord Chief Justice Sir Alexander Cockburn (source: State Library New South Wales).

An important issue was the degree of facial resemblance of Orton to the Tichborne family, which fact never has been fully explained. It may suggest that there was some kind of biological relation between Orton and the Tichborne family. In the University College London Galton Papers a document can be found, stating:

2225. [stamped in left margin]University College London Galton Papers 158/2M[end stamp] [underscore]MEMORANDUM We have had submitted to us, for Examination,[end underscore] enlarged authentic [italics]Photographs;[end italics] First, of Mr. Roger Tichborne, (date, 1854): Secondly, of the person claiming to be Sir Roger Tichborne, (date, 1874). [underscore]These Portraits have Geometrically Bisected[end underscore]: and the several divided sections we have ourselves affixed, interchanged, and transferred from one Portrait to another. [underscore]We are of Opinion that the Perfect Combination[end underscore] and Minute Correspondence of the several sections are [italics]bona fide[end italics] and unimpeachable, and fully justify the conclusion that [italics]one and the same person sat for each portrait.[end italics] Fredk. Snary, Photographer, [established, 1856] 26, Castle Street, Bristol. Louis Lowenthall, Photographer, [established, 1858] 14, N. Wine Street, Bristol. John Hayward, Print-Seller, [established, 1840] 1, Corn Street, Bristol. Frederick Bowden, Print-Seller, [established, 1850] 27, U. Arcade, Bristol. H. Gardiner, Ornamental Carver, [30 years] 28, Victoria Place, Clifton. T. Sherwood, Smith, Practical Surveyor and Land Agent [40 years] 30, Corn St. Bristol. [end]

The case however was finally solved by applying classic legal rules of evidence. There was no room for developing a research programme.

The Pringle of Stichill case

The law is a living construct. It develops with society, bringing new challenges and new opportunities into the courtroom. Currently, the law is changing rapidly as a result of the ongoing evolution of digital technology. In one specific field, that of evidence gathering for genealogical purposes, the Pringle of Stichill-case should be seen as a milestone case.

On 5 January 1683 Charles II granted the Baronetcy of Stichill (“the Baronetcy”) to Robert Pringle of Stichill “and the male heirs of his body”. The eighth baronet was Sir Norman Robert Pringle, who lived from 1871 to 1919. He married Florence Vaughan, who gave birth to Norman Hamilton Pringle (“Norman Hamilton”) and subsequently to two more sons, the first of which was Ronald Steuart Pringle (“Ronald Steuart”), who died in 1968. Norman Hamilton was enrolled without opposition as the ninth baronet. When he died in 1961 his son Sir Steuart Robert Pringle (“Sir Steuart”) was enrolled without opposition as the tenth baronet. Sir Steuart died in April 2013.

The two claimants in this matter are Sir Steuart’s son, Simon Robert Pringle (“Simon”), and Norman Murray Pringle (“Murray”), son of Ronald Steuart. Following Sir Steuart’s death, both Simon and Murray registered claims to succeed to the Baronetcy. Simon’s claim is made on the basis that, as Sir Steuart’s male heir, he is entitled to be enrolled as the 11th baronet. Murray, however, claims that Norman Hamilton was not the legitimate son of the eighth baronet and that accordingly the true ninth baronet was his late father, Ronald Steuart. Murray thus claims to be the true tenth baronet.

Murray’s claim relies upon DNA evidence obtained as part of “the Pringle Surname Project”. This was founded by Murray to determine the chieftainship of the clan Pringle, and the late Sir Steuart provided his DNA for the project. Expert opinion on the totality of the DNA evidence was that it provided “very strong support” for the view that the eighth baronet is grandfather to Murray but not Sir Steuart. Simon does not dispute the DNA evidence, but he raises four arguments as to why it should not be admitted on public policy grounds. By this reference the Board is required to advise Her Majesty as to (i) who is entitled to be entered on the Official Roll of the Baronetage as the Baronet of Pringle of Stichill and (ii) whether the DNA evidence should be admitted in order to determine the first question.

The Board finds that there is no legal ground for excluding the DNA evidence, which demonstrates to a high degree of probability that Norman Hamilton was not the son of the eighth baronet. The Board therefore concludes that (i) Simon is not the great grandson of the eighth baronet and is not the heir male of the first baronet; and (ii) Murray is the grandson of the eighth baronet and is, as the heir male of the first baronet, entitled to succeed to the Baronetcy (source: The Judicial Committee of the Privy Council, Privy Council Reference No 0079 of 2015).

Conclusions

The term ‘evidence’ is widely used in many different ways and in many different contexts. Genealogical evidence is often used for claims regarding the use of titles of nobility. Even when based on so-called ‘direct’ evidence, it is not certain whether these claims are true or not true, as the Pringle case shows. The concept of truth is the core of many philosophical discussions and it is my advice to be careful when claims of nobility or genealogy are either accepted, refuted, celebrated or simply ignored. In numerous cases regarding such claims, truth is no more and no less than a personal choice, often based on the assumption that written statements in official registers correspond with biological facts (see e.g. C.W. Delforterie, Liegen tegen de dominee: drie voorbeelden van het laten dopen van buitenechtelijke kinderen als zijnde tijdens een huwelijk verkregen / door C.W. Delforterie In: Liber Amicorum Jhr. Mr. C.C. van Valkenburg / [met een ten geleide van A. Snethlage en bijdr. van W.J. Kolff … et al.]. – ‘s-Gravenhage: Centraal Bureau voor Genealogie, 1985. – P. 69-80: geneal. tab. Met lit. opg.). One thing is certain. Written statements cannot change biological/genealogical facts but such facts can change written statements.

Advice on buying manorial lordships

Introduction

A very interesting document is available on the internet, called “Manorial Lordships and Statutory Declaration. A Cautionary Description“. On the first page it reads:

The principal interest lies in the paradox he explains – that the much used Statutory Declaration proves not that a vendor owns a manorial lordship, but rather that he probably does not.

Numerous manorial lords rely on a statutory declaration for proving that their manorial title is genuine. Does this mean that most of them actually cannot prove the ownership of the manorial title?

Development

In the feudal system all legal and economic power belonged to the lord of the manor or king, who was supported economically from his land and from labour, goods, or coin from tenants under his authority.

In 1446 King Henry VI obtained parliamentary ratification of the many grants of land he had made to King's College of the Blessed Virgin Mary at Eton by a Consolidation Charter. The illumination of its opening letters, shown above, is a beautiful example of English 15th century art. In it the King kneels to offer his charter on the altar with the Cardinals, Bishops, Lords and Commons behind him.

In 1446 King Henry VI obtained parliamentary ratification of the many grants of land he had made to King’s College of the Blessed Virgin Mary at Eton by a Consolidation Charter. The illumination of its opening letters, shown above, is a beautiful example of English 15th century art. In it the King kneels to offer his charter on the altar with the Cardinals, Bishops, Lords and Commons behind him.

Feudal land tenure is the system by which land was held by tenants from their lords. Tenures were divided into free and unfree. Of the free tenures, the first was tenure in chivalry. The second form of free tenure was the spiritual tenure of bishops or monasteries. Their sole obligation was to pray for the souls of the granter and his heirs. In contrast to the free tenants, who’s services were always predetermined, the unfree tenure they were not. The unfree tenant never knew what he might be called to do for his lord. This uncertainty was later limited in a way that the tenant could not be ejected in breach of existing customs of the manor. The land was thus held according to the custom of the manor (written evidence from Dr Paul Stafford, Submission to the Justice Select Committee Inquiry into Manorial Rights). Court Rolls of the manor came to record the title of the tenants of the manor to their properties and the tenants were given a copy of the entry recording their title. A tenant who held land in this way was known as a copyholder (House of Commons Justice Committee, 2015).

The fundamental characteristic of the manorial system was economic. The peasants held land from the lord (French: seigneur) of an estate in return for fixed dues in kind, money, and services. An interesting question is that of the origin of the manorial organization; Roman or German origin. This question cannot be answered decisively because there is not sufficient evidence. Romanists state that during the decline of the Roman Empire, independent estates emerged. Germanists point to the likenesses of the manor to what can be seen as the ancient German system of landholding. It is now generally accepted that both German and Roman influences contributed to the development of the manorial system.

Manors were also judicial and administrative units with their own manorial courts, where lords were responsible for jurisprudence. Historically, landowners with significant holdings often retained ownership of any mines or minerals on the land even when it was sold on. In such cases they would own the land beneath the surface (known as ‘mines and minerals’) while another owner exercised the rights of the surface land. Landowners may also have specific rights relating to the surface of the land, for example, the rights to hunt, shoot or fish (written evidence from Christopher Jessel, author of “The Law of the Manor”, Submission to the Justice Select Committee Inquiry into Manorial Rights).

The manorial system was slowly replaced by money-based economies and other agricultural agreements. During the Tudor period many of the civil functions of the manor were removed. It led to a decline of the manorial system. Feudal tenures were formally abolished in 1660. In England, this led to the establishment of absolute property rights for big landowners, and to vociferous demands by Levellers (a political movement during the English Civil War; 1642–1651) and other radicals that copyholders — the majority of the peasantry — should receive equal security for their tenure. 

 

During the nineteenth century the holding of manor courts gradually came to an end, and in 1925 copyhold tenure formally ended in accordance with the Law of Property Acts, 1922 and 1924. Since then the holder was personally free and paid rent in lieu of services. The Manorial Documents Register was established in 1926 to record the location of documents and ensure that they could be traced if they were required for legal purposes. Some manorial courts continued to meet in the 20th century and technically courts can still meet, although they would have no real business to transact. Before the Land Registration Act 2002 it was possible for manors to be registered with HM Land Registry. Manorial incidents (the rights that a lord of the manor may exercise over other people’s land) lapsed on 12 October 2013 if they were not registered by then with HM Land Registry. Distinctive feudal remnants remain in the Isle of Man and in the Channel Islands (three distinct systems for Jersey, Guernsey and Alderney). The island of Sark was a remaining example of a feudal fief. Sark gave up being a feudal fife several years ago under EU pressure. Male primogeniture never applied to manorial or seignuer titles, as Sark has had a female Seignuer in its past. (see: Christine Alice Corcos, From Agnatic Succession to Absolute Primogeniture: The Shift to Equal Rights of Succession to Thrones and Titles in the Modern European Constitutional Monarchy, 2012 Mich. St. L. Rev. 1587, 2014).

Characteristics of Manorial Rights

Manorial rights are part of English property law (the law of acquisition, sharing and protection of valuable assets in England and Wales). As such they can be bought and sold as objects. Manorial Lordships can thus be transferred, conveyed or sold to other people. The lordship of the manor is simply the title by which the lord of the manor is known. In many cases the title may no longer have any land or rights attached to it. Because of its origin and lack of physical substance, it is known as an ‘incorporeal hereditament’. Incorporeal hereditament means ‘an interest having no physical existence’ (see: Walker vs Burton 2012, sub 47; UK Government, Practice guide 22, manors).

The brother of the late Princess Diana , Charles, Ninth Earl Spencer offered one of his many titles - that of Lord of Wimbledon - for sale at a public auction on June 26, 1996 as advertised in Financial Times on May 27, 1996:

The brother of the late Princess Diana , Charles, Ninth Earl Spencer offered one of his many titles – that of Lord of Wimbledon – for sale at a public auction on June 26, 1996 as advertised in Financial Times on May 27, 1996:

The Land Registry describes manorial rights as rights which were retained by lords of the manor when land became freehold. They can include rights to mines and some minerals, sporting rights such as hunting, shooting and fishing, and rights to hold fairs and markets. Manorial rights are “overriding rights” which may affect a property even if they had not previously been protected in the register maintained by the Land Registry.

Following the enactment of the 2002 Land Registration Act, which required manorial rights to be registered before 13 October 2013 if they were to be retained, more than 90,000 applications to enter a notice claiming manorial rights on properties in England and Wales had been made to the Land Registry prior to the deadline.

Lord of the Manor

Whoever owns the lordship of the manor is entitled to refer to themselves as lord of that manor, for example, Lord of the manor of Keswick (source: UK Government, Practice guide 22, manors). The right to use the term “Lord of the Manor of Keswick” should, in my opinion,  be seen as a legal custom right (to seek recognition that one is the owner of a specific manorial right) as it meets certain basic requirements in this respect (see e.g.: customary Law in Modern England, W. Jethro Brown, Columbia Law Review Vol. 5, No. 8 (Dec., 1905), pp. 571). The term can be seen as a synonym for ownership with a historical background. The term should not be seen as a titular dignity, but rather as a factual appellation, which – within the feudal social system – was used to describe the relationship between the Lord of the Manor in relation to his own tenants.

The vast majority of lordships belong to an individual or a trustee. A lordship might be held in a limited company, or a ‘corporation sole,’ such as the Lord Mayor and Corporation of the City of London, who are Lords of the King’s Manor, Southwark (source: Manorial Society of Great Britain, Advice on buying a manorial title).

Manorial lord and nobility

It is generally assumed that manorial titles are not titles of nobility. I tend to a more balanced view. In his book, The Constitutional History of England (Cambridge University Press, 1909 [1st Pub. 1908]), Professor F.W. Mailland notes:

Dark as is the early history of the manor, we can see that before the Conquest England is covered by what in all substantial points are manors, though the term manor is brought hither by the Normans. Furthermore, in the interests of peace and justice, the state insists that every landless man shall have a lord, who will produce him in court in case he be accused. Slowly the relation of man and lord extends itself, and everywhere it is connected with land. The king’s thanes then are coming to be the king’s military tenants in chief.

This description characterizes nobility. Shortly after the battle of Hastings in 1066, the invading Normans and their descendants replaced the Anglo-Saxons as the ruling class of England. William the Conqueror divided the land into manors which he gave to his Norman barons. The nobility of England were part of a single Norman culture and many had lands on both sides of the channel. Early Norman kings of England, as Dukes of Normandy, owed homage to the King of France for their land on the continent. The Norman barons were summoned by the king from time to time to a Royal Council where they would advise him. By the mid 13th century, these meetings would form the basis for the House of Lords (professor Marjorie Chibnall, The Normans).

Originally, only a noble could hold a manor (professor Marjorie Chibnall, The Normans).  Later, commoners could also own a manor. The current manorial lords may well be seen as a relic of the ancient Norman noble class.

Conclusions

It is essential to buy a manorial lordship from the legal owner. With Lordships, title is generally traced back 50 years or more (source: Manorial Society of Great Britain, Advice on buying a manorial title). Proof of ownership is sometimes found in family or estate documents like assents, probates, wills, mortgages and settlements. Statutory declarations (a written statement of fact that is signed in the presence of a solicitor) are another common way to prove legal ownership. In my opinion it is not correct to say that when a statutory declaration is used in combination with persuasive exhibits from secondary sources, the use of such a statutory declaration is rebutting evidence of the legal ownership of the manorial lordship. When ownership is disputed however, the presence of all deeds, correctly made up since 1189 is required. The absence of correct and complete sets of deeds requires Court approval to confirm ownership (Burton v Walker).

I therefore recommend to obtain a manorial title from a reputable company and consult a lawyer in advance.

Sources

  • Property Law Journal: 24 January 2011. Paul Stafford explains why those who hold a manorial title, or those who challenge it, must examine the foundations on which the particular title stands.
  • P. G. Vinogradoff, Villainage in England (1892, repr. 1968) and The Growth of the Manor (3d ed. 1920, repr. 1968)
  • N. S. B. Gras and E. C. Gras, The Economic and Social History of an English Village (1930, repr. 1969)
  • H. S. Bennett, Life on the English Manor (1937, repr. 1960)
  • M. Bloch, French Rural History (tr. 1966)
  • J. W. Thompson, Economic and Social History of the Middle Ages (2 vol., new ed. 1959) and Economic and Social History of Europe in the Later Middle Ages (new ed. 1960).
  • Britanica.com

Further reading

Links

Jurisprudence

  • A spectacular example of a dispute over manorial rights comes from the recent and widely reported case of Burton v Walker. There are four decisions in Burton v Walker: the preliminary issue and substantive hearings before Adjudicators to the Land Registry; an appeal to the Chancery Division and a second appeal to the Court of Appeal. The references are REF 2007/1124 (Mr Edward Cousins, 14 May 2009); REF 2007/1124 (Mr Simon Brilliant, 10 Dec 2010); [2012] EWHC 978 (Ch), [2012] All ER (D) 131 (Mr Jeremy Cousins QC); and EWCA [2013] Civ 1228 (Mummery LJ giving the only substantive judgement).
  • Baxendale v Instow Parish Council (1982) Ch 14
  • Crown Estate Commissioners v Roberts (2008) EWHC 1302. The defendant claimed ownership as Lord Marcher of St Davids of historical rights in foreshores in Pembrokeshire. The claimants sought removal of his cautions against first registration.
  • Delacherois v Delacherois (1864) 11 HLC 62
  • Corpus Christi College Oxford -v- Gloucestershire County Council CA ([1983] QB 360)
  • Doe d Clayton Bart. v Williams (1843) 11 M&W 803
  • Re Holliday (1922) 2 Ch 698
  • Merttens v Hill (1901) 1 Ch 842
  • Morris v Smith and Paget (1585) Cro. Eliz. 38
  • Rooke v Lord Kensington (1856) 2 K & J 753
  • Simpson v Attorney General (1904) AC 476

Line of succession to the former throne of Germany

Heraldic Ring of Kaiser Wilhelm II with Royal Crown, Coat of Arms of Hohenzollern and The Prussian Order of The Black Eagle

Heraldic Ring of Kaiser Wilhelm II with Royal Crown, Coat of Arms of Hohenzollern and The Prussian Order of The Black Eagle.

Introduction

The claims to the (combined) thrones of Kingdom of Prussia and the German Empire are related to the Constitution of the German Empire (Verfassung des Deutschen Reiches) of 1871.  According to this constitution, the empire was a federally organised national state of 25 German states. The office of Bundespräsidium was held by the King of Prussia, who had the title of German Emperor.

The Wikipedia article about the line of succession of the former German throne reads:

The German Empire and Kingdom of Prussia were abolished in 1918. The current head of the former ruling House of Hohenzollern is Georg Friedrich, Prince of Prussia. The Law of Succession used is Agnatic Primogeniture.

The Telegraph of 26 December 2001  reads:

THE man (Prince Georg Friedrich of Prussia) who has just won a legal victory to declare himself the head of Germany’s last ruling royal family says he is perfectly happy with life as a citizen of a republic.

Did the courts really rule in favour of Prince Georg Friedrich of Prussia as being head of Germany’s last ruling family?

German law of succession to the throne

Wilhelm of Prussia, ex-crown prince, with the participation of former emperor Wilhelm II, named his second son – Louis-Ferdinand prince of Prussia (d. 1994) – as first heir (Vorerb).  After his death his eldest son (unborn in 1938) was to be the next heir (Nacherb), or, should that son not survive Louis Ferdinand, in his stead his eldest male offspring; in the absence of male issue his eldest brother (or in his stead his sons).  The contract, however, made one exception to the rule on the succession of the next heir: any son or grandson of Louis-Ferdinand was ineligible to inherit if he were not the issue of a marriage made in accordance with the house laws of the house of Brandenburg-Prussia, or if he was in a marriage not in accordance with said laws (so called ineligibility clause).

Legal disputes

This clause led to several legal disputes.

Crown of William II, Hohenzollern Castle Collection (photo Wiki Commons)

Crown of William II, Hohenzollern Castle Collection (photo Wiki Commons)

The legal question, which was a question of civil or private law, was whether the designation was valid, and the exclusion of unequally-married or -born offspring was valid. The matter decided was not “headship of the house” but inheritance of a certain estate; indeed, the phrase “head of  house” or some equivalent has not been decided.  The issue was a contract which set up a specific rule of transmission.  The court decided that the clause which Wilhelm had created in his testament was valid, because of the right to dispose of one’s estate. If Wilhelm had decided to impose a religious requirement, or a height requirement, or to leave his estate to his his dog, the court might well have upheld it as well, because of the right to dispose of one’s estate without infringement of the personal rights of one’s offspring (see the important article of F. Velde, The Hohenzollern Succession Dispute, 1994-present).

The succession rules regarding the throne of Germany have ceased to exist when the Constitution of the German Reich (Die Verfassung des Deutschen Reiches), usually known as the Weimar Constitution (Weimarer Verfassung) came into effect. The constitution declared Germany to be a democratic parliamentary republic with a legislature elected under proportional representation and thus abolished the German empire. Therefore, the courts of the German Federal Republic have no jurisdiction regarding the headship of the House of Hohenzollern. In the mentioned cases, the courts therefore never ruled regarding the headship. The media have not quite understood the rulings.

Conclusions

Louis Ferdinand, Prince of Prussia was the third in succession to the throne of the German Empire, after his father, German Crown Prince William and elder brother Prince Wilhelm of Prussia. The monarchy was abolished in 1918. When Louis Ferdinand’s older brother Prince Wilhelm renounced his succession rights to marry a non-royal from the lesser nobility in 1933, Louis Ferdinand took his place as the second in the line of succession to the German throne after the Crown Prince. Louis Ferdinand married the Grand Duchess Kira Kirillovna of Russia in 1938. The couple had four sons and three daughter. Their sons are listed below:

1. Prince Friedrich Wilhelm of Prussia (9 February 1939 – 29 September 2015). Sons:

  • (a) Philip Kirill Prinz von Preußen (born 23 April 1968).
  • (b) Friedrich Wilhelm Ludwig Ferdinand Kirill (born 16 August 1979).
  • (c) Joachim Albrecht Bernhard Christian Ernst (born 26 June 1984).

2. Prince Michael of Prussia (22 March 1940 – 3 April 2014).

3. Prince Louis Ferdinand of Prussia (25 August 1944 – 11 July 1977). Son:

  • (a) Georg Friedrich, Prince of Prussia (born 10 June 1976 Bremen).

4. Prince Christian-Sigismund of Prussia (born 14 March 1946). Son:

  • (a) Prince Christian Ludwig Michael Friedrich Ferdinand of Prussia (born 16 May 1986).

Louis Ferdinand’s two eldest sons (1) and (2) both renounced their succession rights in order to marry commoners. His third son, and heir-apparent, Prince Louis Ferdinand died in 1977 during military manoeuvrers. It is generally accepted that his one-year-old grandson Georg Friedrich, Prince of Prussia (3a, son of Prince Louis Ferdinand) became the new heir-apparent to the Prussian and German Imperial throne. According to these lines, Georg Friedrich became the pretender to the thrones and Head of the Hohenzollern family upon Louis Ferdinand’s death in 1994.

Traditionally the Agnatic Primogeniture rules have been used to determine the succession of headship of the House of Hohenzollern. These rules do not have any legal binding since 1919. A “headship of the House of Hohenzollern” does not exist under German law. Renouncing the headship of a family or the claim to a non-existing entity (throne), therefore does not have any legal effect in Germany. The only legal fact that German law can determine is the fact that Philip Kirill Prinz von Preußen (1a) is the oldest living relative of the last German emperor. If the head of the House Hohenzollern is defined as the last living male relative according to German law, then Philip Kirill (1a) is head of the House Hohenzollern. If the head of the House Hohenzollern is defined as the man who is selected by some members of the family (holding a certain authority), then Georg Friedrich (3a) is head of the House. The choice of definition is a personal one, not a legal or historical one. Head of the House cannot mean a person who inherits or has a right of inheritance in the property of a family member following the latter’s death, since this can be anyone.

Legal Opinion: To what extend can the Hungarian title of “vitéz” be seen as a designation of nobility?

Order of Vitéz Breast Badge, bronze gilt, 57x36 mm, one side enameled, multipart construction, reverse with two clasps

Order of Vitéz Breast Badge, bronze gilt, 57×36 mm (photo: sixbid.com).

Legal Question

The Order of Vitéz, founded in 1678, revived in 1920 by Hungarian Regent Horthy, and abolished by the Soviet-imposed Communist government of Hungary in 1946, has been an important symbol of Hungary’s historic commitment to independence and territorial integrity. It is often assumed that “the Regent had no powers to grant nobility, nor did he try” (e.g Wikipedia) and that therefore the title of vitéz cannot be seen as a title of nobility. Is this assumption correct?

The Order of Vitéz

This Hungarian Order was initially founded in 1678 by Count Imre Thököly de Késmárk, (1657-1705), a Hungarian nobleman, who lead a rebellion against Leopold I of Austria. This Holy Roman Emperor suspended the Constitution and placed Hungary under a Directorate headed by the Grand Master of the Teutonic Order. Thököly gathered behind him a force of disaffected Hungarians. This group was mainly composed of disbanded soldiers and peasants. Thököly’s followers were known as kuruc (crusaders). This  designation was also given to the followers of another rebel leader, György (George) Dózsa (1470-1514).

The Order of Vitézi was re-established (Prime Ministerial Decree number 6650 of 1920, 6650/1920 M.E. in Hungarian usage, included as paragraph no 77 in the land reform act, Law XXXVI of 1920) by His Serene Highness the Regent of the Kingdom of Hungary Miklós vitéz Horthy de Nagybánya. The Hungarian state was legally a kingdom, although it had no king. The Entente powers would not have tolerated any return of the Habsburgs. Horthy’s objective was to form an organization with strong national dedication in order to contribute to the stability of Hungary after the first world war. By 1943 about 14.000 vitéz designations were issued.

The treaty signed between the Soviet Union and Hungarian Government of National Unity in Moscow on 20 January 1945, included a list of organisations that were not allowed to be re-established under Soviet rule. The National Council of Vitéz, governing the Order, was placed on this list (Prime Ministerial Edict no. 1945/529).

The current Order of Vitézi, lead by HIRH Archduke Josef Arpád of Austria, is considered by the International Commission on Orders of Chivalry as the legitimate successor of the founder (HSH Miklós v. Horthy de Nagybánya) of the Knightly Order of Vitéz.

Title of vitéz

The word ‘vitéz’ in late 19th and early 20th century Hungarian usage, meant ‘knight’, or ‘hero’. The word “vitez” literally means knight in the South Slavic languages; Bosnian, Croatian, Slovenian, Serbian and Macedonian. In German the title can be compared to “Ritter von” (Orden und Ehrenzeichen – Das Magazin für Sammler und Forscher, BDOS Jahrbuch 2003, p. 24). Therefore, the term “Vitézi Rend’ can be translated as ‘Order of Knights’. During Horthy’s reign, the title was recorded in official papers, for instance in birth, marriage or death certificates, and was usually written as ‘v.’ in front of the surname. In Hungary, the surname precedes the Christian name. In an honourable discharge document of a officer, the vitéz order is not mentioned as an award but as a title added to the name (Erik Naberhuis, The Hungarian Vitéz Order, 2005). Admission into the Order was accompanied by a land grant of 40 cadastral holds to an officer, 8 cadastral holds to other ranks based on need (1 cadastral hold = c. 1.43 acres). The honour of Vitéz was hereditary, and the grants (title, badge and land grant) were to be passed on by the recipient to his eldest son.

Hungarian law regarding noble titles

1929

The knighting ceremony pictured above took place in 1929 in Székesfehervar, at the ruins of the original church where the early kings of Hungary were crowned and buried. The new vitéz’ were knighted with a sword, especially designed for the ceremony. This sword is now on display in the Military Museum of Hungary in Budapest.

Horthy was internationally recognised as His Serene Highness the Regent of the Kingdom of Hungary (and addressed as such by e.g. the United States).  He was head of state and appointed to administer the state because the monarch was absent. There are – next to Horthy’s vitéz order – other examples of regents who founded orders, such the Royal Guelphic Order (also known as the Hanoverian Guelphic Order) by George, Prince Regent in the name of his father King George III in 1815. In France, nobility and hereditary titles were abolished by the Revolutions of 1789 and 1848, but hereditary titles were restored by decree in 1852 and have not been abolished by any subsequent law. In order to grant noble titles it is not necessary to be a royal head of state. Therefore, theoretically, the President of the Republic could, in his capacity as head of state, create titles of nobility. The same counts for Horthy’s Hungary. It is not relevant that Horthy was not a king. He was head of state of a Kingdom.

In Hungarian law, Act IV of 1947 on the abolition of certain titles and ranks has abolished all Hungarian noble ranks and titles and prohibited their future bestowal. Article 1. § (1) of the Act declares annulment of the Hungarian aristocratic and noble ranks, such as duke, marquis, earl, baron, noble, primor, and primipilus (“lófő“). Article 3. § (1) prohibits the use of rank titles mentioned in 1. §. Furthermore, it explicitly forbids the use of the “vitéz” (“valiant”) title. § (2) prohibits the use of nobiliary particles, coats of arms, insignias or the use of any expressions referring to descent from a noble clan (“de genere“). § (3) forbids the use of honorifics referring to ranks or titles abolished by this Act, such as “főméltóságú” (His/Her Serene Highness), “nagyméltóságú” (His/Her Excellency), “kegyelmes” (His/Her Grace), “méltóságos” (The Honourable), “nagyságos” (The Worshipful), “tekintetes“, “nemzetesetc.

The Act of 1947 remains in force today, although it does not contain any explicit sanctions in case the law is not observed. Act I of 2010 on the Civil Registry Procedure prohibits the registration of titles and ranks which would be contrary to Act IV of 1947 [55. § (1a)]. The 1947 Act has survived two challenges before the Hungarian Constitutional Court (HCC) in 2008 [Decision 1161/B/2008] and in 2009 [Decision 988/B/2009]. The Court has held in the 2008 decision that the prohibition of ranks and titles is intended to guarantee the equality of Hungarian citizens, as any discrimination based on hereditary titles and ranks would be contrary to the values of a democratic state and society based on equality; the Act itself is based on a firm set of values that forms an integral part of the values deductible from the Constitution [specifically Article 70/A paragraph (1) of the Constitution of Hungary at that time (Act IV of 1949)]. In the 2009 decision the HCC has found that the 1947 Act is not contrary to human dignity (the petitioner had claimed that the right to bear a name, which is deductible from human dignity, had been infringed by the Act), as nobility titles did not form official parts of a name, and that the state had the right to decide what it accepts as part of name and what it does not. The HCC has also referenced these decisions following the entry into force of the Fundamental Law of Hungary (2011, replacing the previous Constitution) in a recent decision [27/2015 (VII. 21.)] (Ágoston Mohay – Norbert Tóth, What’s in a name? Equal treatment, Union citizens and national rules on names and titles, working paper, University of Pécs, 2016, p. 9).

 

Conclusions

Members of the Vitéz Order are addressed as “nemzetes úr/asszony”, in German: “Edler (-e) Herr/Dame”. Members with non-Hungarian names used to add the nobility suffix “-y” or “-i”.  The characteristics of the vitéz capacity (hereditary, estate-related, the touch on the vitéz‘ shoulders with the sword at the bestowing of his knighthood, the title/suffix, the registration as a title instead of award in official papers and the emblem) are in full accordance with a title of nobility as we know it in for example the United Kingdom. The Act IV of 1947 also places the title on the same level as the noble titles. It is therefore not correct to say that the vitéz title is not a title of nobility. In the context of the mentioned Act, the history of the Order, its characteristics, and the recent Hungarian court decisions, the vitéz title should – from a historical perspective – be seen as a noble title. It is not recognized by the Hungarian state.

Sources

Legal opinion: Lines of succession to the former Russian Empire

Background

The Russian Imperial Romanov family (Tsar Nicholas II, his wife Tsarina Alexandra and their five young children Olga, Tatiana, Maria, Anastasia, and Alexei) were brutally murdered in Yekaterinburg on 17 July 1918. The Tsar, his family and some servants were shot, bayoneted and stabbed in a room of the “House of Special Purpose of the Ural Soviet Committee” by Bolshevik troops led by Yakov Yurovsky under the orders of the Ural Regional Soviet. Therefore, the last Tsar does not have any living descendants. There exist however, a number of claimants to the former Russian throne. In this article I will examine the legality of these claims.

Branches

St. George's Hall, Grand Kremlin Palace. President Vladimir Putin with Prince Dmitri Romanovich of Russia and his spouse at a state reception devoted to National Unity Day. (Source: Wikipedia)

St. George’s Hall, Grand Kremlin Palace. President Vladimir Putin with Prince Dmitri Romanovich of Russia and his spouse at a state reception devoted to National Unity Day. (Source: Wikipedia)

Since 1992, the Headship of the Imperial House of Russia has been claimed by two branches of the Romanov family: the Vladimirovichi Branch and the Nikolaevichi branch. The Vladimirovichi branch descends of Tsar Alexander II (1818-1881),  the successor son of Tsar Nicholas I. The Nikolaevichi branch descends from Grand Duke Nicholas Nikolaevich of Russia (1831–1891), who was the third son and sixth child of Tsar Nicholas I of Russia and Alexandra Feodorovna.

I. Tsar Nicholas I (1796-1855) x Princess Charlotte of Prussia (1798-1860). Nicholas was born in Alexander Palace, Saint Petersburg, Russian Empire, the eldest son of Emperor Alexander III and Empress Maria Feodorovna of Russia (formerly Princess Dagmar of Denmark). Emperor Alexander III was born on 10 March 1845 at the Winter Palace in Saint Petersburg and succeeded this father Emperor Alexander II of Russia. Alexander II succeed Tsar Nicolas I, son of Paul I and Sophie Dorothea of Württemberg.

Children:

II a. Tsar Alexander II (1818-1881) x Princess Marie of Hesse (1824-1880). Son: Grand Duke Vladimir Alexandrovich (1847-1909) X Duchess Marie of Mecklenburg-Schwerin (1854-1920) -> Vladimirovichi branch

II b. Grand Duke Nicholas Nikolaevich (1831-1891) x Princess Alexandra of Oldenburg (1838-1900) -> Nikolaevichi branch

Claimants

Vladimirovichi branch(es)

I. Cyril (Kirill) Vladimirovich, (Кирилл Владимирович Рома́нов), born 12 October [O.S. 30 September] 1876 – deceased 12 October 1938), Grand Duke of Russia (assumed the Headship of the Imperial Family of Russia and, as next in line to the throne in 1924).

HIH Grand Duchess Maria Vladimirovna, Pope Benedict XVI and Grand Duke George Mikhailovich (Source: Paul Gilbert).

HIH Grand Duchess Maria Vladimirovna, Pope Benedict XVI and Grand Duke George Mikhailovich (Source: Paul Gilbert).

II a. Maria Kirillovna (1907–1951), eldest daughter of Kirill Vladimirovich (I). She was born in Coburg when her parents were in exile because their marriage had not been approved by Tsar Nicholas II. The family returned to Russia prior to World War I, but was forced to flee following the Russian Revolution of 1917.

III. Emich, 7th Prince of Leiningen (1926-1991), titular Prince of Leiningen from 1946 until his death, x Eilika of Oldenburg.

IV. Prince Karl Emich of Leiningen.

II b. Vladimir Cyrillovich, (Влади́мир Кири́ллович Рома́нов) born 30 August [O.S. 17 August] 1917 – 21 April 1992), claimed the Headship of the Imperial Family from 1938 to his death, Grand Duke of Russia (1938–1992).

III. Maria Vladimirovna (Мари́я Влади́мировна Рома́нова), born 23 December 1953 in Madrid), has been a claimant to the headship of the Imperial Family since 1992 Grand Duchess of Russia (1992–present).

IV. Grand Duke George Mikhailovich of Russia

Nikolaevichi branch

I. Nicholas Romanov, Prince of Russia (1992–2014)

II. Prince Dimitri Romanovich of Russia (2014–present)

III. Prince Andrew Andreevich (born 1923)

 Applicable law

Karl Emich of Leiningen signs an address to Vladimir Putin aksing permission to assign a land in Ekaterinburg for creation of the Sovereign State Imperial See (Source: Wikipedia).

HSH Karl Emich Prince of Leiningen signs an address to Vladimir Putin aksing permission to assign a land in Ekaterinburg for creation of the Sovereign State Imperial See (Source: Wikipedia).

The Russian laws governing membership in the imperial house, succession to the throne and other dynastic subjects are contained in the Fundamental State Laws of the Russian Empire and the Statute of the Imperial Family (codification of 1906, as amended through 1911). These laws, referred to collectively as “the succession laws” in this essay, are sometimes described as “the Pauline law”, because their original version was promulgated in 1797 by Emperor Paul I.

At the present time, not one of the Emperors or Grand Dukes of Russia has left living descendants with unchallengeable rights to the Throne of Russia. When marrying a foreigner of Equal Rank, or member of a Reigning Family, family members were obliged to renounce their and their issue’s rights to the succession to the Throne of Russia.

Since 1917 the Russian Empire and its laws regarding social classes ceased to exist (Central Executive Committee and the Council of People’s Commissars, Decree on the Abolition of Social Estates and Civil Ranks, 10 November  1917):

  1. All classes and class divisions of citizens, class privileges and disabilities, class organizations and institutions which have until now existed in Russia, as well as all civil ranks, are abolished.
  2. All designations (as merchant, nobleman, burgher, peasant, etc.), titles (as Prince, Count, etc.), and distinctions of civil ranks (Privy, State, and other Councilors), are abolished, and one common designation is established for all the population of Russia-citizen of the Russian Republic.
  3. The properties of the noblemen’s class institutions are hereby transferred to corresponding Zemstvo self-governing bodies.
  4. The properties of merchants’ and burghers’ associations are hereby placed at the disposal of corresponding municipal bodies.
  5. All class institutions, transactions, and archives are hereby transferred to the jurisdiction of corresponding municipal and Zemstvo bodies.
  6. All corresponding clauses of the laws which have existed until now are abolished.
  7. This decree becomes effective from the day of its publication, and is to be immediately put into effect, by the local Soviets of Workmen’s, Soldiers’, and Peasants’ Deputies.

Conclusions

In addition to the abolishment of the public laws regarding social classes, none of the current Romanov family members has unchallengeable rights to the Throne of Russia according to the Pauline Laws. Therefore the headship of the House of Romanov remains a political matter that cannot be determined from a legal perspective. The only authority that can restore the rights to the Russian throne is the Russian Federation. In my opinion, the imperial nobility and the titles it awarded may theoretically remain valid but for the Russian Federation they are quasi foreign.

Sources

Links