MAGGIORASCATO. - I. GENERAL CONCEPT
The m., or maggiorasco, is a form of entail (v.), which came into use in the Middle Ages, chiefly for the hereditary transmission of fiefs.
As the civilized world became barbarized, families sought to strengthen themselves in numbers and wealth, to make themselves capable of offense and defense, and to emerge in local politics. The sense of family dignity and honor prevailed even over the bonds of blood.
Thus arose the characteristic forms of the m. and primogeniture; in practice, these forms differed only in that under the former the eldest of the family was called to succeed, while under the latter it was the firstborn.
Jurisprudence, following the custom formed in the wake of the Romanist tradition, had established the principle that regard was first given to the line, and subsequently to degree, sex, and age. But under the m. succession passed to whoever, without regard to line, was the nearest relative of the last possessor, and, among relatives of the same degree, to the eldest. Other forms of entail were seniority and minoracy or juniorate: under the former succession passed to the oldest among the descendants of the first possessor, that is, of the original grantee, without regard either to line or to degree of relationship; under the latter, to the youngest in age.
The definition of the m. given by De Molina applies rather to primogeniture: « ius succedendi in bonis ea lege relictis, ut in familia integra perpetuo conserventur, proximoque cuique primogenito ordine successivo deferantur ». Covarruias accepts this definition, explaining the term maioratus as vax fori Hispanici maioris primogeniorum ius (I. III, Variar. resol., I. III, cap. 5).
II. ORIGIN AND DEVELOPMENT OF THE M
In fact, it appears that the form of the m. arose in Spain and then passed into France and Italy, where, however, a highly developed legal tradition concerning it already existed. It reached its greatest development in the 16th century, favored by circumstances of time and place, above all by the feudal organization, which sought not to divide up the fiefs and not to lose the dignity of the houses.
The beginnings of the institution are to be sought in the primitive feudal law of the Franks, which assigned preference to firstborn sons in succession. The custom was disciplined and regulated in the 12th century through the inalienability of property and its attachment to a lineage. Later developments, however, followed the Spanish direction, which consecrated the institution in the Cortes of Toro of 1505 and subsequently permitted the same allodial property to be erected into primogeniture, and even regulated succession to the throne on the basis of the m. (1621). According to some, its extension was due to the influence of the Socinian doctrines. Generally speaking, the property consisted of real estate, intended to support, through its revenues, a title of nobility. But it was later extended also to emphyteutic and private, bourgeois holdings, and even to insignificant possessions, such as shops, industrial enterprises, and movable property.
III. TYPES OF M
During the period of its greatest development, the m. gradually assumed new forms, multiplying into species and subspecies. Thus there was a simple m., which called the firstborn, male or female, to succession until extinction; a male-preferential m., which excluded firstborn females from succession and, in the absence of firstborn males, devolved upon the nearest male relative; a simply male m., which excluded females, even those more closely related and of the same line, in favor of any nearest male relative, even one outside the line; a m. of qualified line, which first called the male line to succession and, failing it, the female line; a pure agnatic m., which called male firstborn descended from males and excluded from the right of succession both females descended from males and males and females descended from females; and an agnatic m. in the first degree, which called males descended from males to succession and, failing them, females descended from females.
The will of the founder of the m., contained and expressed in the founding instruments, prevailed in cases of competition between a male and a female. It was always necessary to adhere to it, because the beneficiary did not inherit but simply entered into possession of the property to which he was entitled from the very moment the m. was established. The criterion of the line was followed above all in m. established by law, statute, custom, or contract. As a matter of principle, females were excluded, because the property had to be preserved in the agnatic and not the cognatic line.
In Italy, alongside the various types listed, the regular and irregular m. developed independently of foreign influences: the former called the nearest relative in the legitimate succession to succession; the latter called the firstborn, even when he was not the nearest relative.
In Tuscany, under the signorie, m. and primogenitures encompassed three quarters of landed and real-estate property. In Sicily, even revenues from the public debt were constituted as m. (1822). In Naples, while entails were abolished, customary m. were preserved under the French law of 21 Dec. 1800, with the amendments of the decree of 19 Jan. 1812. Indeed, after the restoration by the Sanfedisti, there was an attempt to preserve and increase the splendor of the noble families and bind them around the throne by reorganizing the m. (laws of 5 Aug. 1818 and 17 Oct. 1822) and requiring royal assent for new establishments (law of 11 June 1824).
The m. was extinguished by centennial prescription, by the renunciation of all those called to succession, by revocation by the founder, and by confiscation. Moreover, if its duration had been fixed either by law or in the founding instruments, it ended upon the expiration of the term or, in any event, upon the passing of the 10th degree or the fourth generation. In this matter, reference was made to the provision of Nov. CLIX, c. 21, by which Justinian had restricted entails extending beyond the fourth generation.
IV. LEGISLATION AGAINST M
Although the m. flourished in the 17th and 18th centuries through the favor of princes and, by means of inalienability, preserved noble families in splendor and wealth, binding them around the thrones, it nevertheless produced incalculable social harms through the stagnation of property and the evident injustice toward younger sons. The reaction began to take shape as early as 1582, with the opposition of the States of Aosta to the extension of m. beyond the families of the Peers.
For a long time it was debated whether m. were beneficial or harmful to the State. It is certain that it would have been difficult to prevent in any other way the fragmentation of property through succession and the squandering of the assets of some spendthrift or mentally ill person. Cardinal De Luca, while considering m. worthy « più di lode che di biasimo », recommended limitations and observed that doctrine and jurisprudence demonstrated a hostile attitude, openly displaying and imparting to legislation the tendency to restrict them ever further. Voices were raised against the injustice that made one son rich at the price of the others’ misery, against the inalienability of estates, and against the consequent impoverishment of the lands, which each possessor sought to exploit to the maximum, without undertaking any improvement.
Carlo Emanuele and Vittorio Amedeo, for the Savoy States, restored the Justinian provision concerning the duration of fideicommissa until the fourth generation. Francesco III of Modena added to it the restriction that the m. should be permitted only to nobles or graduates. Maria Teresa, for Lombardy, limited fideicommissa to only two degrees. Pier Leopoldo in Tuscany went so far as to abolish them completely and prohibit the establishment of new m. and primogenitures (1782, 1789). Almost simultaneously, the French Revolution also swept away every kind of fideicommissum (law of 14 Nov. 1792). But Napoleon intended to resurrect the m., using it as a support for the Empire (Senatoconsult of 4 Aug. 1806). The Restoration abolished it once again (law of 12 May 1835), and the Second Empire re-established it under another name. After 1815, the m. were re-established in Italy, but with serious limitations.
The spirit of modern legislation could not fail to combat the m. as contrary to justice and equality among children, and to private and public economic interests.
In the Kingdom of Sardinia, the Albertine Code had prohibited every fideicommissary substitution, with the exception contained in the Edict of 14 Oct. 1873, which permitted m. for distinguished families that had rendered eminent services to the State, subject to sovereign authorization and within the limits of available assets, that is, without prejudice to the interests of the forced heirs. Definitive and complete abolition came with the law of 18 Feb. 1851, subsequently extended to the entire Kingdom as of 1 Jan. 1866.
Almost all States likewise abolished the m., such as Spain (laws of 11 Oct. 1820 and 30 Aug. 1836), England (law of 1833), and France (Convention of 14 Oct. 1904). But the m. has not entirely disappeared in England, just as it still survived in Russia before Bolshevism.