MAGGIORASCATO - Enciclopedia Cattolica, Vol. VII, p. 1083

Machine translation of the 1948–1954 Italian original. The original text is authoritative.

**MAJORAT**

I. General Concept

The *majorascato* or *majorasco* is a form of entail (v.), which came into use in the Middle Ages, primarily for the hereditary transmission of fiefs.

In the barbarization of the civilized world, families sought to strengthen themselves in number and wealth, to make themselves capable of offense and defense, and to emerge in local politics. The sense of family dignity and honor prevailed over even blood ties.

Thus arose the typical forms of the *majorascato* and of primogeniture; these forms differed in practice only in that the former called the eldest of the family to succeed, while the latter called the firstborn.

Jurisprudence, following the custom shaped by Roman tradition, had established the criterion that first regard should be paid to the line, and subsequently to degree, sex, and age. But with the *majorascato*, succession passed to the nearest relative of the last possessor, regardless of line, and among relatives of the same degree, to the eldest. Other forms of entail were the *minorascato* or *juniorato*: in the former, succession went to the eldest among the descendants of the first possessor, i.e., the first instituted, without regard to line or degree of kinship; in the latter, to the youngest by age.

The definition given of the *majorascato* by De Molina fits rather with primogeniture: «ius succedendi in bonis ea lege relictis, ut in familia integra perpetuo conservetur, proximoque cuique primogenito ordine successivo deferantur». Corvarius accepts this definition, explaining the term *maioratus* as *vox fori Hispanici maiora primogenitorum ius* (I. III, Variar. resol., I. III, cap. 5).

II. Origin and Evolution of the Majorat

In fact, it seems that the form of the *majorascato* arose in Spain and then passed into France and Italy, where, however, a highly developed legal tradition on the matter already existed. It reached its peak in the 16th century, favored by the circumstances of time and place, especially by the feudal organization, which aimed to prevent the subdivision of fiefs and the loss of family prestige.

The origins of the institution are to be sought in the primitive feudal law of the Franks, which in succession gave preference to the firstborn. The custom was regulated in the 12th century with the inalienability of goods and their binding to a family line. But later developments followed rather the Spanish direction, which consecrated the institution in the Cortes of Toro of 1505, and subsequently allowed even allodial goods to be erected into primogenitures, regulating even the succession to the throne on the basis of the *majorascato* (1621). According to some, this extension is due to the influence of Socinian doctrines. Generally, it concerned immovable property, intended to support, with its revenues, a noble title. But it was later extended even to emphyteutic and private bourgeois possessions, and even to insignificant properties, such as shops, industries, and movables.

III. Types of Majorat

In the period of its greatest development, the *majorascato* gradually assumed new modalities, multiplying into species and subspecies. There thus arose a simple *majorascato* that called the firstborn, male or female, to succession until extinction; a male-preferential *majorascato* that excluded firstborn females from succession and, in their absence, devolved to the nearest male relative; a simply male *majorascato* that excluded even the nearest female relatives, in favor of any male relative, even outside the line; a *majorascato* of qualified line, which called first the line of males and then, failing that, that of females; a pure agnatic *majorascato* that called firstborn males from males and excluded from the right of succession both females from males and males and females from females; an agnatic *majorascato* in the first degree that called males from males to succession, and failing them, females from females.

The will of the founder of the *majorascato*, contained and expressed in the founding charter, prevailed in the concurrence between a male and a female. One was always bound to adhere to it, because the invested heir did not inherit but simply entered into possession of the goods that pertained to him from the very moment of the establishment of the *majorascato*. The criterion of the line was followed especially in *majorascati* established by law, statute, custom, or contract. In principle, females were excluded, because the goods were to be preserved in the agnatic line and not in the cognatic.

In Italy, alongside the various species enumerated, there developed, independently of foreign influences, the regular and irregular *majorascato*: the former called to succession the nearest relative in legitimate succession; the latter called the firstborn even when he was not the *proximior*.

In Tuscany, under the lordships, *majorascati* and primogenitures embraced three-quarters of landed and immovable property. In Sicily, even the revenues of public debt were constituted into *majorascati* (1822). In Naples, while entails were abolished, customary *majorascati* were preserved according to the French law of 21 December 1809 with the modifications of the decree of 19 January 1812. Indeed, after the restoration of the Sanfedists, it was desired to preserve and increase the splendor of noble families and to bind them to the throne by reorganizing the *majorascati* (laws of 5 August 1818 and 17 October 1822) and requiring royal assent for new establishments (laws of 11 June 1824).

The *majorascato* was extinguished by a hundred-year prescription, by the renunciation of all those called, by revocation of the founder, and by confiscation. Moreover, if its duration was fixed either by law or in the founding charter, it ceased upon the expiration of the term or, in any case, upon the passing of the tenth degree of the fourth generation. Reference was made in this matter to the provision of Nov. CLIX, c. 21, by which Justinian had struck at entails that exceeded the fourth generation.

IV. Legislation Opposed to Majorats

While the *majorascato* flourished in the 17th–18th centuries due to the favor of princes and preserved noble families in splendor and wealth by means of inalienability, binding them to thrones, it nonetheless produced incalculable social damage through the stagnation of goods and the manifest injustice toward younger sons. Opposition to it emerged as early as 1582, when the States of Aosta opposed the extension of *majorascati* beyond the families of the Peers.

For a long time it was debated whether *majorascati* were beneficial or harmful to the state. Certainly, there was no other way to prevent the fragmentation of property in succession and the dissipation by prodigal or mentally ill heirs. Cardinal De Luca, while considering *majorascati* «more worthy of praise than blame», suggested limitations and noted how doctrine and jurisprudence demonstrated an adverse spirit, openly and consistently restricting them ever further. Voices were raised against the injustice that made one son rich at the expense of the poverty of the others, against the inalienability of patrimonies and the consequent impoverishment of lands, which every possessor sought to exploit to the utmost without undertaking any improvement.

Carlo Emanuele and Vittorio Amedeo reintroduced the Justinian provision on the duration of fideicommissa lasting up to the fourth generation for the States of Savoy. To this, Francesco III of Modena added the restriction that the fideicommissum could only be permitted for nobles or graduates. Maria Theresa limited fideicommissa in Lombardy to only two degrees. Peter Leopold in Tuscany went so far as to abolish them completely and prohibit the creation of new fideicommissa and primogenitures (1782, 1789). Almost simultaneously, the French Revolution swept away all kinds of fideicommissa (law of 14 Nov. 1792). But Napoleon intended to revive the fideicommissum, using it as a support for the Empire (Senatus Consultum of 4 Aug. 1806). The Restoration once again abolished it (law of 12 May 1835), and the Second Empire reconstituted it under another name. After 1815, fideicommissa were reconstituted in Italy, but with severe limitations.

The spirit of modern legislation could not but combat the fideicommissum as contrary to justice and equality among children, and to private and public economy.

In the Kingdom of Sardinia, the Alberato Code had forbidden any fideicommissary substitution, with the exception contained in the Edict of 14 Oct. 1873, which allowed fideicommissa for distinguished families meritorious of the State, subject to sovereign authorization and within the limits of availability, that is, without prejudice to the interests of legitimary heirs. The definitive and total abolition came with the law of 18 Feb. 1851, later extended to the entire Kingdom from 10 Jan. 1866.

Almost all States have likewise abolished the fideicommissum, 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 fideicommissum has not entirely disappeared in England, and it survived in Russia until the advent of Bolshevism.

BIBL.: L. de Molina, De primogenitorum Hispanorum origine et natura, Colonia 1888; D. de Covarrubias, Variarum ex potenti-regio et caesareo iure resolutionum libri 4, Lyon 1594; L. de maioratibus, Hanover 1612; L. Pfaff and F. Hofmann, Fideicommissae, Vienna 1884; T. Cuturi, Dei fedelcommesi e delle sostituzioni nel diritto civile italiano, Città di Castello 1889; C. Ferrini, Teoria generale dei legati e dei fideicomessi, Milan 1889; F. Brückner, Studien über die Geschichte der Fideicommissae, Munich 1893; B. Brugli, Il fedelcommeso, in Digesto Ital., XI, 1; N. Tamassia, La famiglia italiana, Padua 1905; R. Trifone, Fendi e demani. Evoluzione delle feudalità nelle provincie napoletane, Milan 1909; id., Il fedelcommeso. Storia dell’istituto in Italia dal diritto romano all’inizio del sec. XVI, Rome 1914; A. Verga, Comunioni familiari, Parma 1930.