Maggiorascato

MAGGIORASCATO. - I. GENERAL CONCEPT. - The m. or maggiorasco is a form of fideicommissum (v.), which came into use in the Middle Ages, principally for the hereditary transmission of fiefs.

In the re-barbarization of the civilized world, families sought to strengthen themselves, in numbers and in wealth, to make themselves fit for offense and defense and to emerge in local politics. The sense of the dignity and honor of the family prevailed over the bonds of blood themselves.

Thus were born the typical forms of the m. and of primogeniture; which forms, in practice, differed only in the sense that by the former the eldest of the family was called to succeed, by the latter the firstborn.

Jurisprudence, following the custom that had formed in the wake of the Romanistic tradition, had established the criterion that first regard was paid to the line, and subsequently to degree, sex, and age. But with the m. the 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 fideicommissum were the seniorato and the minoracato or juniorato: by the first the succession went to the oldest among the descendants of the first possessor, that is, of the first instituted heir, without regard either to line or to degree of kinship; by the second to the youngest in age.

The definition that De Molina gives of the m. is better suited 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).

In fact, it appears that the form of the m. arose in Spain and then passed into France and Italy, where nevertheless a highly elaborated juridical tradition on the matter already existed. It reached its greatest development in the 16th century, favored by the circumstances of time and place, above all by the feudal organization, which was concerned not to dismember fiefs and not to lose the dignity of the houses.

The beginnings of the institution must be sought in the primitive feudal law of the Franks, which, in succession, assigned preference to firstborns. The custom was disciplined and regulated in the 12th century with the inalienability of goods and their binding to a house. But later developments followed rather the Spanish direction, which consecrated the institution in the Cortes of Toro of 1505, and subsequently permitted even allodial goods to be erected into primogeniture, and regulated even the succession to the throne on the basis of the m. (1621). According to some, the extension is due to the influence of Socinian doctrines. It was generally a matter of immovable property, destined to support, with its revenues, a title of nobility. But it was later extended also to emphyteutic holdings and to holdings of a private and bourgeois character, and even to insignificant holdings, such as shops, industries, furniture.

In the period of its greatest development, the m. gradually assumed new modalities, multiplying into species and subspecies. Thus there were a simple m. which called the firstborn, male or female, to the succession until extinction; a m. prelative of males which excluded firstborn females from the succession and, in the absence of firstborn males, devolved to the nearest male relative; a simply male m. which excluded females even the nearest and of the line, in favor of any near male relative even if not of the line; a m. of qualified line, which called first the line of males and then, in default, that of females; a pure agnatic m. which called firstborn males from males and excluded from the right of succession both females from males and males and females from females; an agnatic m. in the first degree which called males from males to the succession, and, in default, females from females.

The will of the founder of the m., contained and expressed in the tables of foundation, prevailed in the competition between a male and a female. It was always to be adhered to, because the invested party did not inherit, but simply entered into possession of the goods that belonged to him from the first moment of the constitution of the m. The criterion of the line was followed above all in m. constituted by law, by statute, by custom, by contract. In principle, females were excluded, because the goods were to be preserved in the agnatic and not the cognatic line.

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

In Tuscany, under the signorie, the m. and primogenitures embraced three quarters of landed and immovable property. In Sicily even the revenues of the public debt were constituted into m. (1822). In Naples, while fideicommissa were abolished, customary m. were preserved according to the French law of 21 Dec. 1800 with the modifications of the decree of 19 Jan. 1812. Indeed, after the restoration of the Sanfedisti, there was a wish to preserve and increase the splendor of noble families and to draw them close around the throne, by reorganizing the m. (laws of 5 Aug. 1818 and 17 Oct. 1822) and requiring royal assent for new constitutions (laws of 11 June 1824).

The m. was extinguished by hundred-year prescription, by the renunciation of all those called, by revocation of the founder, and by confiscation. Moreover, if its duration had been fixed either by law or in the tables of foundation, it ceased with the maturing of the term or, in any case, with the passing of the 10th degree or of the fourth generation. Recourse was had in the matter to the provision of Nov. CLIX, c. 21, by which Justinian had struck at fideicommissa that exceeded the fourth generation.

If the m. prospered in the 17th-18th centuries through the favor of princes and maintained, with inalienability, noble families in splendor and wealth, drawing them close around the thrones, it nonetheless produced incalculable social harms through the stagnation of goods and through the manifest injustice toward younger sons. The reaction is already outlined in 1582 with the opposition of the States of Aosta to the extension of the m. outside the families of the Peers.

For a long time it was debated whether the m. were beneficial or harmful to the State. It is certain that the fragmentation in the succession of goods, and the squandering by some prodigal or mentally ill person, could hardly have been prevented in any other way. Card. De Luca, while considering the m. worthy « more of praise than of blame », suggested limitations and noted how doctrine and jurisprudence showed a hostile spirit, ostentatiously displaying and communicating to legislation the tendency to restrict them ever more. Voices were raised against the injustice that made one son rich at the price of the misery of the others, against the non-marketability of patrimonies and against the consequent impoverishment of the lands, which every possessor took care to exploit to the maximum, without proceeding to any improvement.

Charles Emmanuel and Victor Amadeus for the Savoy States revived the Justinian provision on the duration of fideicommissa up to the fourth generation. To this Francis III of Modena added the restriction that the maggiorascato be permitted only to nobles or university graduates. Maria Theresa for Lombardy limited fideicommissa to two degrees only. Peter Leopold in Tuscany went as far as complete abolition and the prohibition of establishing new maggiorascati 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 revive the maggiorascato, using it as a prop for the Empire (Senatus consultum of 4 Aug. 1806). The Restoration abolished it once more (law of 12 May 1835), and the Second Empire reconstituted it under another name. After 1815 maggiorascati were reconstituted in Italy, but with serious limitations.

The spirit of modern legislations could not fail to combat the maggiorascato as contrary to justice and to equality among children, and to private and public economy.

In the Kingdom of Sardinia, the Albertine Code had forbidden every fideicommissary substitution, with the exception contained in the Edict of 14 Oct. 1873, which permitted maggiorascati to distinguished families meritorious toward the State, subject to sovereign authorization and within the limits of the disposable portion, that is, saving the interests of the legitimists. Definitive and total abolition came with the law of 18 Feb. 1851, later extended to the whole Kingdom as of 1 Jan. 1866.

Almost all States likewise abolished the maggiorascato, as did Spain (laws of 11 Oct. 1820 and 30 Aug. 1836), England (law of 1833) and France (convention of 14 Oct. 1904). But the maggiorascato has not entirely disappeared in England, just as it still survived in Russia before Bolshevism.

Agostino Pugliese.