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Footnote: The title of “Conte” conferred
by by the same Empress Maria Theresa, by a patent
given at Vienna on the 29th January 1770 on the Maltese Citizen, Giorgio
Fournier de Pausier did not originate in Malta but in
the Kingdom and Provinces of Germany. At Maltese Law it is only a foreign title
and, as such, it can be considered for the purposes of precedence if
registration or Magistral recognition has been
achieved. in accordance with the rules of 1739 and
1795 as enacted by Grand Masters Despuig and Rohan.
In this case, the grant relative to “Conte
Fournier de Pausier” appears to have been duly
registered in the Cancelleria of the Order.
VALUE OF REGISTRATION/MAGISTRAL RECOGNITION
From the records of the Cancelleria it
appeared that the titles so granted were registered in virtue of a rescript
from the Grand Master, on an application by the party concerned. The Royal
Commissioners of 1878 remarked that they were prone to believe that the Grand
Master would not have given his assent to registration without any
investigation. From the start, however, the Commissioners pointed out that the Despuig/Rohan Rules on the matter did not deny nobility to
a Titolato who failed to duly register
his title, but only assigned him no place insofar as precedence was concerned.
See:- “Correspondence
and Report of the Commission appointed to enquire into the claims and grievances
of the Maltese Nobility”, May 1878, presented to both Houses of
Parliament by Command of Her Majesty (C.-2033.) (See Report Paras.
101-102). It is also noteworthy that the Commissioners did not consider all the
titles which were registered in the Cancelleria:
For example the title of Conte granted to Baldassare
Fenech Bonnici on the 11
June 1798 by Pope Benedict XIV, which was duly registered under Archives of the
Order of Malta (554, f. 176) as well as the Archives of the Inquisition of
Malta (102m f. 32) was not considered by the Report. It appears that no
descendant of this grantee made any claim to the Commissioners.
In regard to the title of “Conte”
granted to Fournier de Pausier, an issue arose
whether this title is transmissible to a male descendant in the female line
according to the rule of primogeniture. At the time of the Royal Commission
(1878), this title was claimed by Lazzaro Sant who claimed this title through his mother Luigia, granddaughter of the original grantee. The
Commissioners did not pronounce themselves on the matter both in the Original
Report and the Supplemental Report. The issue was eventually settled by the
British Secretary of State for the Colonies. (See:- “Correspondence and Report of the Commission
appointed to enquire into the claims and grievances of the Maltese Nobility”,
May 1878, presented to both Houses of Parliament by Command of Her Majesty
(C.-2033.) (See Report Paras. 209-215; Suppemental Report Part III; Letter of Hicks-Beach at pages
59-60 of Report). ).
The actual report says the following:
“This title,
which is likewise claimed by the said Lazzaro Sant, was conferred upon the said Giorgio Fournier de Pausier by the same Empress Maria Theresa, by a patent
given at Vienna on the 29th January 1770, which is registered in the Cancelleria, and in the High Court of the Castellania. The grant was made to the said
Giorgio Fournier de Pausier, with succession to his
children and descendants of the male sex, whether born or to be born from
lawful wedlock, according to the order of primogeniture. The following is the
operative clause of the patent of creation:- Teque una cum filiis
tuis atque posteris virilis
sexus, ex legitimo thoro natis atque nascituris,
in infinitum, primogeniali ordine
servato, Comitem ac Comites
Regnorum et Provinciarum nostrarum, facimus, nominamus atque creamus.”
The foregoing expressions are substantially
similar to those contained in another patent which will hereafter be
considered, and by which the title of Conte was by the same Empress conferred
upon Salvatore Baldassare Sant,
in the said year 1770. The patent granted to the Conte S. Baldassare
Sant runs thus: -Teque
una cumflio tuo
primogenitor Joanni Francisco Salvatori,
et ab hoc, eodem nascendi ordine, descendentibus virilis sexus ex legitimo thoro natis atque nascituris,
in infinitum, Comitem ac Comites nostrarum
in Italia Provinciarum facimus,
nominamus, atque creamus.
This patent, which is dated the 22nd December
1770, contained the following provision, which is not found in that of the 29th
January 1770: “Addentes hanc gratiam speccialem,
ut si aliquando stirpem masculinam familiae tuae extingui contingat,
Comitis titulus et dignitas
ad Primogenitum ex ultima foemina generic tui superstite natum vel nasciturum, qui gentis tuae cognomen assumit ejusque posteros modo antedicto, servatoque simper ordine primogeniali transeat.
The foregoing clause in the patent of the 22nd
December is preceded by the following recital: - Quod cum ita sint, non difficiles aures praebuimus precibus tuis, Nobilis dilecte Nobis Don Balthassar Salvator de Sant, Nobilis Melitensis quibus licet ordine, in numerum Comitum nostrarum in Italia Provinciarum postulas referri, illisque deficientibus, Comitis titulum ad Primogenitum ex ultima foemina superstite nasciturum, hujusque posteris extendi.”
Giorgio Fournier, the person first ennobled,
left Lazzaro Sant (n.b. should read “Fournier”), who died
without any son to whom the title might descend, but leaving only one daughter,
Luigia Sant, the present
claimant’s mother.
The Commissioners therefore concluded their
Report as follows:
Not being called upon to settle the claims of Lazzaro Sant, we have thought it
our duty to submit the above two extracts from the patents of the 29th January
1770 and the 29th December 1770 (n.b. should read
22nd December 1770) for the consideration of Her Majesty’s Secretary of State, to
whom the decision must be left as to whether Lazzaro Sant, who descends from the grantee’s grand-daughter,
is entitled to the enjoyment of the dignity conferred upon the male descendants
of Giorgio Fournier de Pausier, under the rule of
primogeniture.
This question
having been reserved to the British Secretary of State for the Colonies, the
Commissioners did not include the claimant’s name in the list. The
Secretary of State for the Colonies then wrote to Governor Straubanzee
to ask the Commissioners to address this issue.
However, in their
Supplemental Report, the Commissioners remained reluctant to decide the issue:
The title of Conte was, as already adverted to
in our former Report (#205) (n.b. should read “#209”
because #205 refers to the title of Barone),
bestowed on Giorgio Fournier de Pausier, by Empress
Maria Theresa, by a charter issued on the 29th January 1770. The granting
clause of the imperial charter runs thus:- Teque una cum filiis
tuis atque posteris virilis
sexus, ex legitimo thoro natis atque nascituris,
in infinitum, primogeniali ordine
servato, Comitem ac (n.b. In original report, this reads “et”
instead of “ac”) Comites Regnorum
et Provinciarum nostrarum, facimus, nominamus atque creamus.
The first titled person Giorgio Fournier had no
male issue, but left one daughter, Luigia wife of Baldassare Sant, of whom Lazzaro Sant, the present
claimant, is the first-born son. The question which arises out of his claim, is whether he may, under the charter issued by the
Empress of Germany, enjoy a title granted to the grantee’s descendants of
the male sex, according to the order of primogeniture.
If this title had been created by a local
sovereign, the question would present but little difficulty. It has already
been observed that, looking to the principles of law prevalent in these
islands, the sons of daughters are called to the succession to lands, and
consequently to a title granted to the male descendants of a person without
limitation. But in the present case, the claim must be considered under the
German Feudal Law in force at the time of the issuing of the patent of this
title.
Diligent as our researches have been we did not
succeed in ascertaining what were the legal effects of a grant issued in
Austria towards the close of the last century and limited to the male descendants
of a person. With our inadequate information we do not feel justified in
expressing any opinion on this point. We must not, however, omit to remark that
in the same year in which the present title was granted, the said Empress Maria
Theresa issued another charter conferring on Salvatore Baldassare
Sant the title of Conte. The operative clause of the
latter charter, as may be seen on reference to #211 of our former Report,
appears to be (with some exceptions noticed hereafter) equipollent to that
contained in the patent of Giorgio Fournier. In the patent of the Conte Sant, however, the following clause occurs: -
Addentes hanc gratiam specialem ut si aliquando stirpem masculinam familiae tuae extingui contingant,
comitis titulis ed dignitas ad primogenitum ex ultima foemina generis tui superstite natum vel nasciturum, qui gentis tuae cognomen assumit, ejusque posteros modo antedicto, servatoque simper ordine primogeniali, transeat.
That clause proving that on the failure of the
grantee’s male line, the son of the surviving female descendant should
succeed to the title, is not to be found in the
diploma issued in favour of Giorgio Fournier. It may, consequently, be that the
will and intendment of the grantor was to limit the succession to the title
originally conferred on Giorgio Fournier to his male descendants belonging to
his male line.
The two said patents, however, differ in some
respects. That of Giorgio Fournier grants the title of Conte in the Kingdom and
Provinces of Germany; and the other of Salvatore Baldassare
Sant confers a similar title in the Italian Provinces
annexed to the German Empire. In the latter grant, a condition is attached by
which the grantee is required to purchase a fief in Lombardy, a condition which
does not appear in the patent granted to Giorgio Fournier.
We are unable to determine whether such
differences can legally have any influence respecting the succession of the
sons of female descendants to the title under consideration; we are, therefore,
of opinion that the present claim may be more satisfactorily settled by a
reference to more competent persons fully acquainted with the laws and statutes
in force in the German Empire and its Italian dependencies, in or about the
year 1770. Consequently we think ourselves justified in refraining from
expressing an opinion as regards the claim of the said Lazzaro
Sant to the abovementioned title.
The British Secretary of State for the Colonies
settled the issue as follows: See:- “Correspondence
and Report of the Commission appointed to enquire into the claims and grievances
of the Maltese Nobility”, May 1878, presented to both Houses of
Parliament by Command of Her Majesty (C.-2033.) (See Letter of
Hicks-Beach at pages 59-60).
The third question is as to the claim preferred
by Lazzaro Sant Fournier to
the title of “Conte” granted by Empress Maria Theresa to Giorgio
Fournier de Pausier upon the 29th of January 1770
(par. 209-214; supplemental report, par. 14-21). In this case, if the patent
had issued in Malta or in Sicily, I gather than the claim would have been
allowed under the rules of feudal law recognized in those States, and therefore
without offering any opinion as to the strict legal effect which would be given
to the patent at Vienna, and without prejudice to any future legal decision
upon its meaning, should it ever be called in question in a court of law, I
feel that I may reasonably permit the claimant and his successors, for the
purpose of precedence, to take the place to which they would be entitled under
the principles of legal interpretation applicable to the grant if it had
emanated in 1770 from the Sicilian or Maltese Sovereign authority.
In this way, the
title has been deemed transmissible according to the rules of primogeniture.