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Footnote: The title of “Conte” conferred by Empress Maria Teresa on the Maltese Citizen, Salvatore Baldassare Sant did not originate in Malta but in Lombardy, Italy which at the time of the grant formed part of the Austrian Empire. 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 Sant” 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 Sant, it appears at first that enjoyment thereof is subject to the holding of a particular property in Lombardy. However, upon closer reading, it transpires that this is not the case as this condition is not peremptorily laid down in the patent. 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. 216-217).
The actual report says the following:
“Gio Francesco Sant ‘Barone di Ghariescem and Tabia’ claims likewise the title of Conte in virtue of the patent granted, on the 22nd December 1770, by the said Empress Maria Theresa, to Salvatore Baldassare Sant, of which the operative clause has already been given. That patent having been fully registered, and the said claimant being the first-born son of the Conte Luigi Maria, eldest son of the Conte Gio Francesco, who was the eldest son of the first titled person, we have no hesitation in declaring that the claimant has satisfactorily shown an indisputable right to the title above mentioned. We must not, however, omit mentioning that in the preamble of the said grant the following expressions occur: “Et quoniam in Longobaria nostra les obtinet, quae Comitis titulum, congrua eidem feudi posessione jubet fulciri, aequi bonique facimus, te prompto nobis obsecundandi studio ad laborare, ut feudum clientelie vinculo obstrictum, inditione nostra, primo quovis tempore adquiras.” We are not aware that the fief referred to in this part of the patent was acquired by the claimant’s ancestors, but as this condition is not peremptorily laid down in the patent, we do not think that its non-performance invalidates the grant.
Published sources show the title of “Conte” conferred Empress Maria Teresa on Salvatore Baldassare Sant, a Maltese Citizen, as being inheritable by males only. This is incorrect because the grant allows succession in the female line. This conclusion does not result from that part of the Report which describes the Sant title, but from that part of the same report (the supplemental report AND the final decision of the British Secretary of State) which describes the title of “Conte Fournier de Pausier”. The following is a full extract of the part relative to the title of Conte Fournier de Pausier: 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, Supplemental Report Part III; Letter of Hicks-Beach at pages 59-60).
This title (Title of Conte granted by Empress Marie Theresa to Giorgio Fournier de Pausier), 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, who died without any son to whom the title might descend, but leaving only one daughter, Luigia Sant, the present claimant’s mother.
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 regarding the title of Conte Fournier, which by clear implication in the above cited report has some bearing on the title of Conte Sant was therefore referred back to the British Secretary of State for the Colonies. The Secretary of State for the Colonies then wrote to Governor Straubanzee to ask the Commissioners to address this issue.
In their Supplemental Report, the Commissioners again failed to arrive at a conclusion (on the title of Conte Fournier de Pausier). The supplemental report reads as follows:
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 (in the first report this word reads ‘et’ and not ‘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 regarding the title of Conte Fournier de Pausier 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 view of the above, particularly that in the case of Conte Sant specific provision is made for succession in the son of the surviving female descendant should succeed to the title, whilst in the case of Conte Fournier de Pausier succession was allowed even though the relative remainder does not allow it, it must necessarily be implied that the title may be succeeded by a male descending in the female line from the original grantee. Such male must however append the surname Sant to his real family name. It is also irrelevant, for the purposes of this particular title, whether or not Sant acquired the designated property in Lombardy.