The Maltese title of Buleben.
Footnote: The title of “Barone di Buleben” is purely nominal and does not have any property attached to it. In their general observations, the Royal Commissioners observed that most of the titles granted by the Grandmasters were merely honorary and had no relevance on property tenure ‘although it appears that those titles (granted by the Grand Masters) have derived their different denominations from several feudal lands existing in these islands, this annexation, however, is in most cases purely nominal, for those lands were never in reality conveyed to the grantees, but they remained as they are still Government Property.’ The Commissioners also identified the only three exceptions to this purely nominal phenomenon, where tenure of property was a prerequisite namely Bahria, delle Catene, and Senia, the last being a divisible property. 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. 82).
Published sources show the title of “Barone di Buleben” as being granted in perpetuity. This is manifestly unfounded because the Royal Commissioners found that the original grant was only one made “ad personam”. It is noteworthy that the original grantee (fully aware of the limited grant) later applied for an extension: This was a limited success because it was only extended to one of the grantee’s sons. (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. 41-57).
The actual report says the following:
On the 23rd July 1777, the same Grand Master Rohan granted by patent the title of baron of the feud “ta Buleben” to the nobleman Gaetano Azzopardi, in the following terms: - "Tibinobili Cajetano Azzopardi tribuimus, concedimus et donamus hujusmodi titulo insignimus ac Baronem dicti feudi 'ta Buleben" constituimus, et ita nominari posse et debere atque uti, fruiac gaudere omnibus et singulis..."
The foregoing patent differs from those the Commissioners have hitherto considered, inasmuch as it only designates the person ennobled, without providing for the descent of the title to his heirs and successors, and without specifically settling the course by which the dignity was to be conveyed to such heirs and successors.
The Barone Gaetano after having obtained that patent presented a petition (in Italian) to the Grand Master, representing that "Whereas in the deed of grant of the title of 'Barone diBuleben' most benignly made to him, your Most Serene Highness had been pleased to order that on that occurrence the diploma should be issued from the cancelleria in favour of himself alone....And whereas in his family there existed a primogenitura erected in favoursuch among his children as he would name, and in default of nomination, in favour of his eldest son, and descendible to the first born males by the law of primogeniture (diprimogenito in altro) until the total extinction of his male line, with power to each holder of it to name his successor; and wheareas the income of that Primogenitura was more than sufficient for the decent suport of its possessor, he (petitioner) begged that the grant of the title of 'Barone di Buleben' should be extended to such of his sons and male descendents as might for the time being be the holder of the Primogenitura". On this application the Grand Master endorsed the following rescript: "Magister Hospitalis Hyerusalem Gratiam petitamOratori concedimus pro ejus filio successore in Primogenitura de qua in precibus, tantum. Datum in Palatio, die 25 Aprilis 1778".
The first born son of Gaetano, Calcedonio Azopardi, senior, after his father's death presented a petition to the Grand Master, requesting the investiture of the baronial title, submitting that the title had been granted to such of the grantee's sons as might be in possession of the Primogenitura, and producing an extract from an instrument from which it appeared that he had been named by his father to succeed to that Primogenitura. On this petition a decree was made on the 5th July 1788, and the formula of the oath for the investiture had already been partly drawn up, but it was afterwards, together with the petition, the decree, and the document, therein inserted, cancelled, as appears from the original records in the Cancelleria. The investiture was subsequently given to Barone Calcedonio, as may be seen from another authentic document in the Government Archives, bearing date the 10th August 1788; it begins thus: - 'Notum sit quod cum alias titulum Baronis feudi de Buleben, sub die 28 mensisJulii 1777, nobilis Cajetano Azzopardi pro ejus persona tantum concesserimus, quodquepariter, vigore nostri Magistralis Rescripti sub die 25 Aprilis 1778, editi, titulum hujusmodietiam ad ejus filium Primogenituram habentem ampliaverimus, prout in hujusmodiconcessionis diplomate et Rescripto, ad quae habeatur ratio plenius continetur....."
We must remark that, in this document, there are some corrections, and for the word filios, in the plural number, the word filium in the singular appears to have been substituted. On examining the said document, we observed that the corrections in it are in the same handwriting as the original, and we have no ground for suspecting that the abrasions in the original incomplete formula, and the corrections in the one subsequently drawn up, were made after the above-mentioned investiture had taken place.
Of Barone Calcedonio, Dr. Vincenzo was born, who left, on his death, CalceconioAzzopardi, junior, who now claims the title, contending that it is inheritable by the grantee’s lineal successors in perpetuum.
He has produced two memorandums in support of his claim containing several feudal doctrines and quotations from celebrated feudists.
But before applying to the present case certain rules of feudal law, it is necessary that all the facts that bear on the subject should be carefully considered, in order to ascertain what was the intention of the sovereign grantor of the title; it is also necessary to compare with each other the several diplomas granted by the same sovereign, in the same or in different words, and lastly to inquire in what way those grants have been constantly construed.
The reasons alleged by the claimant to prove the perpetuity of the title may be summed up as follows:
1st. that the original diploma of 1777 did not confer upon Gaetano a merely personal title, but a perpetual dignity inheritable by his successors for ever, notwithstanding that the grant does not designate such successors, because no restrictive clause is added thereto, and because feudal grants are, of their own nature, perpetual;
2ndly that the rescript of 1778 did not extend the title to persons not included in the patent, but it only explained and construed the grant;
3rdly that the word filio employed in that rescript is to be taken to comprehend likewise the grandchildren, great grandchildren, and other descendents of the grantee in infinitum, according to the provisions of the Roman law;
4thly that the rescript was intended to include the immediate son of Gaetano, who would be named by his father to the succession of the primogenitura, without excluding the other descendents, who would succeed as first-born children jure proprio...
All these arguments rest on the hypothesis that the patent of 1777 contained a perpetual grant, and that it is not likely that by the subsequent rescript of 1778 it should have been restricted and limited.
On this point we must observe that the numerous grants of titles made by Grand Master Rohan may be classed under three different heads; some patents expressly providing for the perpetuity of the title specifically include the children and descendents in infinitum of the person first ennobled; such are the titles we have hitherto considered, and others which will be hereinafter inquired into. Other grants, like that the Commissioners presently considered, only designated the grantees' names without proceeding further. The patents of the MarcheseBarbaro (#58), of the Conte Gatt (#62), of the Marchese Mallia Tabone (#67), and that which conferred on the 23rd October 1783, the title (now extinct) of Barone to Signor Mompalao, fall under this class. Other diplomas, lastly, besides the designation of the titled person exclusively, contain a restrictive clause; such as that granted to Conte Romualdo Barbaro, on the 14th January 1793, and worded thus: "Tibi Magnifico ac Nobili Romualdo Barbarotantum", that conferred upon Marchese Saverio Marchesi on the 8th March 1793, in the following terms:-"Tibi Magnifico ac Nobili Saverio Marchesi tantum", and the other given to Barone Francesco Gauci, on the 23rd December 1781, and which runs thus:-"Tibi tantum, tuanaturali vita perdurante."
The grants of the second and third description, differently from those of the first, provide only for the investiture of the person therein mentioned, but do not proceed further to direct that the said investiture should be obtained by all the successors on any future vacancy, as laid down in the patents of the first class. Hence it follows, that from this point of view we see no difference between the patents granted with or without any restrictive clause, and comprised in the second and third classes, all such patents having been issued in the same terms and under the same conditions. It is moreover to be remarked in regard to the patents of the second class containing no restrictive clauses, that the grantees have often applied for and obtained, by special favour of the sovereign the extension and amplification of the title in perpetuum, or in favour of thier children or of their descendents generally. Thus the Marchese Barbaro had requested and obtained that the title should be extended to at least his first born son, who subsequently applied for and obtained a further extension for all his descendents in perpetuum (#59, 60). The Marchese Mallia Tabone had likewise prayed that his title should be made to extend after his death to his male descendents successively, and in default of male issue to his female descendents, and had obtained form the Grand Master an extension in favour of his first born male descendents only (#68).
Now, the extension of the above-mentioned titles would not certainly have been applied for and obtained if the patents granted by the sovereign in terms similar to those used in the diploma of Baron Azzopardi comprised the heirs and descendents of the grantee. In regard to the grants of the second description, we must further remark that the petitioners did not request that it should be provided that the succession to the title should be regulated in a manner different from the course established by the feudal laws, but on the contrary, they prayed that the grant should not be determined by their death, and that it should be made to extend to their descendents, and in some cases that it should at least continue during the lifetime of their own first born child.
In the grant made to Barone Azzopardi another circumstance is worthy of notice. The same Barone Gaetano, in the petition he presented, before a year had elapsed since the grant was made to him declared that the title which had been conferred upon him was personal to himself, and he applied for its extension, ampliazione, a word which, in the language of the local bulls, is equivalent to extension of the title to persons not included in the grant. When subsequently in 1788 his son Calcedonio applied for the investiture, the same sovereign made the following authentic declaration, viz. that the title had been at first personal to the grantee (pro ejus tantum) and that it was afterwards extended etiam ad ejus filiumprimogenituram habentem.
The declaration has the effect of thoroughly removing the doubt arising from the circumstance that, in the original patent of the Barone Azzopardi, no restrictive clause, similar to that found in other diplomas, is to be found. That clause was evidently superfluous, for in the intention of the sovereign grantor, as well as in that of the grantee, the patents of the second and third description, whether they did or did not contain a restrictive clause, were looked upon as exclusively personal to the grantee.
The above-stated circumstances appear not to have been but summarily disposed of, in the memorandums produced by the claimant, and we are of the opinion that the general principles of feudal law, on which Calcedonio Azzopardi grounds his claim, are for the aforesaid reasons inapplicable to the present case, and the authorities which have been quoted, according to which titles of nobility like feuds are descendible to heirs and successors, even when no mention of such descent is made in the patent of creation, are absolutely irrelevant. It is therefore clear that the rescript of 1778 was intended to extend, and not to explain and construe the grant of 1777.
Although from the terms of the grant it may appear that the title of Barone conferred upon Gaetano Azzopardi is annexed to the feud of Buleben, yet in reality it is a merely honorary title, for the dominium utile of the feud was not transferred to the person ennobled, but the feud remained, as it was and is still, the property of the Government.
Barone Gaetano in order to induce the Grand Master to extend the grant made to him, personally, had represented not only that in his family there existed a perpetual primogenitura with powers to each of the holders of it to name his successors, but that “the annual income of that primogeniture was amply sufficient for the decent support of the holder of it, even if he did not possess any other property”. The Barone Gaetanoconsequently applied to the sovereign for the extension of the title to such among his sons and descendents as should possess in future the primogenitura. The sovereign in his rescript, on this application, did not employ the usual words juxta preces , or fiat prout petitur , as he did in the two rescripts by which the title granted to Marchese Barbaro was extended, but he issued his rescript with the limitative tantum . From the aforesaid facts we infer that the petitioner’s request was only in part acceded to.
Now, if we hold that the grant was extended to all the first-born descendents of BaroneGaetano, or to his successors in the primogeniture in perpetuum , as the claimant contends, and as Barone Gaetano had requested, the limitative expression tantum would have no meaning.
The very clear terms of the said rescript of 1778, by which the title was extended to the son (filio) of the same applicant Gaetano (ejus) who should succeed in the Primogenitura fully establish the limitation of the original grant. In that rescript, in fact, no mention is made of the grantee’s descendents, who together with his children, are specifically indicated in the petition; nor is there the expression children (in the plural), so as to include all first born descendents successively, as in the rescript, by which the extension of the title, conferred by the same Grand Master Rohan, upon Marchese Mallia Tabone, was granted in the following terms: Fiat pro primogenitis maribus tantum (#68); but the personal pronoun ejus is made of, to designate more clearly and more precisely the immediate son of the petitioner.
In fact, although according to the doctrine laid down by some civilians, the term children (liberi seu filii) is a general expression comprehending all the descendents of a person in infinitum , this rule is subject to many limitations, which have been expounded by the commentators of Roman legislation. The word filii is taken to indicate only the immediate children of a person (filii prini gradus), when ex proprietate sermonis, grandchildren and other descendents are not to be therein included (Leg. Quid si nepotes, 6 D de test. Tutela##ult. In Just. qui test. Tutores dari possunt). One of these exceptions is when the word filii is restrictively employed, as when it is accompanied with the expressions, ejus, sui, mei, which point out exclusively the immediate children of a person (Menochius Consil. 328, No. 14, 15, 16), or when that word is used in the singular number (loc. Cit. n. 20). In the rescript of 1778 this double limitation is found, a circumstance which evidently excludes the extension presumed by the claimant.
The claimant lastly contends that the diploma and the rescript must be extensively construed; for although it is a legal maxim, “Privilegia sunt stricte interpretanda”, the privileges, however, granted by a sovereign authority, and which do not act to the prejudice of third parties, are susceptible of a wide and liberal interpretation. Although this is admitted by the common opinion of civilians, yet that principle holds good with regard to those privileges which are granted by the sovereign’s mere motion (moto proprio) and not at the request of the party concerned (Jasonii Comment. Quoted by Altograd. Consilia Con. 71, No. 9, 10, 11, and by many other legal writers). Now as a general rule, patents of nobility in Malta were granted by the Grand Masters at the request of the grantee, and it was moreover upon an application by Barone Azzopardi that the rescript of 1778 was issued. It is likewise a settled opinion that, when the patent of creation does not contain the expression motu proprio, the grant is taken to have been made at the request of the party concerned.
The foregoing observations being premised, we feel bound to state that, after careful consideration, we are of the opinion that the title of “Barone di Buleben”, was by the deed of grant, limited to Gaetano Azzopardi, and was afterward, by rescript, extended to his son Calcedonio, senior, and that it could not be borne by Dr. Vincenzo Azzopardi, grandson of the grantee, nor can it be enjoyed by his great grandson Calcedonio Azzopardi, junior. The claimant having, therefore, failed to establish his right, his name will not be included in our list.
We must, however, state for the information of his Excellency, the Governor, that the claimant has produced various documents, and has referred to others in a memorandum bearing date the 11th August 1877, which has been laid before the Commission and will be appended to the present Report, together with the other two memorandums which were referred to in the foregoing paragraphs. The object of the production of these documents is that of showing that Dr. Vincenzo Azzopardi, the claimant’s father, was in several official letters and Government notices issued under the British Government, appointing his to some public office, styled Barone. These different notices are dated respectively the 4th June 1814, the 20th November 1821, the 21st October 1828, the 31st December 1832, the 21st June 1837, the 18th March 1850, the 1st January 1852, and the 4th November 1852. In the diploma of the University attesting that the degree of Doctor of Laws was conferred upon the said Dr. Vincenzo, on the 11th May 1819, he was named “Barone”, and this title was also prefixed to his Christian name, when his appointment as Cavaliere of the Most Distinguished Order of St. Michael and St. George was announced in 1842.
We refrain from expressing any opinion on the importance and effect of these acts of presumed recognition, under the British Government, and from determining the question whether those acts could have revived and perpetuated a title that was already extinct when the British Government took possession of these islands (The Barone Calcedonio Azzopardideparted this life on the 20th February 1799). His Lordship, the Secretary of State may certainly form a more correct opinion on this subject, but we cannot omit remarking that no careful enquiry into the origin, nature, and extent of the titles of Maltese nobility having been instituted before the present occasion, those persons who were entrusted with some public office, or on whom some order of knighthood was conferred, were designated by the prefix by which they were commonly called. Now, a recognition made causa non cognita is destitute of any legal efficacy.
On this last point the British Secretary of State commented as follows:
With reference to the question which the Commissioners have very properly raised in their original report (par. 57 and others), viz. whether acts of presumed recognition under the British Government, such as the issue of a passport from the Foreign Office to a gentleman, in which he is styled baron, or count, or marquis, or the mention of a similar title in a Despatch from a Secretary of State, or in a Government notice or other official document emanating from the Governor of the Colony, may be taken to have revived or perpetuated a title which has become extinct, or was otherwise without legal support, I feel able to give no other answer than that all such acts are altogether valueless for that purpose, and cannot be taken to have conferred, revived, perpetuated or confirmed any dignity which did not already rest upon an independent legal basis. It is only necessary to point out to you that no public officer, not even a Secretary of State, has the power of conferring titles of honour, for which the personal sanction of Her Majesty is each case is necessary; and even assuming such acts to have been done by British officials with full knowledge that the titles were non-existent, their want of power would prevent these acts of supposed recognition from having the slightest effect. (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 dated 30 April 1878 from the Secretary of State for the Colonies Hicks-Beach to Governor van Straubanzee (Report page 59-60)).
Undeterred, the claimant Calcedonio Azzopardi, junior pursued his claim to the title which was granted to his great-grand-father. Calcedonio also published a pamphlet dated 1883 entitled “Carteggio sul titolo di casa Azopardi” where he set out various reasons why his claim should be accepted. In the same year, 1883, a Committee of five Titolati (namely Ciantar, Apap Bologna, De Piro, Manduca and Delicata) recommended to the British Secretary of State for the Colonies as follows “Baron Vincenzo died in 1857, after a personal, peaceful possession of nearly 60 year. Calcedonio Azopardi, the junior, succeeded to the paternal rights, in whose person both titles of ‘primogenitor’ and that of possessor of the ‘Primogenitura’ are united; he peacefully held the dignity of Barone diBuleben for the long period of more than 20 years, until unfortunately the Executive Government, without any solid reason, and not in pursuance of a legal action brought before by people that had an interest to sustain the determination of the title of Barone di Buleben, gave him to understand that this title had been for a long time extinct, and what is more remarkable and strange, that it had determined before Baron Vincenzo his father had succeeded to this dignity. Owing to the abovestated reasons it is hoped that the decision, emanated not under the authority of a court of justice, nor delivered on the suit of persons legally interested in the matter, be over-ruled, that ample justice may be done o Baron Calcedonio Azopardi the junior, his sons and descendants by authorizing them, through the grace and favour of the Crown, to hold the said title of Barone di Buleben as it was held previously and possessed by the ‘Primogeniti’ Azopardi possessors of the ‘Primogenitura’ and the memorialist Baron Calcedonio to have his name duly entered in the official list of Titolati.”
This recommendation was accepted by the Secretary of State for the Colonies “without prejudice to any decision of a competent court of law”. See:- “Report of the Committee of Privileges of the Maltese Nobility on the claims of certain members of that body with the Secretary of State’s Reply, August 1883, presented to both Houses of Parliament by Command of Her Majesty (C-3812). (See Doc. 1. “Report” Paras. 2-32; and Doc. 2 “Reply”).
It remains debatable “purely on the basis of the latter recommendation” whether this title can lawfully be inherited through the female line, and/or whether the title can be held by a female. In any event, it is clear that no one can validly claim this title solely on the basis of the grant of 1777 as extended in 1788.