Questions on the title of Count Fournier.
Ruvigny, an eminent early 20th century authority on nobility, appears dissatisfied in his entry on the title of Conte Fournier.
The title of “Count of Pausier” or “Graf von Pausier” was created in Germany on the 29 January 1770 in favour of Giorgio Fournier by Empress Maria Teresa with remainder to his descendants of the male sex in the order of primogeniture.
He notes that this comital title was registered as a foreign title in Malta. In fact he classified this title as one of the ‘foreign titles incorporated in the Maltese Peerage’.
Ruvigny notes that the 2nd Conte was Lazzaro who died s(sine) p(prole) (m) maschio when the male issue of the grantee became extinct. But Ruvigny observes that the title was allowed to Lazzaro Sant, as son and heir of Count Baldassare Sant by Aloysia, only daughter and heir of the 2nd Count.
“It is difficult”, he writes, “to understand why this title was recognized, for unlike that of Count Sant, which was granted the same year, it is expressly limited to the heirs male of the grantee.”
It is the succession in favour of a descendant in the female line, not the recognition that Ruvigny appears to be objecting. He added a further note:
“However, the then Secretary of State wrote 30 April 1878: ‘In this case, if the patent had issued in Malta or in Sicily, I gather that 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 into question in a Court of Law, I feel that I may reasonably permit the claimant and his successors, for the purposes 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.’”
So, is the title of Count Fournier extinct? Was it perpetuated by a British Secretary of State?
Ruvigny appears to have missed the main position of the Secretary of State. The main position was 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 in each case is necessary; and even assuming that 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 form having the slightest effect.”
In the case of the title of the title of Conte Fournier, succession of that title was never allowed, or denied, in favour of a descendant in the female line of the grantee (the claimant Lazzaro Sant Fournier) by the Royal Commissioners in either their original or supplemental report which preceded the ruling of the Secretary of State.
All that the British Secretary of State did was to allow mere precedence to Lazzaro Sant Fournier allowing him to take the place to which he would be entitled under the principles of legal interpretation applicable to the grant as if it had emanated in 1770 from the Sicilian or Maltese Sovereign authority.
The Secretary of State appears to have known full-well the limitations of his authority and cannot be accused of meddling with the succession of the title. He could not have perpetuated the title.
The question whether the title became extinct upon the death of the 2nd Conte s.p.m., remains unanswered. Arguably, Ruvigny would have opined that extinction occurred when the male issue of the grantee became extinct. However, one cannot help noting that at the time of writing Ruvigny himself noted that the title was held by a 5th holder, albeit in the female line.
It appears – although it doesn’t result from Ruvigny’s commentary – that the title must have been renewed at some point in time. Most certainly this was not done by the British Secretary of State.
There is the ‘fall back’ argument of prescriptive title, whereby a person could claim a right by reason of uninterrupted possession over a prolonged period of time. In Malta this rule may apply with the lapse of 30 or 40 years. However, if that argument would be invoked it could no longer be said that the title originated in 1770 but at later time (probably 30/40 years after 1878, which is the year when the Secretary of State gave his ruling).