The Austrian title of de Fournier.
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; SuppementalReport 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 atqueposteris 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 ultimafoemina 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 atquecreamus.
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.