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To appreciate the evidence bearing on the two further propositions, it is necessary that I should give an outline of certain portions of the constitutional history of Malta and its dependencies prior to the British occupation.
The most authentic account of the constitutional history of Malta is to be found in a work published in the early part of this century, entitled, "Authentic Materials for a History of the People of Malta, by William Eton, Esq., lately resident in Malta." copy of this work is in the library of the British Museum.
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Mr. Eton was a traveller, a linguist, an antiquarian, end an authority and writer on commercial subjects; he spent several years towards the end of the last century in Turkey and the neighbouring countries, and was the author of three works, "The Survey of the Turkish Empire," which went through six editions and was translated into French, and of an account of the commerce and navigation of the Black Sea, as well as of the Baltic. He arrived at Malta in 1801, and was thereupon promptly engaged by Her Majesty's then Chief Civil Commissioner, Mr. Cameron, to examine into and to report upon the laws and constitution of Malta, as well as to assist him in the adininistration of justice and of the other affairs of the islands. He resided there on that occasion for 18 months during 1801 and 1802, and states, "that during that period " he had access to the ancient records of Malta, and every opportunity of gaining "information respecting the past and present state of the island."
He afterwards, in 1805, was harbour-master of Valetta, and he published his materials for the history of Malta in three parts, the third part in 1507.
Of this publication Mr. Charles Clark in his work on Colonial Law (1834), p. 712, writes: "Mr. Eton appears to have been strongly inclined to favour the call of the Maltese for a popular constitution. His pamphlet contains the best account of these dependencies that it has been the fortune of the author to meet with.'
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The following outline of the constitutional history of Malta, I have extracted from Mr. Eton's publication.
In 1350 the Suzerain of Malta and its dependencies was purchased by Louis, King of Naples, the entire legislative and executive powers being reserved to the islanders.
The legislative power was vested in the Consiglio Popolare, composed of members of certain noble families, of certain officials, and of members elected by the people, and, when any question came before the Council affecting the Church, of a certain number of clerical members, some of whom were elected by the parochial clergy.
From 1350 to 1530 there was a Capitano of the city, who was also President of the Council. He was selected for that office by the Suzerain, out of three persons nominated by the Council.
The executive was vested in the Capitano and certain officials elected by a sub- committee of the Council.
This Republic had the right to send embassies to foreign powers, to make war and peace, and to all the other powers of a free state. office, there was an appeal to the Suzerain for his dismissal.
If the Capitano violated his oath of
In 1405 Naples became a province of Aragon, and was united to Sicily. In 1530 the Knights of St. John of Jerusalem, having been then recently driven by the Turks from Rhodes, were settled in Malta by the Emperor Charles V., the then suzerain of the island. The Maltese protested against this, as an invasion of their constitutional rights. Their objections were partially removed on the Emperor repre- senting to them that the Knights of St. John of Jerusalem would afford them protection against the Turks, and on bis guaranteeing to them all their parliamentary and other privileges, subject to one alteration, namely, that the Grand Master of the Knights of St. John of Jerusalem for the time being should be their perpetual capitano, or president, instead of their having an annually elected capitano.
In the 18th century the Grand Masters made numerous encroachments on the constitutional rights of the Maltese: and during the middle and latter part of the century the Council was composed solely of officials nominated by the Grand Master, with the Grand Master as President.
In 1723 the Grand Master Vilhena promulgated a Civil Code, known as the Code of Vilhena.
In 1782 the Grand Master, Emmanuel de Rohan, abrogated the Code of Vilhena, and promulgated in its place a civil code of his own, drawn principally from that of Vilhena. De Rohan died in 1797, and was succeeded by Hompesch as Grand Master, and a few months after his succession, namely on the 4th of June 1798, Malta was captured by the French, under the Emperor Napoleon I., then General Bonaparte.
The Code de Rohan, with some additional laws made after its promulgation, was the civil law of Malta at the date of its capture by the French.
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Having given this short outline of the constitutional history of Malta, I have now the honour to direct your Grace's attention to facts which negative the supposition of the decrees of the Council of Trent having been accepted and promulgated in the island.
1. The latest work containing a list of the countries in which the decrees have been promulgated to which I have had access, does not mention Malta as one of them.
The work in question was published at Amsterdam in 1756 in two volumes, "Histoire de la Réception du Concile de Trente dans les différens Etats Catholique savec les pièces justificatives servants à prouver que les décrets et Réglemens ecclesiastiques ne peuvent et ne doivent être exécutés sans l'autorite des soverains.' Mignet (l'abbé Etienne) (British Museum).
2 Vol. (Anon.)
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At the date of the dissolution of the Council of Trent, 1563, Philip II. was King of Spain, as well as of Naples and Sicily. In the capacity of King of Naples he was Suzerain of Malta.
In this work it is recorded that Philip II., as King of Spain, accepted and ordered the decrees of the Council of Trent to be published and observed in the kingdom of Spain, and in the suzerainties of the kingdom of Spain, and that as King of Naples he accepted the decrees, and ordered them to be published and observed in the kingdom of Naples, "dans le Royaume de Naples.” mentioned in these orders, and as Malta was a suzerainty of Naples, the deduction is As the suzeraintics of Spain and not those of Naples are clear, that the Neapolitan order did not include Malta.
Upon the authority of this work, therefore, the decrces of the Council, up to 1756, were not recognised us having been accepted and promulgated in Malta.
2. The practice of duelling was expressly prohibited, and was condemned in the most stringent terms by the Council of Trent.
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The decree of the Council of Trnt on duelling is as follows: "Let the detestable practice of duelling, introduced by the artifice of the Devil, in order that with the cruel death of bodies he might also gain the perdition of souls, be utterly banished out of "the Christian world. The emperors, king, princes, marquises, counts, or temporal lords, by whatever title they are known, who, in their own territory, shall grants duels "between Christians, shall be excommunicated, and shall be deprived of the dominion of the place in which the duel is fought, if they hold it from the Church and combatants, and judges of combatants, shall be excommunicated, have their goods confiscated, and be perpetually infamous, and if they die in duel, they shall not be "buried in any sacred place, and those who give them counsel, either in jure or in facto, or
persuade them to duel, and the lookers on, shall be excommunicated.”
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The following incident mentioned by Mr. J. Brydone, a Fellow of the Royal Society, in a letter written by him in 1770, and dated Malta, June 7th, to his friend Alderman Beckford, of Fonthill, and published in his striking illustration of the views that the grand masters, the knights, the courts of law, "Travels in Sicily and Malta," furnishes a the priests and the people of Malta entertained of the legal force of this decree in the islands.
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"Perhaps Malta," he writes, "is the only country in the world where duelling is permitted by law. The duellists are obliged to decide their quarrel in one particular
street of the city, and if they presume to fight anywhere else they are liable to the rigour
"of the law. But what is not less singular, and much more in their favour, they are
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obliged under the most severe penalties to put up their sword, when ordered so to do, by a woman, a priest, or a knight.
"Under these limitations, in the midst of a great city, one would imagine it almost impossible that a duel coul.! ever end in blood; however, this is not the case; a cross is always painted on commemoration of his fall. We counted about 20 of these crosses.
e wall opposite to the spot where a knight has been killed, in "About three months ago, two knights had a dispute at a billiard table. One of them, after giving a great deal of abusive language, added a blow, but to the astonishment of all Malta (in whose annals there is not a similar instance), after so great a provocation he absolutely refused to fight his antagonist. The challenge was repeated, and he had time
to reflect on the consequences, but still he refused to enter the lists. He was condemned to make amende honorable' in the great church of St. John for 45 days successively, then to be confined in a dungeon without light for five years, after which he was to remain a prisoner in the castle for life. The unfortunate young man who received the blow is likewise in disgrace, as he had not an opportunity of wiping it out in the blood of his adversary.
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