I PUBLIC RECORD OFFICE
Reference -
TTIC.O.
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PUBLIC RECORD OFFICE, LONDON
ALLY WITHOUT PERMISSION OF THE BE REPRODUCED PHOTOGRAPHIC- COPYRIGHT PHOTOGRAPH-NOT TO
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registration for marriage purposes of places of worship in which marriages have already been celebrated with the restriction which you mention
(2.) That it is not necessary to insist on a certificate that every such place of worship is frequented by 20 householders.
(3.) That the essential conditions of marriage, including the rules of affinity and consanguinity, should be those in force in England.
(4.) I have the honour, Sir, also to agree with the opinion which I find expressed by you in the 6th paragraph of Sir F. Rogers' letter, that the necessary books and forms may be supplied by the Government.
I now approach the consideration of the principal objections which have been raised to this very necessary and useful measure. They range themselves under two heads: First, objections arising from the customs and habits of the Tamil, Kandyan, or Mohammedan population; secondly, those arising from the claims and pretensions of the Church of Rome.
With respect to the former class of objections, it is impossible not to be much impressed with the arguments and the statements put forward by the Government Agent for the Northern Provinces of Ceylon, and it is to be observed (for the observation disposes of the complaint of Dr. Grant that the feelings of the Pagans are more respected than those of the Christians as to the rite of marriage) that those arguments and state- ments are founded not so much upon religious scruples strictly so called, as upon the well-known difference between the European and the Asiatic races, as to the treatment and status of females, which is so deeply rooted in the latter race, as to render any forcible or legislative attempt to assimilate their habits in this matter probably im- possible, and certainly most inexpedient.
I have the honour therefore, Sir, to express my general agreement with the opinion which you have formed on this point, to the effect that the marriage of this class of Her Majesty's subjects should be governed by their own peculiar rites and customs. At the same time, I think that there is no reason why it should not be obligatory upon the father, or the head of the Kandyan bride or bridegroom's family, and upon the bridegroom, to register the fact of the marriage having taken place, the names of the parties, &c. at the nearest place of registration, within a reasonable period, or why such registration should not be made the best evidence of the marriage.
With respect to the latter class of objections, namely, those urged by the Church of Rome, I must observe, in the first place, that the principle which is, in fact, the basis of all these objections, is founded upon those extravagant pretensions which from time to time this Church, and especially of late years in countries without the verge of Europe, has been in the habit of putting forth, and which are irreconcileable with any civil legislation whatever by the State upon the most important contract into which its subjects can enter. It is only necessary to refer to the legislation of France, which regards all marriages as civil contracts, and compels them to be entered into before a civil officer, in order to show how little weight has been attached by one of the greatest European States, in which the Church of Rome is established, to the character and principle of the objections put forward by the Roman Church in Ceylon. The question is certainly, as stated by Sir F. Rogers, "not only one of law but of policy," but so far as it enters into my province to express an opinion upon this point, I must humbly express my regret that I am unable to concur with the opinion which is expressed in clauses 1 and 2 of the 4th paragraph of Sir F. Rogers' letter, namely, that it would be expedient to allow the Roman priest, and him only, to marry a person supposed to be dying, under certain conditions and restrictions.
If the permission is to be granted at all, these conditions and restrictions would certainly be necessary, and appear to be very proper, but I cannot, after much conside- ration, see any valid reason why such a permission should be conceded at all to the Roman Church.
It has not been found necessary in France or in England; and, having regard to the notorious largeness of the claim of the Roman Church as to who are the persons belonging to her communion, and the great facility with which Asiatics are nominally admitted, or said to be members of it, the permission once given might be so worked as seriously to impair the principle upon which the Bill is founded.
It seems to me, moreover, that it would be obviously unfair to confine this permission to the Roman Church, and to refuse it to the Church of England, which has made for the sake of harmony and for the purpose of assisting the Government in passing this measure, such ready concessions of her privileges in Ceylon, and has acted throughout
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in so conciliatory a manner, and whose claims to catholicity, and to profound reverence for the sanctity of the marriage vow, though less arrogantly put forward, are not less firmly maintained than those of the Church of Rome.
I confess that after a careful perusal of Dr. Grant's letter, I am entirely at a loss to understand why any one of the arguments contained in it for making such a conces- sion to the Church of Rome do not equally apply to the Church of England, and indeed
to any Protestant church.
It is another consideration, to which it would only be proper in me slightly to advert, whether such a concession would not endanger the passing of the Bill in Ceylon, which the state of that Colony appears so greatly to require.
With respect to the suggestion No. 3 in paragraph 4, namely, that "the registrar or "other authority might have the power in particular cases, of licensing marriages in unregistered places, or before or after the usual hours," I have the honour to express iny humble agreement with that suggestion.
I now approach the consideration of the 21st clause, which is justly characterised as one of the greatest importance. It seems to me that this clause should be amended and brought into harmony with the corresponding clause in the English Marriage Act (4 Geo. 4. c. 76. s. 22), which does not, according to the judicial interpretation by which it has been construed, invalidate a marriage unless both parties were cognizant of, and participating in, the fraud. This end might be attained by substituting the plural for the singular number, and reading, as in the English Statute, persons instead of person at the beginning of the clause, but it would be better to recast the clause, and, omitting all mention of persons incapable of contracting marriage by reason of their being within the prohibited degrees, or being otherwise incapacitated, to enact "that
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if both the parties to any marriage shall knowingly and wilfully intermarry under the provisions of this Ordinance in any place other than the office of the Registrar, " or registered place of worship, or under a false name or names, or without certifi- "cate of such notice duly issued, or shall knowingly and wilfully consent to, or acquiesce in the solemnization of a marriage by a person not being a minister or registrar for the district under the provisions of this Ordinance, the marriage of such persons shall be null and void," and to omit the remainder of the clause which would always be inconvenient in its operation, and would then be unnecessary. There must be another clause by which marriages within the degrees of consanguinity and affinity, prohibited by the law of England, are enacted to be ipso facto null and void.
With the general scope and tendency of the measure I have the honour to express my entire concurrence.
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I have, &c. (Signed) ROBERT PHILLIMORE.
The Right Hon. Mr. Secretary Cardwell, M.P.
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