PUBLIC RECORD OFFICE
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C.O.
Reference :-
885
13 PUBLIC RECORD OFFICE, LONDON
ALLY WITHOUT PERMISSION OF THE BE REPRODUCED PHOTOGRAPHIC- COPYRIGHT PHOTOGRAPH-NOT TO
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practice of its courts of judicature, and into its civil and ecclesiastical establish-
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The Commissioners in their report state" that the Maltese people without exception << are members of the Catholic Church. Their church is deemed the established church "of the island, though the members of other churches have complete legal protection in the public exercise of their respective modes of worship.' The Maltese clergy "retain the considerable endowments of which they were possessed on the establishment of the English Government. Most of the law of Malta is derived directly from the "Roman Law." Pt. III., p. 39.
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The report contains no references to the marriage law of Malta, commissioners held their inquiry in the island, the practice of the Protestant Episcopal When the chaplains celebrating mixed marriages had continued for upwards of 35 years. Had this practice been at that time deemed to be illegal, it is reasonable to suppose that the commissioners would have made a special reference to it in their report.
For the first 42 years after the British occupation-namely until the bishopric of Gibraltar was founded in 1842-the clergy and laity of the communion of the Church of England, resident in Malta, were by custom subject to the jurisdiction of the Bishop of London, and the clergy in relation to the celebration of marriages would act under the bishop's directions.
It has always been the practice of the Bishops of London, to refer questions, which arise in relation to the celebration of marriages in colonial and foreign parts, to their Chancellor, and to act upon his opinion.
The Chancellor of London from 1800 to 1821 was Lord Stowell, from 1821 to 1828, Sir Christopher Robinson, and from 1828 to 1843, Dr. Lushington,
In the ordinary course of the business of the diocese, the practice observed by the clergy at Malta in celebrating marriages during the first 43 years of the present century would be within the knowledge, and presumably under the sanction, of these three distinguished ecclesiastical judges, and had they considered the practice to be illegal, it would have been their duty to advise its discontinuance.
The validity of mixed marriages was first questioned in 1865 by Sir Adrian Dingli, the then Crown Advocate, and now Chief Justice of Malta, and towards the close of that year Lord Cardwell, as Her Majesty's Chief Secretary of State for the Colonies, transmitted to the Maltese Government a draft ordinance for the removal of such doubts with a view to its enactment. proposed ordinance, and Governor's licences for mixed marriages were continued No steps were ever taken to give effect to the without objection, to be issued as heretofore, until the month of
1889,
when a licence for such marriage was, for the first time since the commencement of the British occupation of the island, refused to be granted, and none have been since granted. It appears by the Parliamentary papers that Her Majesty's Government are now advised by the Crown Advocate of Malta-and it is well-known that his advice has the approval of Sir Adrian Dingii, the Chief Justice, and that of other judges of the High Court of Malts—that mixed marriages which have been celebrated in the island since the British occupation, either by the English clergy or by Presbyterian or Wesleyan ministers, are, by the law of Malta, invalid, on the ground that by Maltese law the presence of a Roman Catholic priest was and is essential to the validity of such marriages,
That Her Majesty's Government are also advised by the Crown Advocate that this country is under national engagements, not only for the maintenance of the Roman Catholic religion, but also, for the enforcement of the Canon Law in Malta.
In support of such advice, certain propositions of law or fact have been directly or indirectly advanced, which I will state and consider seriatim.
(1). The first of these is, that the existing law of Malta in regard to the celebration of marriages is the Canon Law, which was introduced into Malta and its dependencies by usage long before the British occupation, and has remained in force to the present day (see an answer given in the House of Commons, by the Right Hon. W. H. Smith, July 21, 1890).
If the present law of Malta in regard to the celebration of marriages is the Canon Law, I have the honour to report to your Grace that all the Protestant marriages celebrated in Malta, whether mixed or unmixed, since the British occupation, are by that law perfectly valid.
Before the Council of Trent (1563) two forms of contracting marriage were sanctioned by the Canon Law, (1) a regular marriage, celebrated in the presence of a priest, and preferably in facie ecclesia; (2) an irregular marriage, constituted without the intervention of a priest by a declaration, or what was equivalent to a declaration, of the mutual consent of the parties to become man and wife.
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Both forms of marriage were equally valid in the eye of the law. Celebration before a priest was enjoined only as a matter of ecclesiastical order and ecclesiastical discipline. The validity of an irregular marriage clearly appears from the decretals. There is the decree of Gregory IX. on this point in the following terms: "Si inter virum et mulierem legitimus consensus interveniat de præsenti, ita quod unus alterum consensu verbis " consuetis expresso recipiat, utroque dicente, 'ego te in meam accipio,' et ego te in meum, vel alia verba consensum exprimentia de præsenti, sive sit juramentum interpositum, sive non, non licet alteri ad alia vots transire: quod si fecerit secundum "matrimonium de facto contractum, etiansi sit carnalis copula subsecuta, separari debet, "et primum in sua firmitale manere."-Decretal, Lib. IV. Pl. 1, c. 31.
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The question as to what was essential by the Canon Law to constitute a valid irregular marriage, and what countries had adopted the Canon Law as their marriage law, has been argued at great length, and considered in three leading cases during the present century.
The earliest of these cases, Dalrymple v. Dalrymple, was heard in the first instance by Lord Stowell, in 1811, in the Consistory Court of London (see 2 Haggard's Consistory Reports, p. 54).
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The facts of this case, so far as they are material to the present inquiry, are as follows: Mr. Dalrymple, being quartered in Edinburgh with his regiment, became acquainted with a Scotch lady, Miss Johanna Gordon, who was living there with her parents. On the 28th of May 1804 they each signed the following paper: "I hereby declare Johanna Gordon is my lawful wife," and "I hereby acknowledge John William Henry
Dalrymple as my lawful husband." to be disclosed for a time,
By mutual arrangement the marriage was not ments of the relations of the parties, and for two years afterwards they corresponded There were other documents containing similar acknowledg- and met as man and wife. In 1806 Mr. Dalrymple ceased to communicate with his wife, and in 1808 he married Miss Laura Manners in England. His wife thereupon sued him in the Consistory Court of London for restitution of conjugal rights. He appeared in the suit, and denied the validity of the Scotch marriage, and on the ground of its invalidity prayed to be dismissed from it. Lord Stowell decided that the Canon Law in regard to the celebration of marriage was proved to be the law of Scotland, that by the Canon Law a valid marriage might be contracted or constituted by the parties mutually accepting each other as husband and wife, and that the documents and facts proved in that case established a contract of marriage," sponsalia per verba de præsenti tempore," valid according to the Canon Law, and on this ground he pronounced for the validity of the Scotch marriage, and decreed restitution of congugal rights in favour of the wife. This judgment was affirmed on appeal in the Arches Court, and in the High Court of Delegates.
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In Lord Stowell's judgment there are the following passages pertinent to the first proposition. At page 63 Lord Stowell says:-" Marriage in its origin is a contract of "natural law; it may exist between two individuals of different sexes, although no third person existed in the world, as happened in the case of the common ancestor of "mankind. It is the parent, not the child of civil society, 'Principium urbis, et quasi "seminarium reipublicæ. In civil society it becomes a civil contract, regulated and prescribed by law, and endowed with civil consequences. In most civilised countries, acting under a sense of the force of sacred obligations, it has had the sanction of religion superadded. It them becomes a religious as well as a natural and civil contract, "and it is a great mistake to suppose that because it is the one, therefore it may not "likewise be the other. Heaven itself is made a party to the contract, and the consent "of the individuals pledged to each other is ratified and consecrated by a vow to God. "It was natural enough that such a contract should, under the religious system which prevailed in Europe, fall under ecclesiastical notice and cognizance with respect both "to its theological and its legal constitution, though it is not unworthy of remark "that, amidst the manifold ritual provisions made by the Divine lawgiver of the Jews "for various offices and transactions of life, there is no ceremony prescribed for the " celebration of marriage. In the Christian Church marriage was elevated, in a later age, to the dignity of a sacrament, in consequence of its divine institution, and of some expressions of high and mysterious import respecting it contained in the sacred writings. The law of the Church, the Canon Law (a system which, in spite of its "absurd pretensions to a higher origin, is in many of its provisions deeply enough "founded in the wisdom of man), although in conformity to the prevailing theological
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opinion, it reverenced marriage as a sacrament, still so far respected its natural and civil origin as to consider that where the natural and civil contract was formed, it had the full essence of matrimony without the intervention of the priest it had even
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