PUBLIC RECORD OFFICE
Reference :-
C.O.8
.885
16 PUBLIC RECORD OFFICE, LONDON
ALLY WITHOUT PERMISSION OF THE BE REPRODUCED PHOTOGRAPHIC-
COPYRIGHT PHOTOGRAPH-NOT TO
2
(3.) If so, what was the effect of Section 21 of that Regulation with regard to marriages contracted per verba de præsenti in Pitcairn!
(4.) Whether a law which compelled members of one denomination to be married by the minister and according to the religious forms of another denomination, excluded the doctrine of necessity, and, in the event of persons disregarding the law and contracting a marriage per verba de præsenti, whether such a marriage was
valid?
(5.) Whether we concurred in the answers of our predecessors in office to the third and fourth questions submitted to them, and whether, with regard to the fourth question, the Pacific Order in Council should not be amended so as to provide for civil marriage officers and a civil form of marriage, as suggested in the fifth paragraph of the letter of reference?
We have taken the matters into our consideration, and, in obedience to Your Lordship's commands, have the honour to
Report-
(1.). That, in our opinion, the marriage of Walter Henry Petch and Esther Godfrey Coffin is valid on the ground that it was contracted in accordance with the Common Law of Pitcairn which, we think, enables a marriage per verba de præsenti to be contracted without the presence of a person in holy orders.
Assuming that the presence of such a person is necessary by the Common Law of England, we think that the settlers at Pitcairn Island are subject only to so much of that law as can by possibility be applied, and their circumstances make it impossible to procure the attendance of a person in holy orders at their marriages. To that extent, therefore, the Common Law as laid down in R. v. Millis is modified in their case. The presence in the island of ministers of the Seventh Day Adventists does not affect the question, for-we presume that they are not persons in holy orders, that is to say, episcopally ordained.
(2) and (3.) This Regulation has no bearing on the case now in question. It applies only to marriages of foreigners and of British subjects celebrated by a minister who is not a British subject. With that qualification it applies to Pitcairn Island.
(4.) As indicated in the foregoing answers, we think that the Pacific Order in Council and the Queen's Regulations do not make it necessary that all marriages should be contracted under its provisions in order to be valid. The Order provides a regular form which it is, no doubt, desirable should be used, but it does not expressly, and cannot by mere implication, invalidate marriages contracted under the Common Law.
(5.) We concur in the answer of our predecessors to the third and fourth ques- tions submitted to them, and as regards the fourth, we think that the Order in Council should be amended so as to provide for civil marriage officers and a civil form of marriage in substitution for, or in addition to, the present provisions for registered minister of religion and marriage by religious ceremony. If marriage by registered ministers of religion is retained, we think that power should be reserved to remove such minister from the register at the discretion of the High Commissioner.
We have, &c..
JOHN L. WALTON. W. S. ROBSON.
The Right Honourable
The Earl of Elgin, K.G.,
&c., &c..
&c.
K
40958
No. 47.
(NEWFOUNDLAND.)
LAW OFFICERS to COLONIAL OFFICE.
[United States Fishing Rights: Modus Vivendi: Powers of His Majesty in Council
under 59 Geo. III. c. 38.]
Royal Courts of Justice,
MY LORD,
October 20, 1906. WE were honoured by your Lordship's commands signified to us by Mr. Ber- tram Cox in his letter of the 28th August last, stating that he was directed by your Lordship to lay before us copies of communications which have passed between His Majesty's Government and the United States Government as to the conditions in which the American liberty of fishery on the coasts of Newfoundland, under Article I. of the Convention of 20th October, 1818, was to be exercised.
That it would probably be necessary to consult us before a reply was returned to the last communication from the United States Government, but that in the meantime he was to state that, owing to the great divergence of view between the two Governments which that communication disclosed, it has been decided by His Majesty's Government, pending further discussion of the questions involved and without prejudice to such discussion or to the rights and claims of either party, to endeavour to make with the United States Government a provisional arrange- ment in the nature of a modus vivendi, which would enable the winter herring fishery (principally in the Bay of Islands) due to begin in the second half of October, to be carried on in peace and good order.
That His Majesty's Government had not yet been able to obtain the consent of the Colonial Government to the making of such an arrangement, and it has conse. quently become necessary to consider how far His Majesty's Government were in a position to give effect to any such arrangement, independently of the consent and authority of the Colonial Government.
That the text of the Convention would be found on pages 273-4 of the Cabinet Print of 1852, and that on pages 274-6 would be found the text of the Act 59, George III., C. 38, and the text of the Order in Council made under that Act on the 19th June, 1819.
r
That by Section I. of the Act His Majesty was empowered to make by Order in Council such regulations and to give such directions, orders, and instructions to the Governor of Newfoundland, or to any officer or officers on that station, or to any
other person or persons whomsoever as shall or may be from time to time deemed proper and necessary for the carrying into effect the purposes of the said Convention, with relation to the taking, drying, and curing of fish by inhabitants of the United States of America, in common with British subjects, within the limits set forth in the said Article of the said Convention, and hereinbefore recited; any Act or Acts of Parliament, or any law, custom, or usage to the contrary in anywise notwith- standing."
That by the Order in Council of the 19th June, 1819, the Governor of Newfound- land was instructed to "give notice to all His Majesty's subjects being in or resorting to the said ports, that they are not to interrupt in any manner the aforesaid fishery so as aforesaid allowed to be carried on by the inhabitants of the United States in common with His Majesty's subjects on the said coasts, within the limits assigned to them by the said Treaty"; and it was further ordered "that the Governor of Newfoundland do conform himself to the said Treaty, and to such instructions as he shall from time to time receive thereon in conformity to the said Treaty, and to the above-recited Act, from one of His Majesty's Principal Secretaries of State."
That this Order in Council was still in force, and its significance was discussed with reference to the provisions of the Newfoundland Foreign Fishing Vessels Act, 1905, to which objection had been taken by the United States Government in the Report of our predecessors of the 21st November last."
That our predecessors were of opinion that while the Order in Council applied to officials as well as to private persons, the fact that the acts complained of were authorised by an Act of the local legislature would probably be an answer to any proceedings in respect of an infringement of the Order in Council, and that the provisions of the Order in Council were of so general a nature that it was doubtful whether the provisions of the local Act would be held void as repugnant to orders
(21104-2.) Wt. 16-15, 25, 1/19. D&S. Q.1.
• No. 23.