CO885-(10-11) — Page 256

8317.

MY LORD DUKE,

No. 208.

(SOUTH AUSTRALIA,)

QUEEN'S ADVOCATE to COLONIAL OFFICE.

Doctor's Commons, August 25, 1863.

I AM honoured with your Grace's commands, signified in Sir F. Rogers' letter of the 15th August instant, stating that he was directed to acknowledge my Report of the 24th of July* respecting an Act passed by the Legislature of South Australia in last October, intituled, No. 4, "An Aot to amend the Acts relating to Marriages in the "Province of South Australia by extending certain provisions thereof to persons

professing with the Society of Friends called Quakers."

That I stated in that Report that this Act is objectionable as extending to this society the power of celebrating marriages between persons not belonging to their own denomination.

"

Sir F. Rogers was also to enclose for my consideration copies of the existing Marriage Acts of South Australia, namely, No. 12, of 1842, " For regulating Marriages "in South Australia," and No. 18, of 1852, "To amend the Law of Marriage in South Australia. That by reference to the 15th, 31st, and 32nd sections of the Act of 1842, and to the 5th section of the Act of 1852, I should perceive that the officiating ministers of every Christian denomination have the power of celebrating marriages without any such restriction with regard to the persuasion of the parties married as is imposed upon Quakers and Jews. That your Grace apprehends that in almost all the important provinces of the British Empire similar laws have been passed, and that Christian ministers are at liberty to celebrate marriages without inquiring whether the parties, or either of them, are members of the minister's communion.

That on the other hand, however, it would appear that by the 15th section of No. 12 of 1852, a certain form of proceeding is required in the case of ordinary marriages which Quakers and Jews are not required to adopt.

That it is also to be observed that a provision is made by the 1st section of the Act of 1862, which seems materially to interfere with the simplicity of the marriage law of South Australia by making the validity of a marriage depend upon the existence and effect of certain general rules of the Society of Friends, which, even if rightly under- stood by the parties to the marriage, it might be difficult to prove in England or elsewhere after a lapse of time, and which it does not seem desirable that a Colonial Legislature should import into the municipal law of marriage. And that your Grace would be glad to be informed whether the perusal of the two Acts of 1842 and 1852 leads me to modify the opinion expressed in my Report of the 24th July which was written without the knowledge of those Acts.

In obedience to your Grace's commands I have taken these acts into consideration, and have the honour to

Report

That the marriages of Quakers and Jews have always hitherto, on account of the great peculiarity of the religious institutions of these bodies, been confined to members of their own congregations. It is not now proposed to remove this restriction in the case of Jews, though upon careful consideration it would perhaps not be found easy to maintain it on principle in the one case and relax it in the other. With respect to the Society of Friends, inasmuch as wherever the system of civil marriages under the registrar prevails, a Quaker and a person professing any other religious belief can be lawfully married, and afterwards if they please go through the religious ceremony peculiar to the Society of Friends, it would seem that under this system while the rights of conscience are respected the validity of the contracteured. At all events the proposed Act furnishes an illustration of the difficulties which beset a departure from this course. By the provisions of it the capacity of a person, not a Quaker, to be so married, and therefore the validity of the marriage contract, is made to depend upon the proper construction of certain rules peculiar to the Quakers, verified in a certain Persons who for some immoral motives wish to shake off the obligations of the contract, will, of course, ondeavour to do so by procuring a sentence of nullity of marriage on the ground of non-compliance with some of these rules, which are for the

manner.

0 16278.-629. 25.-2/86.

• No. 200,

*

PUBLIC RECORD OFFICE

Reference :-

TILLC.O.

ALLY WITHOUT PERMISSION OF THE BE REPRODUCED PHOTOGRAPHIC- COPYRIGHT PHOTOGRAPH—NOT TO

885

10 PUBLIC RECORD OFFICE, LONDON