CO885-(10-11) — Page 393

2982.

PUBLIC RECORD OFFICE

19

C.O.

Reference :-

· 885

10 PUBLIC RECORD OFFICE, LONDON

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

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to the contrary) of capturing and killing cattle upon the lands so granted and leased.

That although this decision was confined to the determination of the question of right you have nevertheless instructed the Governor to repay the amount paid by the company's agent by way of fine and costs, and also the amount paid for the licenses obtained by the agent in 1861.

But the company in a letter, of which a copy was enclosed, has preferred among others the following claims :--

1. For costs incurred by the company in obtaining judgment from the Judicial Committee of Her Majesty's Privy Council, 550l. 78.

2. For (fees F) paid to the police court at Stanley (Falkland Islands) for sending the record of its proceedings to Her Majesty's Privy Council, 11. 58.

3. For compensation for losses sustained by being deprived of the legitimate privi- leges over 80,000 acres of land for 33 years, 2,3437. 58.

Sir Frederic Rogers was therefore pleased to state that you desired to be informed whether, and to what extent, these claims should be entertained by Her Majesty's Government.

That as the Falkland Islands Legislature had recently passed an Ordinance, of which the company's agent complains, for the protection of penguins, he was further to request our opinion whather the judgment of the Judicial Committee is to be considered as preventing the local Legislature from passing Ordinances to prohibit or regulate the killing wild animals and birds within the lands leased or granted to the Falkland Talands Company.

Sir Frederic Rogers was further pleased to state that in order to avoid misconception he was to observe in conclusion that these questions relate exclusively to lands leased or granted to the company in the Northern Peninsula of the Falkland Islands, in which they were intended to hold the position of ordinary settlers, and not to certain other lands, being, in fact, the whole of the Southern Peninsula which were granted under exceptional circumstances and with exceptional privileges.

That the company's right to kill animals at pleasure on this part of their property stands on different grounds and is not disputed.

In obedience to your commands we have taken this matter into consideration, and ave the honour to

Report

That in our opinion no part of the claim now made by the Falklands Company is sustainable in point of law, but that we think it results from the view of the case taken by the Judicial Committee of the Privy Council, that the company have a moral claim upon the consideration of Her Majesty's Government for a reasonable compensation for any costs and damages which they can prove to have been necessarily incurred by them by reason of the erroneous interpretation placed upon the local law by the Government of the Falkland Islands.

We do not look upon this as an ordinary case of a claim arising out of a mere mis. carriage of criminal justice, because in this case the correspondence between the com pany and the Emigration Commissioners proves the intention of the Crown grants to the company to have been to carry the right of hunting and killing any wild cattle which might at any time be on their land, on the footing that such wild cattle were fera naturae, so that there was not only an erroneous administration of the criminal law, but the effect of the error (originating with the authorities representing the Crown) was to defeat the express contract between the Crown and the company.

We cannot of course form any opinion upon the question of the amount of compen- sation claimed, except that it seems to us, prima facie, excessive. We think it would be reasonable to offer the costs which the company has incurred, but the claim of 2,3431. 58. for the loss of cattle which might have been killed, if a different view had been taken of the law, seems to us to be too remote and speculative to be (without further evidence at all events) entertained.

We are clearly of opinion that the judgment of the Judicial Committee is not to be considered as calling in question the power or right of the local Legislature to pass Ordinances to prohibit or regulate the killing wild animals and birds within the lands leased or granted to the company.

We have, &c.

ROUNDELL PALMER.

The Right IIon. Edward Cardwell, M.P.,

&c.

&c.

&c.

(Signed)

R. P. COLLIER.

SIR,

No. 321.

(MALTA.)

LAW OFFICERS to COLONIAL OFFICE.

Lincoln's Inn, March 28, 1865. We are honoured with your commands, signified in Sir Frederic Rogers' letter

of the 15th ultimo, stating that he was directed by you to enclose for our consideration the papers noted in the margin.

Gov, 11 Jan. 1865, separatis. and confidential

Extract of

from Gov. to

1845.

10 June 1848.

Sir Frederic Rogers was also pleased to state that it appears that the marriage law and enclosures. of Malta is the Roman Canon Law, but that the Governor before the appointment of a private letter bishop, and the authorities of the Anglican Church since that appointment, have 8. Jan. exercised the power of issuing marriage licenses for marriages to be celebrated accord-day, No. 38, ing to the rites of the Church of England, and that it would appear also that after LAT the appointment of the bishop marriages have been celebrated by the ministers of 180 other Protestant persuasions (viz., Presbyterian), sometimes with and sometimes without CO. 10 Oct. the license of the Governor, and that the Governor is not and never has been Gor, No. 55, authorised by his commission to issue marriage licenses, nor is any such authority Todor, No. 43, given to the bishop by his Letters Patent.

Sir Frederic Rogers was also pleased to state that we should see by one of the cuclosures to Sir H. Stork's Despatch of the 20th of January 1865, that in the opinion of the Queen's Advocate of Malta a marriage celebrated according to Protestant forms is valid by the law of Malta if both parties are Protestants, but is invalid if one of the parties is a Roman Catholic; and that we should also observe that a reprehensible practice is growing up among persons desiring marriage of changing their religion, in order to avoid the delays and obstacles interposed under various circumstances by the ecclesiastical law of Malta; and that under these circumstances you desired to obtain our opinion on the following points :-

1. Whether a marriage between two Protestante solemnised in Malta by ministers, and in conformity with the laws or usages of the religious communion to which the parties or one of them belong, is a valid marriage according to the law of England.

2. Whether the license of the Governor or of any authority of the Anglican Church, 18 necessary to the validity of that marriage.

3. Whether a marriage is valid if contracted between a Protestant and Roman Catholic according to the laws or usages of the persuasion to which the Protestant helongs, with or without the license above-mentioned.

J

4. Whether the present state of the law calls for any legislative interference, pro- spective or retrospective, on the part of the Imperial or Maltese Legislature, and if so what is the nature of the legislation required?

In obedience to your commands we have taken this matter into our consideration, and have the honour to

Report

That with respect to the first question, namely, Whether a marriage between two Protestants solemnised in Malta by ministers and in conformity with the laws or usages, of the religious communion to which the parties, or one of them, belong, is a valid marriage according to the law of England? we answer that if this kind of marriage is valid in Malta, it will also be holden valid according to the law of England. The true question, therefore, is whether the marriage be valid according to the law of Malta, and looking to the opinion expressed on this subject by the Crown Advocate, we are led to a conclusion in favour of the validity of such marriages. It is clear indeed that they are invalid according to the decree of the Council of Trent, but the decrees of this council have not been admitted as binding in all Roman Catholic countries unless they have also been made part of the law of the land by some special ordor or law of the State. We must assume from the Crown Advocate's opinion that while Malta was in the possession of the Knights of St. John, the decrees of the Council of Trent relative to marriages became incorporated into the law of the island; but we think we must also assume the existence of what civilians call a consuetudo abrogatoria of sufficient force to override this law, and to validate these marriages. But we must repeat that this is really a question to be decided by the law of Malta, and that as it appears that there has been as yot no judicial decision upon the subject, the question cannot be considered as entirely free from doubt.

16278-737. 225.-2/86.

Omoors, 18 July

Law Offcars to

1846.

8 May 1848.

8 June 1848.