CO885-(10-11) — Page 394

PUBLIC RECORD OFFICE

Reference :-

TTTTTC.O. 885

10

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

PUBLIC RECORD OFFICE, LONDON

2

2. With respect to the second question, viz., Whether the license of the Governor or of any authority of the Anglican Church is necessary to the validity of that marriage, we answer that since the constitution of the see of Gibraltar we think the license of the bishop ought to be required previously to the marriage of two British subjects, members of the English Church, by a clergyman of that church, though we are not prepared to say that such license is absolutely necessary for the validity of the marriage. Previously to the constitution of the see of Gibraltar it would be in accordance with the usual power of a governor of a dependency or Colony that he should possess the authority to issue a license for the marriage of members of the Church of England. We do not know any authority, either direct or to be derived from analogy, which would give the Governor power to license marriages by ministers not belonging to the Church of England.

3. With respect to the third question, viz., Whether a marriage is valid if con- usages tracted between a Protestant and Roman Catholic according to the laws and of the persuasion to which the Protestant belongs, with or without the licenso above Whether the mentioned, we answer that the marriage of a Roman Catholic with a Protestant by a duly qualified Roman Catholic priest would certainly be valid. marriage of a Roman Catholic to a Protestant celebrated by an English priest with the license of the bishop would also be valid is a question of more difficulty. The general local law is applicable to Roman Catholics, and, as far as we are able to discover the limits within which that law has been relaxed by custom from the reports of the Crown Advocate of Malta, there seems no reason to believe that there is any custom by which mixed marriages of this kind would be validated. We have not, however, at present sufficient grounds to form a positive opinion as to whether these marriages would be holden valid or invalid by Maltese law. We think the English law would adopt the Maltese law, whatever it may be on this point. Whether a marriage celebrated by a Protestant Dissenting minister would be valid must also depend upon the legal force of the custom or usage (consuetudo abrogatoria) referred to by the Crown Advocate, which (if we havo rightly understood its extent) would seem to render good all marriages between Protestants solemnised under the conditions contemplated by the first question.

4. With respect to the fourth question, viz., Whether the present state of the law calls for any legislative interference, prospective or retrospective, on the part of the Imperial or Maltese Legislature, and if so, what is the nature of the legislation required. we answer that, in our opinion, thero is adequate cause for legislative interference for the purpose of removing doubts as to past marriages, and that it is very expedient that the validity of the marriages referred to should be confirmed, and for the future rendered clear, by a proper Ordinanco. With regard, however, to such legislation (especially so far as it may be prospective) we think there is some difficulty, regard being had to the peculiar character of Malta as a dependency of the British Crown. It is impossible to define legally whether a man changes his religious faith wholly, or It is the in part, upon conviction, or for a merely temporary or fraudulent purpose. policy of all Christian States to uphold the validity of marriages, and acting upon these principles the judicial committee of the Privy Council refused to annul a marriage celebrated at Rome by a Roman minister between an English Protestant, who declared himself a Roman Catholic for the purpose only of procuring the celebration of the marriage, and a Roman Catholic lady. Upon the whole we think that the best legis- lation for the future would be to compel all marriages to be entered into before a civil magistrate, leaving the parties at liberty to add whatever religious solemnities they please to the civil sanction. There would remain the difficulty suggested in the letter of Sir II. Storks as to the marriage, (after conversion to Protestantism) of priests, friars, and nuus, but we cannot think that it would be wise or proper to create or recognise by British Colonial legislation, any legal impediment to the marriage of such persons. We think it should be left to the Roman Catholic authorities to oxercise their own discipline as to such persons civilly contracting marriage, which may now be contracted in other parts of Her Majesty's dominions; to refuse them liberty of marriage would in our opinion be equivalent to refusing them liberty to change their religion.

We have, &c.

The Right Hon. Edward Cardwell, M.P.

(Signed)

ROUNDELL PALMER. R. P. COLLIER. ROBERT PIILLIMORE.

3150.

SIR,

No. 322.

(CEYLON.)

LAW OFFICERS to COLONIAL OFFICE.

Lincoln's Inn, March 30, 1865.

We are honoured with your commands, signified in Sir Frederic Rogers' letter of the 10th of March instant, stating that he was directed by you to transmit to us for our consideration a copy of a Despatch from the Officer Administering the Government of Ceylon submitting for Her Majesty's confirmation an Ordinance No. 2 of 1865 to amend the Land Registration Ordinance No. 8 of 1863, and to request that we would furnish you

with our joint opinion whether (with reference to our report of the 4th March last) (1864*) the 9th clause of this Ordinance furnishes sufficient protection to reversioners, and whether the amount of protection given to absentees having present interest in land and therefore well able to take care of their interests through their agents is not unnecessarily great.

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

Report

That it seems to us that there is no good reason why any considerable period beyond the three years allowed to all persons to bring forward their claims should be allowed to mere absentees from the island who are under no disability and who are entitled in possession. Such persons either are, or but for their own neglect might be, represented in the Island, and it is to be presumed that they would in most cases have notice of these Ordinances as soon as they became law. As the present Ordinance now stands an absentee who never personally visited the Island would never be bound at all, and if he did visit the Island, he would have a longer time allowed him by two years from the date of his arrival than he would have had from the date of his certificate if he had been then in the Colony.

We think that Her Majesty's assent to this Ordinance should be conditional on its being so amended, as to give no exemption and no great prolongation of time beyond the ordinary period of three years to mere absentees.

With regard to persons under disability, the allowance of five years from the cessation of disability seems to us excessive. We think it ought to be three years only, so as to make the whole Ordinance consistent. And it further seems to us that on the same principle remainders and reversioners ought not to be barred until the expiration of a like period (i.e. three years) from the time when their estates may fall into possession. These provisions, both as to persons under disability and as to reversioners, ought (we think) to be subject to the proviso as to the effect of any sale in the meantime by the holder of the certificate which is contained in the latter part of the present Ordinance. Subject to these observations, and if the Ordinance is further amended in conformity therewith, we think it may be approved by Her Majesty.

The Right Hon. Edward Cardwell, M.P.

&c.

&c.

We have, &c. (Signed)

&c.

*No. 240.

ROUNDELL PALMER. R. P. COLLIER.

&c.

&c.

&c.

Q 16278.-548. 93.-2.86.