CO885-(13-15) — Page 168

PUBLIC RECORD OFFICE

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C.O.885

Reference :-

13 PUBLIC RECORD OFFICE, LONDON

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

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OPINION,

1. I am of opinion that marriage licenses issued by bishop Hose or his surrogate for marriages within his diocese are valid in law.

2. To enable me to form an opinion on this case I have referred to the Indian Marriage Act, No. 5, 1865; to a copy of the Letters Patent creating the See of Labuan, dated August 8th, 1855, enrolled at Lambeth Palace library; to a copy of the Letters Patent annexing the Straits Settlements to the Diocese of Labuan, dated October 8th, 1869; to the notarial record of the consecration of Bishop Hose at the vicar-general's office, and to the Letters Patent of the Bishop of Calcutta and other Indian bishops also enrolled there.

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3. By ecclesiastical law the right of a bishop to issue marriage licenses is consequent on and flows from the act of consecration, and he does not exercise it in virtue of any Statute or of any special grant contained in the Letters Patent creating his see or appointing him bishop.

4. The Chancellor of an English diocese holds two offices quá Chancellor. He is the bishop's official principal, and as such is judge of his Consistorial Court, and therein exercises coercive jurisdiction. He is also the bishop's vicar-general, and in this capacity exercises for the bishop what in ecclesiastical law is termed voluntary as opposed to coercive jurisdiction, including the granting of marriage licenses.

5. At common law, and by ecclesiastical law, banns or a marriage license were not essential to the validity of a marriage, provided it was celebrated by a Clerk in Holy Orders. They were first nade essential in England by Lord Hardwick's Marriage Act, 26 Geo. II. c. 33. s. 8. Prior to this they were required by ecclesiastical law to constitute a regular as contradistinguished from an irregular marriage, and their omission was punishable by an ecclesiastical sentence only, without invalidating the marriage.

6. The Diocese of Singapore, Labuan, and Sarawak comprises Crown Colonies in which there are no independent legislative assemblies, as at the Cape, and so the decisions of the Judicial Committee referred to would not govern this case if they were in point.

7. By the Letters Patent creating the See of Labuan in 1855, the bishop is made subject to the Archi-episcopal See of Canterbury in like manner as any other bishop in the Province of Canterbury is, with full power to perform all the functions peculiar and appropriate to the office of bishop, and by himself or his vicar-general to exercise jurisdiction spiritual and ecclesiastical according to the ecclesiastical laws of England as therein expressed. He may appoint fit and proper persons to be his vicar-general, official principal, and commissary.

8. By 29 & 30 Vict. c. 115. the Straits Settlements ceased to be part of India, and by section 4 the Indian Marriage Act would remain in force in the then Straits Settlements until altered by authority, which has not been done. By 32 & 33 Vict. c. 88. the Straits Settlements ceased to be part of the Diocese of Calcutta. This Act is followed by Letters Patent, dated October 8th, 1869, declaring the Straits Settlements to be part of the See or Diocese of Labuan to all intents and purposes whatsoever. and that the Bishop of Labuan and his successors shall have the same rights, privileges, powers, and authorities therein as are given them respectively by the Letters Patent creating the See of Labuan in respect of the Island of Labuan."

9. It is upon the above state of law and facts that my opinion in favour of the validity of these marriage licences is based, and I think it may be rested on two grounds:-

(1.) That the Bishops of Labuan, being entitled to issue marriage licences in their original diocese, are entitled to issue them in their extended diocese by the Letters Patent of annexation, which gives them the same powers and privileges in the Straits Settlements as they were then entitled to in Labuan.

I should mention that their jurisdiction to grant marriage licenses is not named in the Letters Patent creating the See of Labuan, but no more is it in the Letters Patent of the Indian bishops, it being unnecessary and contrary to practice to do so in such instruments.

(2.) By the Indian Marriage Act, Part II., s. 11, marriages celebrated by a clergyman in Episcopal Orders, according to the rites of the church to which he belongs, are exempt from the notices in Schedule A.

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10. By section 61 a clergyman of the Church of England solemnizing a marriage without banns or a license from the Anglican bishop of the diocese, or a surrogate duly authorised in that behalf, is liable to imprisonment under the Penal Code.

11. The question arises whether a clergyman celebrating a marriage under a license granted by Bishop Hose or his surrogate would be liable to be convicted under this section, and I am of opinion that he would not.

12. I think the words " Anglican bishop of the diocese," in section 61, must be held to mean any diocese in which the place of the celebration of the marriage is at the time of its celebration situated, and that the Straits Settlements being severed from the Diocese of Calcutta and annexed to that of Labuan, the words would be extended to the Diocese of Labuan.

13. The word surrogate is a technical term in Ecclesiastical Law equivalent to deputy, and by Canon Law a bishop or his chancellor have power to appoint a surrogate or deputy to act for them in the performance of their judicial or ministerial legal duties.

14. If Bishop Hose is entitled to grant marriage licences quá bishop himself, he is entitled to empower a surrogate to grant them for him independently of Statute, or a special authorisation by Letters Patent. are undoubtedly valid, as they are not declared invalid by the Indian Act.

All marriages celebrated under such licenses

I have, &c., (Signed)

THOMAS H. TRISTRAM.

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