PUBLIC RECORD OFFICE
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Reference :-
C.O.885
13 PUBLIC RECORD OFFICE, LONDON
ALLY WITHOUT PERMISSION OF THE BE REPRODUCED PHOTOGRAPHIC- COPYRIGHT PHOTOGRAPH—NOT TO
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"This has been looked upon as a very singular affair, and is still one of the principal topics of conversation. The first part of the sentence has already been executed, and the poor wretch is now in a dungeon. Nor is it thought that any abatement will be made in what remains.”
3. By the decrees of the Council of Trent provisions were made relating to the celibacy of the clergy, and to secure, on their death, that their property should, in the main, be for the use of the Church.
It appears in a recital in a Bull of Pope Pius VI., addressed to the bishop and clergy of Malta, dated July 1777, published in Del Dritto Municipali di Malta, and printed after the Code de Rohan (in British Museum), that before and at that time the clergy in Malta were in the habit of marrying, and that the civil courts of the island held their marriages to be legal, and their children to be legitimate, and distributed their property accordingly, to the detriment of the claims of the Church, and that the married clergy held benefices, which they were prohibited from holding by the decrees of the Council.
This Bull was issued with a view (amongst other things) to put a stop to these proceedings, and contained injunctions from Pope Pius VI. for the observance of the decrees in the above particulars.
His Holiness transmitted a copy of this Bull to the Grand Master de Roban, accompanying it with a letter dated Jan. 2, 1781, desiring that the Grand Master should give legal authority to the Bull in Malta, so that its injunctions might be enforced, and on the 22nd of March 1781 the Bull was, for this purpose, in due form confirmed and sealed by the Grand Master in Council.
Upon the above facts the following observations obviously arise. If the decrees of the council had been incorporated in the law of Malta by a previous acceptance and promulgation there, how came it that their authority was totally ignored by the legislative and administrative government of the islands, by the civil and criminal courts, by the clergy, and by the people? The fact of the criminal court punishing a man for his refusal to fight a duel in obedience to this decree, and of the civil courts acknowledging the validity of the marriage of the clergy and distributing their property on the assumption of their validity, contrary to the decrees of the Council, show conclusively that, in the opinion of the criminal and cival courts, the decrees formed no part of the law of Malta.
But if the Canon-Law on irregular marriages was not abrogated in Malta by the acceptance and promulgation of the decrees of the Council of Trent, it may be suggested that it was abrogated in some other way.
This leads to the consideration of the further questions "In what other way could
it be abrogated; and, was it in fact abrogated in any other way prior to the British occupation?
"
The Canon Law on irregular marriages forms part of the Lex Scripta.
It is a rule of the civil law, as it is of the law of England, that a written law can only be repealed by a written law. See the Lord Justice Lindley's introduction to The Study
of Jurisprudence, being a translation of Thibaut's Systein des Pandehten Rechts, ch. VIII. of the Duration and Repeal of Laws, ss. 39. "Laws can only cease to be binding " in consequence of some act of the legislative power.'
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Ss. 41. "An old law is repealed by a later one. This, however, is only true when there is a complete and clear inconsistency between the old and new laws.' On this point, I take it that the law of Malta follows the civil law.
From 1563 up to the capture of Malta by the French in June 1798, there was but one legislative assembly in Malta for ecclesiastical, as well as for civil, affairs, the Consiglio Popolare. There was no separate council of the clergy invested with power to Jegislate on the affairs of the Church. When it was intended to legislate on Church matters, the representatives of the clergy were summoned to sit and vote in the Consiglio Popolare.
If the rule of the Canon Law on irregular marriages was abrogated after 1563, it must have been by an act of this Council, and that act would appear in the Civil Code of Malta.
The only Civil Code of Malta in force at the time of its capture by the French was the Code de Rohan, promulgated 1782, with some additional laws (none of which
relate to marriage) made between its promulgation and June 1798.
Whether the rules of the Canon Law on irregular marriages had or had not been abrogated or varied by this code prior to June 1798, depends upon the legal effect of certain clauses contained in Chapter I. of Book III. of the Code de Rohan, which were referred to by your Grace in the debate in the House of Lords on this question on the
day of July last.
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The following is the heading to Book III., “On various Contracts, Obligations, and Pledges'
Chapter I.-On matrimony and the marriage state. The following are the passages referred to, or bear upon those referred to, by your Grace.
Ss. 1. "Marriage contracted dominion among our subjects, without written compact or any other agreements, will or which in future shall be contracted in this be considered to have been contracted according to the oldest customs of these islands, Malta and Gozo, namely, that the present and future property of the husband and wife should be amalgamated and divided ultimately in three parts, the husband to take one-third, the wife one-third, and the children one-third."
Ss. 3. "The parties may also contract marriage according to the aforesaid custom, by written compact, into which they may introduce stipulations and conditions, provided they are not contrary to law.'
Then follow a number of clauses containing provisions relating to the shares of the parents and children of a marriage, which do not concern the present question up to
clause 19.
Ss. 19. "If the marriage shall have been contracted by written compact, according to the usage of the Greeks and Romans, in such case the above marriage conditions (referring to some previous provisions immaterial to the present question) are not valid, even if children have been born, but the stipulations and agreements of the contracting parties contained in the marriage compact, and in conformity to the laws, must be carried out." Ss. 20. "The marriage of a widower or widow, in default of compact or other agreement, shall be regarded as contracted in a similar manner to the first, that is to say, according to the aforesaid custom, if the first marriage was so contracted, or according to the usage of the Greeks and Romans, if the first was solemnized in that
manner.
Ss. 27. "The marriage of foreigners domiciled in this dominion, contracted without written compact, conditions, or agreements to the contrary, arc, and are to be, regarded as contracted according to the aforesaid custom."
Ss. 29. "And if the marriage is between a foreigner and a Maltese woman, or, on the other hand, between a foreign woman and a Maltese, in the absence of a written compact, conditions, and agreements, it is to be regarded generally as contracted according to the custom and usage of the country."
"And all contracts which shall be made in this dominion by strangers, even though made under the flags of foreign Princes, of whatsoever kind they may be, are, and are to be regarded as contracted according to the municipal law, and according to the usage of the country,"
Ss. 30.
Ss. 31. “And at every marriage without distinction the ceremonies have to be observed prescribed in Book I. cap. XLI., 89. 9 till 14, under the penalty there mentioned."
It is to be observed that these clauses contemplate marriages being contracted in Malta, where both the parties to the marriage are Maltese, or where both are foreigners,
or where one of the parties is a Maltese and the other a foreigner.
It is also to be observed that they contemplate, that on every marriage the property
of both parties shall be either made the subject of a written compact or settlement,
or in the absence thereof shall be regulated by the custom of the islands.
It is also to be observed that they sanction three different kinds of written compacts
or settlements, namely settlements according to the Maltese law, or according to the usages of the Greeks, or of the Romans.
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It is to be also observed that they contemplate, in the absence of a written compact any of the above three cases, the properties of the parties being divisible according to the custom of the islands.
A marriage may be therefore contracted in any of the three cases without there being any settlement whatever in writing regulating the property of the parties, but by section 31, “At every marriage without distinction the solemnities prescribed in Book I. cap. 41, sections 9 to 14, are to be observed under a penalty."
Section 9 of chapter 41, Book I., is as follows:--
Ss. 9. "All contracts, including those concerning donations between living persons, made by the hand of a notary public, or contained in a private document or manu- script, must be signed by the contracting parties, and if through ignorance or other cause they are unable to write, then by other persons, whom the parties shall specially appoint, and also by the two witnesses legally required, otherwise such contracts shall
be null and void.'
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