CO885-(13-15) — Page 187

PUBLIC RECORD OFFICE

Reference :-

C.O.885

13 PUBLIC RECORD OFFICE, LONDON

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If the words in section 31 At every marriage without distinction" are to be read as including every marriage, whether it be accompanied by a written settlement or not, a consent in writing to every marriage signed by both the parties and by the two witnesses is required as csscutial by the Code de Rohan to its validity, and the rules of the Canon Law on irregular marriages, in so far as they do not require any such consent in writing, would be varied by the joint eperation of these two clauses.

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But if the words “At every marriage without distinction only where there is a written settlement, then the rules of the Canon Law would not be are to be lin ited to cases varied by the Code de Rohan.

Which of these two constructions is to be adopted will depend upon the construction put upon them in practice, i.e. upon contemporanea expositio.

If, since the date of the code, the rule at Malta in all public and secret marriages celebrated by the priests has been to require a declaration in writing of the consent of the parties to the marriage to be signed by them, and two witnesses, whether in the marriage register or in the marriage certificate, or in some other memorandum, the first construction will be the legitimate one. one should be adopted.

If such has not been the practice, the second

Upon the question whether there has been since 1563 an abrogation of the rules of the Canon Law on irregular marriages by the civil law of Malta, I have the honour to report to your Grace that there is no evidence of such abrogation, unless the practice warrants the construction I first suggested being put upon the two clauses in the Code de Rohan before referred to, and that, if that construction cannot be sustained by the practice, then the fair presumption is that the rules of the Canon Law on irregular marriages remained unabrogated, and continues to be part of the law of Malta up to June 1798.

I have further the honour to report to your Grace that either of the two constructions would admit of a valid marriage being contracted in Malta as a civil contract, without the intervention of a priest.

This conclusion is favoured by the following facts in the history of Malta and by some of the passages in Chapter I., Book III, of the Code de Rohan,

1. The Maltese were cosmopolitan in their national policy.

Their success and national wealth largely depended upon commerce.

To advance

their commerce they encouraged foreigners to settle in the islan Is, and would admit a foreigner, after he had been domiciled there for five years, if he were married to a Maltese woman, to be a member of the Consiglio Popolare by a special Act of the Council.

2. The Government of Malta during the last century was extremely tolerant, as well as cosmopolitan in their policy. Mr. Brydone, in his letter to Alderman Beckford of June 7, 1770, writes: "notwithstanding the supposed bigotry of the Maltese, the spirit of "toleration is so strong, that a mosque has lately been built for their sworn enemies, the Turks. Here the poor slaves are allowed to enjoy their religion in peace. It happened lately that some idle boys disturbed them during their service; they were immediately "sent to prison, and severely punished." (P. 130.)

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3. The liberal spirit of the provisions for Greck and Roman marriage settlements contained in the Code de Rohan.

Marriage in Malta would no doubt be usually celebrated by a priest, as is common in all Koman Catholic countries, but the fact that a regular marriage was the general rule of the islands would not place upon irregular marriages the stamp of invalidity.

I will now refer briefly to the position of Malta and its dependencies, and its relations with this country since its capture by the French on June 5, 1798.

For the first three months after its capture the French were in occupation and had the control of Malta, and in due course proclaimed French law as the rule of law to be observed throughout the islands. The Maltese then rose against the French, and drove them within Valletta and its suburb. They elected a popular assembly or council, with Captain Alexander Ball, R.N. (afterwards Sir Alexander Ball), as Capitano. They soon secured possession of the island, with the exception of Valletta and the country three miles outside it. Within these limits, with the assistance of British troops and British sailors, they continued to keep the French in a state of siege for two years, whilst the English fleet blockaded the port. On the 5th of September 1800, the French General, without communication with the Maltese, capitulated to Major-General Pigot, the British General in command, and the officer in command of the fleet. The Maltese leaders admitted that they could not have driven out the French unaided, but considered themselves aggrieved in not having been made a party to the capitulation.

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During the blockade the Assembly had. however, determined "to send a deputation to England to offer the island to His Majesty King George III., and to request that they might be governed by British laws, on condition that Great Britain should protect "the island, and keep possession of it for ever, their ardent wish being to be in-

corporated in the British Empire." (Eton.)

Upon the capitulation," they stated that they gave up their country without suspicion, "and relying on the good faith of the British nation, into the hands of the British Generals without stipulations, obeying them with fidelity and submission, as the "ministers of the Sovereign their hearts had elected." (Eton.)

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For some months after the capitulation, Major-General Pigot was in charge of the civil as well as of the military affairs of the island. The management of the civil affairs was subsequently transferred to Mr. Charles Cameron, who had been appointed, under a Royal Commission, His Majesty's Civil Commissioner of Malta and Gozo.

Mr. Cameron, as I have already mentioned, in making arrangements for the conduct of the civil affairs of Malta, availed himself largely of the services of Mr. Eton, who, at bis instance, made a carctul examination into the laws and public records of the islands and prepared an abstract of the Code de Rohan. "Code de Rohan and the laws since made by the decrees of Hompesch, by Sir Alexander At puge 153 Mr. Eton writes: -“The Ball, as Governor during the blockade, and by Mr. Cameron and Sir Alexander Ball as Civil Commissioners, are the only rule of justice and the lex scripta actually in force. (1807.)

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The Code de Rohan is divided into 8 books, containing 434 pages of small folio. "The greater part of the matter regards the military and naval regulations of the order and Bulls of the Pope, and many other things, which have no relation to the present state of the island.'

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On the negotiation of the peace of Amiens (1802) it was arranged, without consulting the Maltese, that the British troops should evacuate Malta, and that it should be restored to the government of the Knights of St. John of Jerusalem, that it should be guaranteed as neutral territory under the joint protection of Great Britain, France, Russia, Spain, Austria, and Prussia, and stipulations to this effect were embodied in the 10th article of the Treaty of Amiens, 22nd March 1802.

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The Maltese people strenuously protested against being again placed under government of the knights, and urged their being incorporated in the British Empire,

Their opposition, combined with a well-grounded apprehension that the French contemplated making use of Malta to the detriment of British interests, and the absence of the securities for the independence of Malta which was contemplated by the treaty, induced the English Government to defer the evacuation of the island. ultimately to the declaration of war with France, on the 18th May 1803. During the remainder of the great French War, the islands were governed by Mr. Cameron, Sir Alexander Ball, and Lieut-General Sir J. Oakes, in succession, as His Majesty's Civil Commissioners, and in October 1813 Sir J. Oakes was succeeded by Sir Thomas Maitland, as the first Governor of Malta.

This led

During the early years of the British occupation the leaders of the Maltese repeatedly, und Mr. Eton on their behalf, urged on the British Government the restoration of their Constitutional Assembly, with power for it to legislate on the local affairs of the islands. For reasons of State this request was refused, and from 1801 to 1913 the legislative power was vested solely in His Majesty's Civil Commissioners, who issued laws under the term of "Bandos.”

By the seventh article of the Treaty of Par's, May 30, 1814, Malta was ceded to Great Britain unconditionally, and without consulting the Maltese, in the following terms: "The Island of Malta and its dependencies shall belong in full right and sovereignty to His Britannic Majesty."

This treaty was confirmed by the 11th Article of the Convention between Great Britain and France, November 20, 1815.

Malta has ever since continued to be a Crown Colony of Great Britain.

From 1813 to 1836 all legislative power was vested in the Governor. In 1836 a Government Council composed of officials was established. In 1849 certain elected members were added to it, and in 1884 this number was increased. The functions of the council are to pasa local ordinances for the Colony.

as His Majesty's Civil Commissioner, on the 15th of July 1801.

Of the proclamations issued after the capitulation, two only appear to have any bearing on the Maltese marriage question. One of these was issued by Mr. Cameron, The other was issued

as a minute, by Sir Thomas Maitland, as Governor, dated October 5th, 1813

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