CO885-(13-15) — Page 188

PUBLIC RECORD OFFICE

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C.O. 8

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• 885

13 PUBLIC RECORD OFFICE, LONDON

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

The material words in Mr. Cameron's proclamation are: full protection, and the enjoyment of all your dearest rights. He will protect your "His Majesty grants you churches, your holy religion, your persons, and your property." (Eton.)

The material words in Sir Thomas Maitland's minute are those in which he expresses "His Majesty's gracious determination henceforth to recognise the people of Malta and "Gozo as subjects of the British Crown, and as entitled to its fullest protection;" and further," that it would be his duty, in carrying into effect his Royal Master's benevolent "instructions on this head, to secure to the Maltese, in the fullest manner, the free exercise of their religion, to maintain the eclesiastical establishment, to make such improvements in the laws themselves as past experience or change of circumstances may have rendered necessary and advisable; and, in short, to adopt every measure "that is requisite to secure to the inhabitants a full share of that happiness, wealth, security, and pro-perity, enjoyed by all the subjects of the British Empire in every part of the world.'

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The question in this part of the case is, whether "the assurances to protect the Churches, and the holy religion of the Maltese, and to secure to them in the fullest manner the free exercise of their religion and to maintain their ecclesiastical ...“ establishment" contained in these two prociamations, involved this country in an immutable engagement, to enforce on British Roman Catholic subjects in Malta the law of the Church of Rome in relation to marriage, by which law a Roman Catholic is not permitted to marry a Protestant, except upon two conditions:

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1. That the permission of the Pope to the marriage be obtained.

2. That the parties will take an path that the children of the marriage shall be brought in the Roman Catholic faith.

The best way of testing the soundness of this claim is to suppose a case, Catholic lady, being a British subject resident in Malta, wishes to

If a Roman there without asking the permission of His Holiness, and without entering into an marry a Protestant engagement on oath that the children of the marriage shall be brought up in the Roman Catholic faith, and for that purpose determines to be married in a Protestant church in Malta, why should she not be at liberty to do so? How does her doing so deprive other Roman Catholic Maltese of the enjoyment of the free exercise of their religion? Can it be said that the Governor, by granting her a licence to be married in a Protestant church, is violating the assurance given to protect the holy religion of the Maltese.

Upon this part of the case, I have the honour to report to your Grace—

1. That the words used in these two proclamations, taken in their ordinary and natural sense, do not convey the meaning attributed to them by the Crown Advocate, and do not import that the Government are under an engagement to enforce this particular marriage law in the manner suggested.

2. That the action of Sir Thomas Maitland, in whose proclamation the words relied on occur, by granting from time to time licences for mixed marriages in the Government chapel from 1813 to 1824, is strong contemporaneous evidence that he did not attribute to these words the meaning now sought to be attached to them.

3. That the continuity of the granting of licences for mixed marriages by the Civil Commissioners and Governors for nearly 90 years, afford a strong contemporanea expositio against the suggested interpretation.

4. That the British nation were the grantors, and the Maltese nation the grantees, of the alleged privileges in relation to the enforcement of the Roman Canon Law and that it must be in the power of any of the Maltese grantees to waive their individual claim to the enjoyment of the supposed privilege, and that the other grantees have no right to object to their doing so. (Ruding v. Smith, 2 Haggard's Consistory Reports, p. 379.) 5. That if the words in question be capable of bearing the meaning suggested by the Crown Advocate, the further question arises, namely whether it is competent to the Sovereigu on acquiring fresh territory by conquest or cession, to engage that British subjects resident therein shall be precluded from entering into the civil contract of marriage within the territory, except they receive the Pope's permission to do so, the children of the marriage shall be educated in the Roman Catholic faith.

and engage that Two rules applicable to this point are deducible from the cases— 1. That where the laws and customs of a conquered country are contrary to the laws of God, or to our religion, the laws of the conqueror prevail.

Thus, on an appeal to the King and Council from the Foreign Plantations, it was determined by the Lords of the Privy Council, on August 9th, 1722, “that where the King of England conquers a country, he may impose upon the inhabitants what laws he pleases, but until he gives them new laws they are governed by their own laws, "unless where these laws are contrary to the laws of God, or to our religion, or enact

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"a malum in se, or are silent; for in all such cases the laws of the conquering country "shall prevail." 2 Peere Williams' Reports, p. 75.

2. That where any of the laws of the conquered country are contrary to the fundamental principles of the British Constitution, it is not competent to the Sovereign to engage to impose them upon British subjects in that territory."

This rule is deducible from two cases.

(1.) That of Fabrigas v. Mostyn (20 State Trials). General Mostyn, the Governor of Minorca, wus sued in 1773 for damages in the Court of Common Pleas for having wrongfully imprisoned and banished Fabrigas from Minorca without trial, on the ground of his having been implicated in a civil commotion. Minorca had been acquired by England by conquest from Spain in 1708, and was ceded to it under the Treaty of Utrecht (1713), subject to the stipulation that the islanders should have the free enjoyment of their religion, of their customs, and of their property.

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Prior to its conquest, banishment and torture were, by the law of Minorca, legal punishments. Justice Gould, in summing up to the jury (who found for the plaintiff with 3,000l. damage) said: "Where a conquest is made of a Christian country, until the "Crown promulgates laws amongst them, they are governed by their own laws, but

both natural principles and equity ought to govern such a trust." On a motion for a new trial Chief Justice de Grey said,

20 State Trials, 162. banishment was the old law of Minorca, which fell, of course, when it came into our "Torture as well as possession. Every English Governor knew he could not inflict the torture. constitution of this country put an end to this idea," 20 State Trials, p. 181. Again in General Pictou's case (30 State Trials, p. 861) the same question was raised. But in this case, at the time of the surrender, in 1797, to England of Trinidad (a Spanish settlement), torture for the purpose of extracting evidence from a witness was enjoined by the law of the island, and there was an express stipulation on its surrender for the continuance to the inhabitants of their laws and customs. Torture was resorted to in one case for the purpose of extracting evidence under a Governor's order, made by legal advice. For this the Governor was indicted in the King's Bench for a misdemeanour. It was argued, with much cogency, that the stipulation for the continuance of the laws of Trinidad could not include in it the law of torture, as this was incompatible with the fundamental principles of the British Constitution, and that the terms of surrender, therefore, afforded no answer to the action. The court never gave final judgment in the case, but Lord Ellenborough, in summning up to the jury on the second trial, spoke approvingly of the doctrine enunciated by Chief Justice de Grey.

I have the honour to report to your Grace that it was not competent to Mr. Cameron or to Sir Thomas Maitland to stipulate in the name of their Sovereign for the enforcement of the conditions now imposed upon parties to mixed narriages by the Church of Malta on the grounds-(1) That such stipulations are contrary to our religion as a Protestant country; (2) That it is contrary to the fundamental laws of this country in relation to liberty of conscience and the natural rights of marriage; (3) That in many cases it would inflict torture to the minds of British subjects as objectionable in principle as the infliction of torture to the body, and so would come within the principle of the ruling of Chief Justice de Grey in Fabrigas v. Mostyn.

Again, assuming that the words in the proclamations did refer to the law of marriage in Malta, they could only refer to the then existing law of marriage, and not to any future law of marriage that might be imposed upon Malta by the See of Rome.

The regulations now imposed on parties to mixed marriages in Malta by the See of Rome, are of modern introduction, and their addition to the Maltese marriage law is fatal to the claim for the enforcement of the alleged original engagement. What the Government is asked to do now, is to give effect to a new marriage law,-not to the old marriage law of Malta referred to, as it is alleged, in the proclamations of 1801 and 1813.

Having now furnished your Grace with a report of the facts of, and of certain legal principles of law applicable to, this case, I will proceed to report to your Grace the several grounds on which the invalidity of the mixed as well as of the unmixed marriages in question are sustainable in law.

I will report first as to the validity of the mixed marriages celebrated in Malta since the British occupation by the clergy of the English Church, and secondly, as to the validity of the mixed marriages celebrated by the ministers of the Presbyterian Church since 1848 and by the Wesleyan ministers since 1869.

A 61207-30.

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