CO885-(13-15) — Page 189

PUBLIC RECORD OFFICE

TITT

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C.O.8

885

13 PUBLIC RECORD OFFICE, LONDON

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I. Upon the first question I have the honour to report to your Grace that all marriages, whether mixed or unmixed, which have been celebrated in Malta by the clergy of the English Church since the British occupation are valid in law on each of the several following grounds :—

(1.) It is a rule of the law of England that a British subject when he goes to a British colony or settlement, or to a heathen or Mahometan country, carries with him his common law rights, in so far as they may be applicable, in regard to the celebration of the contract of marriage, see Lautour v. Teesdale, 8 Taunton's Reports, p. 830 (1816); Ruding v. Smith, 2 Haggard's Ecclesiastical Reports, p. 371.

It is an undisputed rule of English law that a marriage celebrated in England or Ireland by a minister in episcopal orders is a valid marriage at common law.

It is also a rule of English law, that the marriage of a British subject celebrated in a British Crown Colony, by a minister in holy orders, is a valid marriage. See the decision of Sir Cresswell Cresswell in the case of the Countess of Limerick v. the Earl of Limerick, 4 Swabey and Tristram, p. 252.

The common law right as to marriage is applicable to Malta în a remarkable degree. It

that the marriage of Protestant British subjects cannot be celebrated by appears the priests of the Established Church of Malta without the permission of his Holiness the Pope, and that if they desire to marry a Roman Catholic British subject, without taking an oath, that the children of the marriage shall be educated in the Roman Catholic faith.

I take it to be an incontrovertible rule of the law of England that British subjects who are not precluded by age or by some other lawful impediment from inter-marrying, are entitled to claim as of right to enter into the natural or civil contract of marriage in a legal form in every part of the British Empire, unfettered by such conditions as are imposed upon them by the Established Church of Malta.

1. I have, therefore, the honour to report to your Grace that all the marriages, whether mixed or unmixed, which have been celebrated by the English clergy in Malta since the British occupation, are valid by the common law of England, and are, on this ground alone, entitled to be recognised as valid marriages throughout the British Empire.

2. I have also the honour to report to your Grace that such of these marriages, whether mixed or unnixed, as have been celebrated by a license granted by the Chief Civil Commissioners or Governors of Malta are valid in law on this further ground, that they were celebrated under the authority of a license granted by the representative in the Colony of the Sovereign of this country, in accordance with an approved usage and practice which has been observed in our Indian, Colonial, and other foreign settlements for upwards of three centuries.

By a custom which has been in existence since the reign of Her Majesty Queen Elizabeth, all the clergy and lay members of the Church of England outside of the British Isles, whether in our Indian, Colonial, or other settlements or in foreign parts, are under the episcopal charge of the Bishop of London, in matters ecclesiastical, until they have been placed under the charge of another Episcopa! Protestant bishop.

The Bishops of London have never had jurisdiction to issue licenses for the celebration of marriages outside of the local diocese of London, and it was therefore considered necessary at the commencement of the establishment of our Indian and Colonial Empire that there should be some recognised practice established in regard to the celebration of marriages in those parts. This led to the introduction of the practice of our Indian and Colonial Governors, as representing the Sovereign, granting licenses for the celebration of regular marriages within their respective jurisdictions until their duty in this respect was supplied by the erection of episcopal sees in connexion with the Church of England within their jurisdictions. The practice was found a convenient one, and marriages celebrated under such licenses have been recognised by our courts of law, and in all official matters as valid in law, for three centuries.

In Malta the sole power of legislation was rested in the Civil Commissioners and the Governors from 1800 to 1836. During these 36 years, every license for a marriage granted by a Civil Commissioner or a Governor would, I take it, have the same force and effect as a private Act of Parliament would have in this country. Since the transference of the legislative powers from the Governor to the Council the practice of the Governor issuing marriage licenses has been continued without objection taken, and the Governor, as representing the Crown, has always been considered the proper authority to issue such licenses, and I know of no valid ground for objecting to the legality of the Governor's licenses issued since 1836.

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8. I have further the honour to report to your Grace that all military marriages celebrated by the English clergy under the permission of the commanding officers of their regiment in Malta are, by virtue of such permission, valid in law.

The offices of Commander-in-Chief and of Governor of Malta have since 1813 been united in the same othcer. The commanding officer, who grants the leave or license to marry, is subordinate to the Governor and Commander-in-Chief. His authority to give the leave or license is derived from the Commander-in-Chief and Governor, and he must be taken to have acted in this matter as his deputy, and his act must be taken to be valid as an act done under authority derived from the Governor.

(4.) I have further the honour to report to your Grace that all marriages celebrated by the English clergy in Malta between 1843 and November 1873, either by license from the bishop or by bunns, are valid in law under Her Majesty's Letters Patent dated, 21st August 1842, establishing the bishopric and diocese if Gibraltar, within which diocese Malta is by the Letters Patent specially included.

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By the Letters Patent Her Majesty declared, "that the first Bishop of Gibraltar (Dr. Tomlinson) and his successors, having been named and appointed by Us, Our heirs and successors, and by the Archbishop of Canterbury as Metropolitan of the said "See of Gibraltar con-ecrated, may perform all the functions peculiar and appropriate "to the office of bishop within the cathedral church of the Holy Trinity in Gibraltar "and the said diocese of Gibraltar, and within all churches, chapels, and other places within our island of Malta and its dependencies, which now are, or may hereafter be, founded, set apart, or used for the service of Almighty God according to the ritual of the United Church of England and Ireland, and also himself or themselves, or by the Archdeacon or Archdeacons or the Vicar-General, or other officer or officers herein-after "named, exercise jurisdiction, spiritual and ecclesiastical, within the said cathedral church "and throughout the said diocese of Gibraltar, and also within the churches, chapels, " and other places aforesaid in the suid island of Malta and its dependencies, according "to the ecclesiastical laws now in force in England, with power to appoint a chancellor "and to delegate to him such of the powers and functions to the said bishop appertaining may by the ecclesiastical laws of this realm be committed to persons who have not "received episcopal ordination."

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By these Letters Patent the former Bishops of Gibraltar were entitled, by themselves, their archdeacons or chancellors, or other officials lawfully appointed, to exercise jurisdiction, spiritual and ecclesiastical, throughout the diocese of Gibraltar and within all churches, chapels, and other places within the island of Malta and its dependencies founded, set apart, or used for the service of Almighty God, according to the ritual of the United Church of England and Ireland, according to the ecclesiastical laws then in force in England.

By the ecclesiastical laws in force in England at the time of the granting of these Letters Patent in 1842, the bishops in England were entitled by their chancellors (as they still are) to grant licenses for the marriages of persons in all consecrated churches and public chapels in their diocese, whether the parties to the marriage were members of the Church of England, or Roman Catholics, or Nonconformists.

By the Canon Law bishops are entitled to give a dispensation when not prohibited from so doing. The right of bishops to grant marriage licenses followed upon this rule. The jurisdiction of bishops in England to grant marriage licenses is referred to in Canon 11 of the Canons of Westminster, A.D. 1200. Again, in a constitution of Archbishop Mepham, A.D. 1328, and by a constitution of Archbishop Zouche, A.D. 1347, the bishop's right to grant licenses dispensing with the publication of banns is distinctly laid down (see 2 Johnson's English Canons, pp. 91, 352, and 410), and this right was reserved and confirmed to the bishops by 25 Henry VIII. cap. 21. sec. 15, and it was then vested in them as a statutable as well as a canonical right.

The authority to issue licenses for mixed as well as for unmixed marriages is vested in the Bishops of Gibraltar for the time being by these Letters Patent until revoked, and the marriages celebrated under such licenses have, by virtue of these Letters Patent, validity in law.

Since the consecration of the two Anglican churches in Malta banns have been accustomed to be published in them in accordance with the rubrics in the Prayer Book, and after such publication of banns, murriages have been celebrated in those churches without a license.

The publication of banns in churches in England, when not dispensed with by license prior to the celebration of a regular marriage, was required by Canon 11 of the Canons of Westminster, A.D. 1200, and by subsequent archiepiscopal constitutions directions relating to their publication, copied from these constitutions, were inserted C 2

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