CO885-(13-15) — Page 190

PUBLIC RECORD

OFFICE

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Reference :-

C.O.885

13 PUBLIC RECORD OFFICE, LONDON

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in the rubrics of all our Prayer Books for the information of the clergy and the people, and the rubrics being incorporated in the Acts of Uniformity gave the publication of banns statutable authority. There was no occasion to refer in the rubrics to marriage licenses, as the right of the bishops and their officials to grant them had been reserved and confirmed to them by Statute prior to Ed. VI.'s first Act of Uniformity, namely, 25 Henry VIII. cap. 21. sec. 15.

The Anglican churches having been consecrated, and being, as well as the ministers thereof, subject to the provisions of the Letters Patent creating the See of Gibraltar, so long as the Letters Patent were in force banns might be published and marriages celebrated in them in like manner as in churches in England.

By Royal Letters Patent dated the 15th of November 1873, the Letters Patent of the 21st of August 1842 establishing the bishopric of Gibraltar were revoked, and Bishop Harris, who had been appointed Bishop of Gibraltar by Her Majesty the Queen by Letters Patent, having resigned, Bishop Sandford, his successor, was not appointed by the Sovereign or by Letters Patent, but Her Majesty issued a Royal Mandate under Her Majesty's seal and sign manual, to the Archbishop of Canterbury, authorising his Grace to consecrate Bishop Sandford a bishop without naming where he was to execute his episcopal functions, and the archbishop, under the mandate, consecrated him to be bishop of the diocese of Gibraltar in the place of Bishop Harris.

In consequence of the revocation of the Letters Patent by which the See of Gibraltar was established, Bishop Sandford declined (and rightly so) to issue licenses for marriages as his predecessors had done, and the Governor thereupon resumed the practice of granting marriage licenses for the celebration of marriages in the Anglican churches. The right of Bishop Sandford's predecessors to issue marriage licenses devolved upon them under the Letters Patent creating the See of Gibraltar. A bishop of a see in India or in the Colonies established and subsisting under Royal Letters Patent, whether consecrated under Letters Patent, or Royal Mandute, is ex officio entitled of himself or his officials to grant marriage licenses in like manner as an English bishop is, but his right to do so will terminate on the revocation of the Letters l'atent creating the see. It might also be held that any right to publish banns in these churches acquired under the Letters Patent would terminate with their revocation.

A further effect of the Letters Patent establishing the See of Gibraltar would be the revocation of any privileges granted by the proclamations of 1801 and 1813, relied on by the Crown Advocate, at variance by the rights conferred by these Letters Patent,

5. I have further the honour to report to your Grace that all marriages celebrated by the English clergy in Malta since the British occupation are valid by the lex loci contractûs, i.e., the law of Malta (1.) They are valid either under the Code de Roban, if the last clause in cap. I. of book II. relates to the form of celebrating marriages, for it appears that these marriages have been celebrated in the presence of two witnesses, and the parties and witnesses have been in the practice of signing the registers or certificates.

If this clause in the Code de Rohan does not refer to the form of the celebration of marriages in Malta, there has been no abrogation of the Canon Law relating to irregular marriages, and these marriages would therefore be valid under the Canon Law, as sponsalia per verba de præsenti.

general law

6. They are also valid under the customary law of Malta. By the Maltese law, an exception may be created to or engrafted on a by continued and approved usage or custom, called “abrogativa consuetudo.'

Mixed marriages have been now celebrated for nearly 90 years, Governor's licenses have issued authorising their celebration during the whole of that period; in all public transactions in life, these marriages have been accepted by official authorities as valid marriages; public and private moneys have been paid on the faith of their validity, and in no case, until within the last month, has any court in Malta or elsewhere pronounced against their validity, so that it would be difficult to produce stronger evidence in support of an abrogativa consuetudo, than that furnished in the present case.

II. I have now the honour to report to your Grace, on the validity of the mixed marriages celebrated in Malta by the Presbyterian and Wesleyan ministers.

It is to be noted that they have been celebrated only under the authority of licenses granted by the Governor, and that marriages by the Presbyterian ministers have now been celebrated for 42 years, and by the Wesleyan minister for 21 years.

It is to be noted also that their practice of celebrating marriages in its very inception received the sanction of the Governor by himself granting the licenses.

Their validity may be supported on the four following grounds:

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(1.) That they were celebrated under the authority of licenses issued by the Governor as the Queen's representative in Malta,

(2.) That they are valid by the lex loci contractûs, either under the Code de Rohan or as irregular marriages under the Canon Law, upon the same grounds as are the marriages by the English clergy.

(3.) That they are valid by usage and custom under the Maltese Law (abrogativa consuetudo), the Presbyterian marriages having been celebrated for 42 years and the Wesleyan marriages for 21 years publicly and continuously without objection taken and under the Governor's sanction.

(4.) There remains the further consideration as to whether the validity of these marriages can be sustained on the ground that they have been contracted in a British Colony under circumstances which would render the common law rule as narrowed down by the decision of the House of Lords in " The Queen v. Millis" inapplicable.

Prior to the judgment of the House of Lords in that case they would "undoubtedly have been held to be valid.

For 250 years previously it had been invariably held in the ccclesiastical courts, in our Colonial and Indian courts, and repeatedly by the High Court of Delegates, the final court of appeal in all ecclesiastical causes, and in all causes froin the Colonies and India, and affirmed by such great authorities at common law as Bracton, Lord Coke, Sir Matthew Hale, Lord Holt, Chief Baron Comyn, Lord Hardwicke, Justice Blackstone, Lord Mansfield, Lord Kenyon, Sir Vicary Gibbs, Lord Ellenborough, Lord Tenterden, and Lord Wynford (see Lord Denman, 10 Cl. and Fin. 821), that clear proof of mutual declarations of the parties of their intention to live as mau and wife constituted a good irregular marriage by the Canon Law, and would also establish a valid marriage at common law, and large amounts of property had from time to time passed under these decisions.

It was also an accepted rule of law that British subjects carried with them into our Colonies, India and all heathen and Mohamadan countries, and into foreign countries whose marriage laws were such as British subjects could not be expected to adopt, their common law rights as to marriage, in so far as they were applicable and that if in such countries they contracted a marriage in a form valid by the common law of England it should be held as valid throughout the British Empire.

The decision in "The Queen v. Millis" in effect so narrowed down this last rule as

to deprive it to a great extent of its practical value and utility to British subjects.

As to what would constitute a valid marriage at common law in England or in Ireland is a question for the House of Lords to determine, as the final court of appeal in al causes in England and Ireland and our Colonial courts, and the Judicial Committee would, I presume, accept the law as laid down by the House of Lords on this point as binding on them.

The prized value of a common law right is, that when denied to a British subject it is enforceable by the strong arm of the law.

Thus in England if a clergyman of the Established Church were to refuse to marry parties legally competent to intermarry, and who were by the law of the church entitled to be married in the church of which he was the officiating minister, on the ground that they declined to submit to conditions sought to be imposed upon them by him in regard to the religious education of the children of their marriage, they would have a remedy against the clerk by a suit in the ecclesiastical courts, by a writ of mandamus, and further, by an action for damages at common law.

It is of small concern to a British subject to carry about with him this common law right as to marriage into countries in which it is unenforceable, as happens in all countries in which there is no established church, and in some, as in Malta, in which there is. Where the common law right is unenforceable can it be said to be applicable ? If it is inapplicable, is a British subject to be debarred from entering into the civil contract of marriage in a Colony or in a foreign country by the laws of which legal or religious difficulties are imposed upon him inconsistent with his common law and natural rights? Assuming the opinion of the Crown Advocate to be correct, what is the position in Malta of a Presbyterian or Wesleyan desirous of being married there? married by a priest of the Established Church without the permission of the Pope, and, if one of the parties to the marriage is a Roman Catholic, except upon the condition that He cannot be the children of the marriage shall be educated in the Roman Catholic faith, and he cannot compel a clergyman of the Church of England to marry him, not being a member of that church, and that church not being the Established Church of the islands.

Dr. Lushington, speaking, with his unrivalled experience in this branch of the law, on the hearing of Cattrall v. Cattrall, in the Consistory Court of London in 1847, was pressed C 3

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