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with the importance of reconsidering the effect of the rule laid down by the House of Lords The Queen v. Millis" in relation to marriages in the Colonies and in foreign parts. "I am not disposed," he said, "to carry the decision in that case one iota further than "it went, for two reasons-first, as the Law Lords were divided it
consequence of the form in which that case came before them there that it would be was only in considered to be a judgment at all; in the second place, were I to hold the "of a priest in the orders of the Church of England to be necessary, I should be going presence the length of depriving thousands of couples married in the Colonies and in the East Indies (where till of late years there were no chaplains) of the right to resort to this "court for such redress as it can give in cases of cruelty and adultery. And till I am "controlled by a superior authority-for no further examination will induce me to change my opinion-most unquestionably I shall hold in this and in all similiar cases that where there has been the fact of consent between two parties to become man " and wife, such is a sufficient marriage to enable me to pronounce, when necessary, a decree of separation. Accordingly 1 pronounce for the separation now prayed." 2 Robertson's Ecclesiastical Reports, pp. 582, 583.
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On this question, Lord Stowell in Ruding v. Smith observes: "It being the practice "of mankind to consecrate their marriages by religious ceremonies, the differences of religion, in all countries that admit residents professing religions essentially different, unavoidably introduce exceptions, in that matter, to the universality of that rule which "makes mere domicile the constituent of an unlimited subjection to the ordinary law "of the country. The true statement of the case results to this, that the exceptions, "when admitted furnish the real law for the excepted cases; the general law steers "wide of them." Again: "Nobody can suppose that whilst the Mogul empire existed an Englishman was bound to consult the Koran for the celebration of his marriage. Even "where no foreign connexion can be ascribed, respect is shown to the opinions and practice of a distinct people. The validity of a Greek marriage in the extensive dominions of Turkey is left to depend, I presume, upon their own canons, without any "reference to Mahometan ceremonies. There is a jus gentium upon this matter-a comity, which treats with tenderness, or at least with toleration, the opinions and usages of a distinct people in this transaction of marriage." 2 Haggard's Ecclesiastical Reports, p. 384, 386.
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On the question arising in this branch of the case, I have the honour to report to your Grace that the validity of the marriages of British subjects celebrated in Malta by Presbyterian and Wesleyan ministers might, on the grounds referred to by Lord
Stowell and Dr. Lushington in the passages above cited from their judgments, be sustained as having been celebrated in a manner binding by the Canon Law and by the jus gentium in a British Colony, where the lex loci contractûs was inapplicable to the case as well as their common law right, as limited by the decision by the House of Lords in "The Queen v. Millis," and in regard to Scotch marriages it might be argued that they are valid under the Act of Union of the two countries.
I have the honour to report to your Grace that during my inquiries in this matter I have received assistance from the officials in the Colonial Office and from Her Majesty's Attorney-General, and that in my communications with those who represent the interests of the Episcopalian, Presbyterian, and Wesleyan communities in Malta there has been an expression of unmixed satisfaction that your Grace had not only directed the attention of Her Majesty's Government, in the debate in the House of Lords in July last, to the painful and unfair position in which they would be placed by the proposed marriage legislation both as regards the past and future, but had also undertaken, on the suggestion of Her Majesty's Chief' Secretary of State for the Colonies, to submit to his Lordship a statement of the facts and law of the case for the consideration of Her Majesty's Government.
During my inquiries in this case it has also come to my knowledge that strong objections are entertained to this matter being relegated to the local council or to the High Court of Malta for determination.
The Government Council, as at present constituted, is composed of 20 Roman Catholic members and of one Protestant member only, the Governor.
His Holiness the Pope has already pronounced mixed marriages celebrated in Malts, past and future, by ministers of any religion other than by those of the Roman Catholic Church to be invalid, and it is urged that under such circumstances the Roman Catholic members of the council cannot be expected to approach the consideration of the subject with unbiassed minds.
The Court of Malta is composed exclusively of judges who are members of the Roman Catholic Church. The Chief Justice (Sir Adrian Dingli) has already advised
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that the mixed marriages are illegal, and I have before me the report of a trial of an action of breach of promise of marriage in Her Majesty's Civil Court of Malta, which took place on the 24th of September last, in which the plaintiff was a Maltese Roman Catholic and the defendant a Protestant soldier. plaintiff not having obtained a dispensation for marriage from the Holy See, it was held The promise was proved, but the not to be a legal promise by the Maltese law, and the action was dismissed.
The marriages in question having been celebrated in Malta under the authority and by the action of the representative of the Sovereign of this country for a period of nearly 90 years, the members of the Protestant communities feel, and feel strongly, that they have a claim on Her Majesty's Government to protect them from the attempts that are being made to throw aspersions upon the validity of such marriages and upon the legitimacy of the issue of these marriages, which they believe to be. unwarranted in law, as well as from any legislation which would render the celebration of such marriages in future illegal.
They consider that it is a question which, in fairness to those interested in upholding those marriages, should he left to the determination of an Imperial Court or be dealt with by the Imperial Legislature, and not by the local courts or local council of Malta. It would seem, moreover, to accord with the fitness of things that the meaning and force of the terms of the capitulation and cession of Malta to Great Britain should be left to the arbitrament of an Imperial Court or of the Imperial Parliament and not to that of the civil courts or local council of the ceded country, whose representatives were neither parties to, nor yet were they consulted as to, the terms upon which the capitulation and cession should be made.
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It would appear that this question might be referred, if it were deemed advisable by Her Majesty, to the Judicial Committee of Her Majesty's Privy Council for considera- tion and advice, under section 4 of 3 and 4 William IV., cap. 41, which enacts, "That it shall be lawful for His Majesty to refer to the said Judicial Committee for hearing or consideration any such other matter whatsoever as His Majesty shall think fit, and "such Committee shall thereupon hear and consider the same and shall advise His
Majesty thereon in manner aforesaid."
It would appear also that a final settlement of the question might be effected by an Order of Her Majesty in Council issued to Malta as being a Crown colony, or by an Act of the Imperial Parliament, not withstanding the Colonial Marriage Act of 1865 (28 & 29 Vict. cap. 64.) under the saving proviso in section 2 of that Act.
His Grace
I have, &c., (Signed) THOMAS H. TRISTRAM.
The Lord Archbishop of Canterbury,
MIXED MARRIAGES.
Copied from Registers at St. Paul's Church (Anglican), 1862 to March 1890.
No.
Date of Marriage.
Register No. 5.
Bridegroom.
75 April 1, 1862 Sloper 84 July 29, 12 Andrews 80 Sept. 6, May 113 July 25, Sept. 17,
106
Bride.
B.- Banus. L.- License.
Public Registry Office.
Zammit Castagna
B.
L,
Entecott
Foraci
B.
18, 1863
"
Millard Grinter Jones
Castagna
Carmela Singers
29
Celia
B.
121
Register No. 6.
Dec.
1, 1863
Wadsworth
Coleiro
B.
Jan.
26, 1864
13
March 2,
Hayes Jeffery
Coleiro
L.
Falzon
L.
""
14
" 14,
22
McCartney
Rose Benan
22,
Martin
Mamo
"
April
9.
Davison
Cushia
23
13,
19
Harding
Tanti
June
9,
Meakin
Chetcuti
July 11,
Nixon
Aquis
11
Aug. I,
Grimason
Camilleri
""
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