Papers respecting mixed marriages

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<ul><li><p>Papers respecting mixed marriages.Source: Foreign and Commonwealth Office Collection, (1891)Published by: The University of Manchester, The John Rylands University LibraryStable URL: http://www.jstor.org/stable/60232000 .Accessed: 15/06/2014 09:34</p><p>Your use of the JSTOR archive indicates your acceptance of the Terms &amp; Conditions of Use, available at .http://www.jstor.org/page/info/about/policies/terms.jsp</p><p> .JSTOR is a not-for-profit service that helps scholars, researchers, and students discover, use, and build upon a wide range ofcontent in a trusted digital archive. We use information technology and tools to increase productivity and facilitate new formsof scholarship. For more information about JSTOR, please contact support@jstor.org.</p><p> .</p><p>Digitization of this work funded by the JISC Digitisation Programme.</p><p>The University of Manchester, The John Rylands University Library and are collaborating with JSTOR todigitize, preserve and extend access to Foreign and Commonwealth Office Collection.</p><p>http://www.jstor.org </p><p>This content downloaded from 195.78.108.60 on Sun, 15 Jun 2014 09:34:19 AMAll use subject to JSTOR Terms and Conditions</p><p>http://www.jstor.org/action/showPublisher?publisherCode=manchesterhttp://www.jstor.org/stable/60232000?origin=JSTOR-pdfhttp://www.jstor.org/page/info/about/policies/terms.jsphttp://www.jstor.org/page/info/about/policies/terms.jsp</p></li><li><p>*^- \ </p><p>- i-- u ^ ^ \ J'^ </p><p>St'1 </p><p>PAPERS </p><p>RESPECTING </p><p>MIXED MARRIAGES. </p><p>r- - </p><p>This content downloaded from 195.78.108.60 on Sun, 15 Jun 2014 09:34:19 AMAll use subject to JSTOR Terms and Conditions</p><p>http://www.jstor.org/page/info/about/policies/terms.jsp</p></li><li><p>* I </p><p>vT </p><p>CeazzY, </p><p>This content downloaded from 195.78.108.60 on Sun, 15 Jun 2014 09:34:19 AMAll use subject to JSTOR Terms and Conditions</p><p>http://www.jstor.org/page/info/about/policies/terms.jsp</p></li><li><p>r </p><p>CONTENTS. </p><p>O. </p><p>i -' -',-' </p><p>P </p><p>,* </p><p>Secretary of State to Sir Henry Storks, 26. 7. 65. with 4 Enclosures, 1. Sir F. Rogers to Law- Officers, 15. 2. 65.2. Law Officers to Secretary of State, 28. 3. 65.3. Sir F. Rogers to Law Officers, 13. 4. 65.4. Law Officers to Secretary of State, 27. 4- 65. </p><p>Reverend J. Laverack to Chief Secretary, 24. 6. 90. Acting Chief Secretary Reverend J. Laverack, 30. 6. 90. </p><p>His Excellency the Governor, 3. 7. 90. Reverend J. Laverack, 5. 7. 90. Acting Chief Secretary, 16. 7. 90. Reverend J. Laverack, 19. 7. 90. Acting Chief Secretary, 22. 7. 90. Reverend J. Laverack, 28. 7. 90. </p><p>10. 90. 10.90. with 1 Enclosure, Sir Antonio Micallef's Letter, </p><p>without date. </p><p>Chief Secretary to His Excellency the Governor, 23. 10. 90. Chief Justice to Chief Secretary, 18. 3. 91. Chief Secretary Reverend Wisely, 19. 3.91. Reverend Wisely Chief Secretary, 23. 3. 91. Chief Secretary Reverend Wisely, 2. 4. 91. Reverend Wisely Chief Secretary, 3. 4. 91. </p><p>Reverend J. Laverack </p><p>Acting Chief Secretary Reverend J. Laverack </p><p>Acting Chief Secretary Reverend J. Laverack </p><p>Acting Chief Secretary Chief Justice to Chief Secretary, 23. Crown Advocate to 23. </p><p>Do. Chief Secretary </p><p>Do. </p><p>Do. 7. 4. 91. Reverend Wisely, 7. 4. 91. </p><p>Do. 7. 4. 91, with 4 Enc. 1. Licence and Sir A. Dingli's minute thereon, Advocate to Chief Secretary, 20. 11. 74,3. 20. 11. 74;4. Certificate from Public Registry. </p><p>Reverend Wisely to Chief Secretary, 9. 4. 91. </p><p>Application for a Marriage dated 20. n. 74.2. Crown Rev. Wisely to Sir A. Dingli, </p><p>Do. 18. 4. 91. Sir A. Dingli, 21. 4. 91. Reverend Wisely, 22. 4. 91. Reverend J. Laverack, 19. 3. 91. Chief Secretary, 23. 3. 91. Vicar General, 20. 3. 91. Chief Secretary, 24. 4. 91. Chaplain to Government, 19. 3. 91. Chief Secretary, 21. 3. 91. </p><p>Do. 18. 4. 91. Director of Public Registry to Chief Secretary, 8. 7. 91. (with 4 Enc- </p><p>Sir A. Dingli to the Chief Secretary, 8. 7. 91. </p><p>Sir A. Dingli Chief Secretary </p><p>Do. Do. </p><p>Rev. J. Laverack Chief Secretary Vicar General Chief Secretary Chap, to Governt. </p><p>Do. -4 Lists), </p><p>This content downloaded from 195.78.108.60 on Sun, 15 Jun 2014 09:34:19 AMAll use subject to JSTOR Terms and Conditions</p><p>http://www.jstor.org/page/info/about/policies/terms.jsp</p></li><li><p>This content downloaded from 195.78.108.60 on Sun, 15 Jun 2014 09:34:19 AMAll use subject to JSTOR Terms and Conditions</p><p>http://www.jstor.org/page/info/about/policies/terms.jsp</p></li><li><p>,v&gt; </p><p>Malta._ "No.~ "7 2. </p><p>Downing Street, 26th July, 1865. </p><p>Sir, </p><p>l o'M^h'485'65 * referred to the Law Officers of the Crown your despatch c!o. 13 Apni/65 (Separate and Confidential) of the 20th of January last and I enclose l.o. 27 April/65 copies of the correspondence arising out of that reference. </p><p>I also enclose a copy of an Act of Parliament which was passed under the advice of the Law Officers with the object of ensuring that Colonial Laws passed or to be passed with the object of giving validity retrospectively to informal Marriages should have their full effect </p><p>throughout Her Majesty's Dominions. </p><p>I consider the question now ripe for local legislation in Malta and shall be prepared to consider the draft of any Law which with the advice of your Crown Advocate you may consider proper to be sub mitted to the Legislative Council. </p><p>Such an Ordinance should make effectual provision for giving validity to Marriages contracted heretofore by formalities which the </p><p>parties believed to be binding and should define the mode of celebrating Marriages in cases where one or both of the parties are not Members of the Roman Catholic Church. </p><p>I doubt the expediency of endeavouring to interfere with the </p><p>existing law as it affects Roman Catholic Marriages. </p><p>I have &amp;c. </p><p>(Signed) Edward Cardwell. </p><p>Governor </p><p>Sir H. K. Storks, K.C.B..G.C.M.G. &amp;c. &amp;c. &amp;c. </p><p>This content downloaded from 195.78.108.60 on Sun, 15 Jun 2014 09:34:19 AMAll use subject to JSTOR Terms and Conditions</p><p>http://www.jstor.org/page/info/about/policies/terms.jsp</p></li><li><p>Enclosure No. 1. * </p><p>Sir F. Rogers to the Law Officers of the Crown. </p><p>Downing Street, 15th February, 1865. </p><p>T </p><p>Sir, </p><p>I am directed by Mr. Secretary Cardwell to enclose for the consideration of yourself, </p><p>{the </p><p>Solicitor General and Queen's Advocate, Attorney General and Queen's Advocate, Attorney General and Solicitor General, </p><p>the papers noted in the margin. </p><p>It appears that the marriage law of Malta is the Roman Canon Law but the Governor before the appointment of a Bishop, and the Authorities of the Anglican Church since that appointment, have exercised the power of issuing marriage licenses for marriages to be celebrated according: to the rites of the Church of </p><p>Gov. of Malta to Sec. of Statu 20th Jan. /65 Sep. &amp; Confidential with enclosures. Extract of private letter from Gov. to S. of State 31st Jan. 1865. Oov. to s. of state England. No. 38 June 10th /46 with Enclosures. j)- Would appear also that after the appointment of the Bishop marriages have Sth JuI^imJ' </p><p>' been celebrated by the Ministers of other Protestant persuasions (viz. presbyterian) l. o, to Coi. office sometimes with and sometimes without the license of the Governor. 10 Oct. 18-16. Gov. to s. of state The Governor is not and never has been authorised by his commission to issue "' ay ' Marriage licenses, nor is any such authority to be given to the Bishop by his No. 45 Juno 81848! Letters Patent. </p><p>You will see by one of the enclosures to Sir H. Storks's Despatch of the 20th of January 1865 that in the opinion of the Queen's Advocate of Malta a marriage celebrated according to Protestant forms is valid by the Law of Malta if both parties are Protestants but invalid if one of the parties is a Roman Catholic. </p><p>You will also observe that a reprehensible practice is growing up among persons desiring marriage of changing their religion in order to avoid the delays and obstacles interposed under various circumstances by the Ecclesiastical law of Malta. </p><p>Under these circumstances Mr. Cardwell desires to obtain your opinion on the following points. </p><p>1. Whether a marriage between two Protestants selemnized in Malta by Ministers and in conformity with the Laws or usages of the Religious Communion to which the parties, or one of them belong is a valid marriage according to the Law of England. </p><p>2. Whether the licence of the Governor or of any authority of the Anglican Church is necessary to the validity of that marriage. </p><p>3. Whether a marriage is valid if contracted between a Protestant and Roman Catholic according to the laws or usages of the persuasion to which the Protestant belongs with or without the license above mentioned. </p><p>4. Whether the present state of the Law calls for any Legislative interference prospective or retrospective on the part of the Imperial or Maltese Legislature and if so what is the nature of the legislation required. </p><p>I am &amp;c. </p><p>(Signed) F. Rogers </p></li><li><p>Enclosure No. 2. </p><p>The Lazv Officers of the Crown to Mr. Secretary Cardwell. </p><p>Lincolns Inn, March 28th 1865. </p><p>Sir, </p><p>se!'offstated* We are honored with your Commands signified in Sir Frederic 20Jan.is65. Sep. 8 Rogers' letter of the isth ultimo, stating that he was directed by you Conf. &amp; Enclosures. J J Extract of private to enclose ior our consideration the papers noted in the margin. eoTOrnoTtoSec. Sir Frederic Rogers was also pleased to state that it appears that </p><p>* Bijan^iseo. Gov. the Marriage Law of Malta is the Roman Canon Law; but that the </p><p>no8as. 10.Tun1?i8 Governor before the appointment of a Bishop, and the Authorities of and Enclosures. tjie Anglican Church since that appointment, have exercised the power Lawnofficer.-,ce </p><p> of issuing Marriage Licenses for Marriages to be celebrated according </p><p>o'fflcerstrcoi. oft.to tne Rites f the Church of England. And that it would appear also, 10 Oct. isle. t}iat after the appointment of the Bishop, Marriages have been celebrated suto.0 </p><p>e' by the Ministers of other Protestant persuasions, (viz. Presbyterian) </p><p>see of state toVo'v sonietimes witn&gt; and sometimes without, the license of the Governor. N0.45.8Junei84s. And that the Governor is not, and never has been, authorized by his </p><p>Commission to issue Marriage Licenses, nor is any such authority given to the Bishop by his Letters Patent. </p><p>Sir Frederic Rogers was also pleased to state that we should see, by one of the Enclosures to Sir H. Storks' Despatch of the 20th of </p><p>January 1865, that in the opinion of the Queen's Advocate of Malta a </p><p>Marriage celebrated according to Protestant forms is valid by the Law of Malta if both parties are Protestants, but invalid if one of the parties is a Roman Catholic. And that we should also observe that a repre hensible practice is growing up among persons desiring Marriage, of </p><p>^ changing their religion in order to avoid the delays and obstacles inter </p><p>posed under various circumstances by the Ecclesiastical Law of Malta ; And that under these circumstances you desired to obtain our </p><p>opinion on the following points : </p><p>1. Whether a Marriage between two protestants solemnized in Malta by Ministers, and in conformity with the Laws or usages of the Religious Communion to which the parties or one of them belong, is a valid Marriage according to the Law of England </p><p>2. Whether the License of the Governor or of any authority of the Anglican Church is necessary to the validity of that Marriage </p><p>3. Whether a Marriage is valid if contracted between a Protestant and Roman Catholic according to the laws or usages of the </p><p>persuasion to which the Protestant belongs with or without the license above mentioned </p><p>4. Whether the present state of the Law calls for any Legis lative interference, prospective or retrospective, on the part of the </p><p>Imperial or Maltese Legislature; and if so, what is the nature of the </p><p>Legislation required In obedience to your Commands we have taken this matter into </p><p>our consideration and have the honor to Report That with respect to the 1st Question, namely, whether a </p><p>Marriage between two Protestants solemnized in Malta by Ministers, and in conformity with the Laws or usages of the religious Communion to which the parties, or one of them, belong, is a valid Marriage according to the Law of England We answer that if this kind of Marriage is valid in </p><p>Malta, it will also be holden valid according to the Law of England. The true question therefore is, whether tjie Marriage be valid according </p><p>This content downloaded from 195.78.108.60 on Sun, 15 Jun 2014 09:34:19 AMAll use subject to JSTOR Terms and Conditions</p><p>http://www.jstor.org/page/info/about/policies/terms.jsp</p></li><li><p>to the Law of Malta; and, looking to the opinion expressed on this subject by the Crown Advocate, we are led to a conclusion in favor of the validity of such Marriages. It is clear, indeed, that they are invalid according to the Decree of the Council of Trent; but the Decrees of this Council have not been admitted as binding in all Roman Catholic Countries, unless they have also been made part of the law of the land by some special order or law of the State. We must assume, from the Crown Advocate's opinion, that, while Malta was in the possession of the Knights of St. John, the Decrees of the Council of Trent relative to </p><p>Marriages became incorporated into the law of the Island; but we think we must also assume the existence of what civilians call a constietudo obrogatoria of sufficient force to override this law and to validate these Marriages. But we must repeat, that this is really a question to be decided by the law of Malta ; and that as it appears that there has been, as yet, no Judicial decision upon the subject, the question cannot be considered as entirely free from doubt. </p><p>2. With respect to the second Question, viz. WThether the License of the Governor, or of any Authority of the Anglican Church, is necessary to the validity of that Marriage We answer that since the Constitution of the See of Gibraltar, we think the License of the Bishop ought to be required previously to the Marriage of two British Subjects members of the English Church by a Clergyman of that Church ; though we are not prepared to say, that such License is absolutely necessary for the validity of the Marriage. Previously to the constitution of the See of Gibraltar, it would be in accordance with the usual power of a Governor of a Dependency or Colony, that he should possess the authority to issue a License for the Marriage of members of the Church of England. We do not know any authority, either direct or to be derived from analogy, which would give the Governor power to license Marriages by Ministers not belonging to the Church of England. </p><p>3. With respect to the 3rd Question viz. Whether a Marriage is valid, if contracted between a Protestant and a Roman Catholic, according to the laws and usages of the persuasion to which the Protes tant belongs, with or without the License above mentioned We answer that the Marriage of a Roman Catholic with a Protestant, by a duly qualified Roman Catholic Priest, would certainly be valid. Whether the Marriage of a Roman Catholic to a Protestant celebrated by an English Priest with the license of the Bishop, would also be valid is a question of more difficulty. The general local law is applicable to Roma...</p></li></ul>

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