QUESTION—OBSERVATIONS. (Hansard, 24 July 1890)

* THE ARCHBISHOP OF CANTERBURY,
in rising to ask Her Majesty's Government—(1) Whether any regulations now proposed to be made, under an ordinance to be submitted to the Council of Government in Malta, to regulate the civil effects of marriages celebrated 694 heretofore, or which will in future be celebrated in that island, will in any way invalidate, or cast any doubt upon the validity of, any mixed marriages heretofore celebrated in bond fide with the sanction of the constituted authorities of the island; (2) on what ground of law it is proposed to be declared that any marriages so celebrated will be invalid in the future, said: My Lords, the questions of which I have given notice, and which are upon the Paper, arise out of certain statements which appear in the Correspondence connected with Sir Lintorn Simmons's Special Mission to the Vatican with regard to religious questions in the Island of Malta, and I must say that the statements as they stand have given rise to a great deal of disquietude. I need scarcely assure your Lordships that I shall not introduce any religious exasperation into the discussion of questions like these, although they are very important from a religious point of view. I shall import no odium theologicum into the question, but I will just read, in the first instance, two paragraphs from a letter of Sir Lintorn Simmons to Cardinal Rampolla, and when I have done so I think you will agree with me that it was not wonderful that they have occasioned disquietude. The first paragraph is this— The undersigned (that is, Sir L. Simmons), hag to inform your Eminence that Her Britannic Majesty's Government will cause a project of law to be introduced in the Council of Government of Malta in accordance with its declarations. The first declaration—being a declaration of the Pope, having for its object to regulate the civil effects of marriages celebrated heretofore, or which will in future be celebrated—is this— That marriages celebrated in Malta by all those who profess the Catholic religion, whether both contracting parties be Catholics, or whether one of them be a Catholic and the other a non-Catholic, are not, and shall not be, valid if they are not celebrated according to the form established by the Council of Trent. And a second declaration of His Holiness was— That persons professing any other religion may validly celebrate their marriage without the necessity of going through the form established by the Council of Trent. Well, a vast amount of, I do not hesitate to say, 'alarm and anxiety has been 695 created by the statement that what are called mixed marriages between Roman Catholics and persons of other religions are not at the present moment, and shall not be in future, valid unless they are celebrated according to the regulations of the Council of Trent. There have been a very great number of marriages during the. last 90 years, since we first entered upon the occupation of the island, which have not been celebrated in that manner, and, therefore, the Pope's declaration goes to show that all those marriages are invalid, that all marriages so celebrated will, in future, be invalid. That declaration affects all ranks of persons in our own Church, as well as Presbyterians, Methodists, and others, in great numbers, who have been married upon the faith of a licence from the Bishop of Gibraltar, or upon licence issued by the Governor of Malta. All those marriages, according to this declaration, are at the present moment invalid, and it is declared that no valid marriage can be celebrated in future except in the particular manner described. Of course, also a great deal of property, a great deal of character, and a great deal of position, depends upon this declaration. The British Government intend, as we were informed by a letter which appeared in the Press, by direction of the noble Marquess, on the 18th of this month, to remove the doubts which have arisen by legislation in cases in which neither party is a Roman Catholic. It is desirable to remove those doubts by legislation, and in order to secure that legislation it has been found necessary to consult the Vatican. Well, there is no doubt as to what the answer from the Vatican is. Of course, marriages in which neither of the parties is a Roman Catholic will be considered from this time as valid. But the question of mixed marriages remains. That is a very serious question, and in Malta a very large one, if the Pope's declaration is to be our law. Very serious civil effects will be created by the declaration that they are not valid unless celebrated according to the decrees of the Council of Trent, which require that where either party is a Roman Catholic the marriage shall be celebrated before a Roman Catholic priest, and the custom has grown up in modern times of a refusal on the part of 696 Roman Catholic priests to celebrate such marriages at all unless there is a promise that the children shall be brought up as Roman Catholics. That is the first point. There is another promise, though of less importance, that the marriage shall not be celebrated again by a minister of any other religious body. The action to be taken of declaring Protestant marriages, as we speak of them, to be valid in future, would seem to make those mixed marriages which have not been celebrated with Roman Catholic rites more doubtful than they can be regarded as being at present, and would make them impossible in future. It would certainly leave a wretched inheritance. There is no question whatever as to the force of the language. It speaks of marriages which have been celebrated "heretofore," and the state of matters which I have described will greatly curtail the liberty of English people in the future. We contend that such marriages are valid already, and that they do not want validity at all. We do not admit that they want to be made valid. The whole view of those who desire to introduce this legislation, that is to say, to adopt the declaration of the Pope (those persons not being, of course, our own Government, except as a matter of necessity or policy), is that these marriages are now legally invalid, and to be treated as invalid in future. But that most serious issue rests upon a single assertion. That single assertion is this, that the Canon Law is in Malta the Civil Law in respect of marriage. It is asserted that the Civil Law in Malta is, and always has been, as regards marriage, the Canon Law of the Roman Church. That is stated by Sir Lintorn Simmons perfectly distinctly in a Memorandum with which he himself, upon the advice of the Law Officers in Malta, furnished the Court of the Vatican. He says— The law of Malta in regard to the forms neceesary to the validity of a marriage even as to the contract is the Canon Law, and in that respect the Canon Law is also the Civil Law of Malta Now, my Lords, what does that mean? Does it not present itself as a very singular thing, in the first instance, that Canon Law should be the Law in Malta as regards the marriages of all persons? I need not refer to the fact 697 that the Canon Law rules as regards ecclesiastical benefices, advowsons, and matters of that kind. Of course, it does. But we are told that a single fragment of the Canon Law exists in Malta for all persons for this one purpose. My own idea is that neither this nor any other part of the Canon Law has been the Civil Law in Malta. I should like, parenthetically, to insert a single consideration here, namely, that it is not the Canon Law which is named in the Declaration of the Pope, but the decrees of the Council of Trent. Now I wish to observe, in passing, that it is admitted on all hands that the decrees of the Council of Trent are not ipso facto part of the Canon Law; they only become part of the Canon Law if there is some special law or Order of State by which they are inserted, importing the provisions of the Council of Trent into the Canon Law. That is a matter on which I do not wish to speak further now, and I pass it by for the present, because the point now rests upon the assertion that the Canon Law is the Civil Law of Malta. But how is it shown that the Canon Law is the law of Malta? We have had lately a Report from the Crown Advocate of Malta on this subject which the Right Hon. Mr. W. H. Smith read the other evening in another place, and with your Lordships' permission I will quote it. In his answer to a question put to him on the subject the Right Hon. Mr. W. H. Smith said— The Grown Advocate at Malta has reported that the matters which in Malta are governed by the Canon Law are marriages, ecclesiastical benefices and advowsons. The Canon Law of these matters was introduced into these islands by usage long before the British occupation, and has remained in force to the present day. Now, I particularly call your Lordships' attention to what immediately follows in the right hon. Gentleman's statement. "This is the whole of the Report."
There are no grounds of law alleged at all upon which that is laid down. The whole of the statement is that— The Canon Law on these matters was introduced into the island by usage long before the British occupation and has so remained. But, my Lords, usage is never quoted in matters of this kind, and things have never been settled upon usage when there is an enactment to be produced, and clearly there is no enactment to be 698 produced in that sense. But, on the other hand, we have an enactment to produce on our side. There was an enactment made in the contrary sense, and I say the onus rests upon the Crown Advocate and other Law Officers of Malta to show us when and how the enactment was superseded, which I shall lay before your Lordships, and that it is not sufficient merely to make a statement of that kind. I will take, then, this as the text, that the existing law as regards marriages is the Canon Law, and that that was the usage in the island before the time of the British occupation. Now, it is mere matter of history that the law under which the island was governed at the time of the British occupation was a very distinct Code, called the Code Rohan. Rohan as your Lordships know, was Grand Master of the Knights of Malta, and by the year 1782 the Code Rohan was fully established. A provision in the Code Rohan orders that— If a marriage shall have been contracted between a foreigner and a Maltese woman, or between a Maltese man and a foreign woman, in default of written compacts and agreements, it shall be considered as having been contracted in accordance with the practice and usage of the country. That is to say, unless there is some written contract or compact, or agreement to the contrary, a marriage contracted (it does not say how, there are no limitations) shall be considered to have been celebrated according to the practice and usage of the country. Therefore, of course, in the supposed case, it was not contracted according to the decrees of the Council of Trent, since an article in the Code Rohan has to state that it was to be considered as if it had been contracted in that way. So that under the Knights of Malta the Code Rohan was in force containing a provision to the contrary of what was said to be the provision of the Canon Law; and it had been so for a long time before that, because there is a book called Appeals from Malta, published in 1811, where it is pointed out that the Code Rohan (I should tell your Lordships that these appeals are put forward by the nobility, gentry, and people of Malta to the English people') differs very little from the Code which was in existence in the year 1721. Then came the occupation by the French Republic, and it is quite certain that the French did not introduce the Canon 699 Law. But we find in the history of Malta that one of the chief objections of the Maltese people to the dominion of the French arose from the feeling on the part of The clergy, who not only saw themselves despoiled of their resources, but withdrawn from the influence of the Court of Rome. It is very clear, therefore, that the island had a distinct Code, and that in that Code there was an article which touched the question of mixed marriages, and ratified them, without providing that the supposed foreigner must he a Roman Catholic. Then, in the next place, I suppose, it will not he contended that the English introduced the Canon Law. In the year 1811 was published this book of Appeals of the Nobility, Gentry, and People of Malta to the consideration of the British Government, and there we read a complaint on this very account that the British Government had adopted and recognised this very Code Rohan. It is stated there that the Code of Rohan and the Decrees of Hornpesch, who succeeded Rohan, were in force. Those were the only rules of justice and the lex scripta actually in force; and this book is actually a tirade against the British Government for governing-the country still under the Code Rohan. I have seen the terms of the Proclamation of 1801 quoted on the other side. That declares that The King's Majesty of England will protect your country, your holy religion, your persons, and your property. It is a promise to protect their country, religion, and rights, and not to introduce the Canon Law. That it was in force is refuted by the bold tirade against our Government which runs through this book of 1811, complaining that the Code Rohan has been adopted by the English. Throughout the whole book there is not the slightest mention made of, or request for, the Canon Law. I pass over a number of other passages, as I do not wish to weary your Lordships. But we have abundant proof there, that the Canon Law was not recognised as the law. Then there is a well-known book, or materials for a book, on the history of Malta, published in 1811, which gives us the condition of Maltese law. It states— In the present practice of Malta, whenever difficulties arise, not only precedents are sought 700 for of cases formerly decided in the Island, but the Roman Law and the decisions of the Italian Doctors are referred to. Then came the Proclamation of the year 1813, which is in its terms very like the Proclamation issued in the year 1801. I need not detain your Lordships with that. But let us see if any of the learned persons who have investigated the question on the spot have ever found, or even heard, that the Canon Law was the Civil Law in Malta. There is not a trace of it. Take the Report of Mr. Austin and Sir George Cornewall Lewis in 1839. That bears out all that we have seen already. This was an inquiry into the law of Malta, and it says— The law of Malta is mainly derived mediately or immediately from the Roman Law; its technical language for the most part is the language of the Roman Law, and it is the boast of the people that they have the Roman Law. Again, Sir George Cornewall Lewis and Mr. Austin say— Most of the Maltese Law is derived directly from the Roman Law; and there have been new principles introduced into the Roman Law from the Law of England, but not from the Canon Law. They say that many of the principles of the law of England have been introduced into it. There is not a mention of the Canon Law having any part in determining the destinies or affecting the property or persons of the people of Malta. Then, again, it is stated that The members of other Churches; that is, other than the Roman Catholic Church, have complete protection in their public worship. I apprehend that would not have been the case if a member of any Protestant denomination was obliged as a solemn act to be married only before a Roman Catholic priest; so that if he is not married before a Roman priest, he is to lose his civil rights as a married man, and that his children shall lose their rights; or if he had been bound, upon the celebration of his marriage by a Roman priest, to make a promise as to the bringing up of his children, and also that he would not go into his own church to be married by licence of his own Bishop in accordance with the rites of his own Church. There is no indication of anything in the least like that; and the Article of the Code Rohan was established as the law of the island on this point. But, besides that, 701 we have had a perfectly continuous current of authority upon the matter from time to time. We have had the interpretation of 90 years. During the whole of those 90 years licences have been granted by the English clergy, and Civil Authorities in the island, whether the Bishop or Governor; marriages have been celebrated by our clergy, and by the ministers of other denominations there, and the certificates of those marriages have been, I am assured, received in Probate and Divorce proceedings, both in our own country and in the Courts of Malta, as establishing the validity of such marriages. My contention is, that the marriages are valid; and I say the last thing we want is that they should be now made valid by an enactment. My Lords, it would introduce a state of things in which, by our own law, every child of a mixed marriage in Malta would have to be brought up to be a Roman Catholic. There is no such state of things anywhere else in our dominions. We have other places quite as Roman Catholic as Malta—Quebec and the Mauritius, for example—and in both of those places people can be married by their own rites, and mixed marriages can be carried out without any difficulty. Such is, and should be, the case in Malta. The Canon Law is not the Civil Law of Malta, and to make it such would be to introduce the decrees of the Council of Trent for the first time as the Law of Marriage in the island. The Canon Law has had its power over all Catholic countries at one time or another; but what I particularly contend is that all I have said shows that in Malta, in regard to this particular point, it long ago came to an end there as elsewhere. It is not oar marriages that need vindication, but so strange an assertion as that in this day in respect of civil marriages—the Canon Law is the law of Malta. This would fix the yoke of the Canon Law and the Decrees of the Council of Trent together upon marriage for the first time. As I have said, the Decrees of the Council of Trent did not, and do not, become part of the Canon Law or Civil Law in any country unless by special intervention of the State. My Lords, there is a very strong feeling on this matter both among Nonconformists and Church 702 people. This very week the great Wesleyan Conference is debating this matter, and I would urge that law and justice should be done in this matter. We desire to be fair and just to Roman Catholics, and to recognise the rights of Roman Catholics, but justice to Roman Catholics in this case does not certainly involve or require the sacrifice of the rights or the violation of the consciences of our own people. I am convinced that the desire of the Government is to be just on all sides, but it would not be acting justly to our own people that these arrangements of Sir Lintorn Simmons should verbatim et literatim be carried out. I have very little doubt that the Government will be able to give an answer that will allay the great disquietude that exists on this matter—an uneasiness that is increasing from day to day; and, in these circumstances, I have thought it right to ask the Government whether they intend to do anything which will cast doubt upon the mixed marriages which have hitherto been considered valid when celebrated bond fide under the authorities of the island, and also on what ground of law it is proposed to declare that marriages so celebrated will be invalid in the future?

§ * THE SECRETARY OF STATE FOR THE COLONIES (Lord KNUTSFORD)
My Lords, in reply to the most rev. Prelate, I have to state that the ordinance which has been referred to in his question has only been sent over in draft for the consideration of Her Majesty's Government. It does not in itself invalidate any marriages which have been heretofore celebrated. It is proposed in the Ordinance to validate marriages as to the validity of which doubts have been entertained. Those doubts have not been, and are not, created by the ordinance itself, but they have existed for many years. In the year 1865 the question was raised and laid before the Law Officer of Malta, and before the Law Officers of this country, and, after full consideration of all those opinions, Mr. Cardwell, then Secretary of State for the Colonies, advised that the doubts should be removed, and that validity should be given to marriages contracted by formalities which the parties themselves believed to be binding. He suggested that for this purpose a local ordinance should be passed under the powers given to the 703 Local Legislature to pass Acts validating past marriages. Such powers were given by the Imperial Act 28 & 29 Vict., cap 64. It does not appear, however, that anything was done at that time. There is no question as to the validity of mixed marriages celebrated in Malta by Roman Catholic priests, but doubts have arisen as to the validity of mixed marriages which have not been celebrated before a Roman Catholic priest. The highest Legal Authorities in Malta, including the present Chief Justice and the present Crown Advocate, have all advised us that marriages in Malta are governed by the Canon Law, of which the Decrees of Trent form an integral part. My answer, therefore, to a great part of the most rev. Prelate's argument is that the Law Officers have advised that the Canon Law is the law of Malta, and that the Decrees of the Council of Trent are part of that law. It may be contended that the Decrees of the Council of Trent have no force in the island unless it is proved that the Council was duly promulgated; but the Legal Authorities in Malta have advised that it was duly promulgated there; that it was accepted by the Civil Authorities; and that it has ever since continued to be the Civil Law of the island. Upon this assumption, the same Legal Authorities have advised that the celebration of mixed marriages before a Roman Catholic priest has always been deemed indispensable in order to give validity to such marriages. I understand now, from the argument which has been brought forward by the most rev. Prelate, that he disputes the opinion which is held by these Maltese Legal Authorities —namely, that marriages in Malta are governed by the Canon Law. It would, of course, be quite out of place now for me to argue in defence of the opinion which has been formed by the highest Legal Authorities in Malta, but I should like to refer very briefly to one or two points brought forward by the most rev. Prelate. In the first place, he has referred to Quebec and Mauritius. Those colonies were in a very different position from Malta, inasmuch as both were conquered, and the Canon Law was not in operation there before they were conquered. In Quebec the law is founded on the old French Code Civile,known as the Coutumes de Paris.In Mauritius no question could 704 have arisen, as there is a civil marriage under the Civil Code known as the Code Napoleonand the Civil status ordinance of 1801. As regards the Code Rohan, which has also been referred to by the most rev. Prelate, I can only say I do not profess to give a legal opinion on the clause he has mentioned, but I put a very different construction upon it. The word used in it is "forestieri," strangers, foreigners, and it provides for the case of a foreigner marrying a native, but there is nothing in that particular article to show that they may not both be Roman Catholics. All it says is that if a foreigner, a "stranger," marries a Maltese the marriage should be conducted according to the laws of that country.

* THE ARCHBISHOP OF CANTERBURY
The words are "shall be considered to have been" performed according to the laws.

§ * LORD KNUTSFORD
That is, for the purposes and in regard of the partition of property. The whole of that chapter, from beginning- to end, refers to the partition of property arising out of a marriage, nor, as far as I am aware, is there any provision as to the mode or formalities of celebrating marriages. However, I do not wish to argue the question. I can only say that the construction of it, as I am advised in the matter, is entirely different from the construction placed upon it by the most rev. Prelate. The Report of Sir G. C. Lewis and Mr. Austin refers to certain parts of the law of Malta which have no bearing upon marriage, and the very words quoted by the most rev. Prelate show that the Commissioners were not dealing with the whole question. I think I may say that there is, in truth, no allusion to the Marriage Law of Malta in the whole of that Report. Her Majesty's Government will, of course, carefully consider and will submit to the Law Officers of the Crown any legal opinions or arguments which may be given on this question in opposition to the view which we have been advised is correct, namely, that the Canon Law is the Civil Law of Malta. We have certainly proceeded on the assumption, which we believe to be correct, that marriages in Malta have been, and are, governed by the Canon Law. This is not the place to hold a legal argument, especially between the most 705 rev. Prelate and myself, who do not speak with authority upon the legal views of this question; and I have only to add that Her Majesty's Government fully recognise the importance of the subject, and that no decision will be arrived at until all the points have been carefully and fully considered.

§ LORD HERSCHELL
My Lords, I should like to ask one question upon a point which arises out of this discussion and the answer which has just been given by the noble Lord. I understand his position to be that certain high Legal Authorities now express the view that the Canon Law at present governs the law of Malta. What I should like to know is this: Whether this has been the view acted upon by the most rev. Prelate, that these mixed marriages, which, according to that view, would be illegal, have taken place over a long series of years and have been recognised as valid marriages not only in the Courts of this country, but in the Courts of Malta. I think it is an important matter to know whether that is the case, and whether during the many years that these marriages have been taking place, they have been held judicially in Malta to be invalid, or, on the contrary, have been held to be valid, and the children of them to be legitimate and entitled to the ordinary rights of legitimate children.

§ * LORD KNUTSFORD
I understand the noble and learned Lord to refer to mixed marriages which have not been performed before a Roman Catholic priest?

§ LORD HERSCHELL
Yes.

§ * LORD KNUTSFORD
We are not aware of a single case which has been brought before the Court of that kind. There have been cases in Malta where the parties have been married before a Roman Catholic priest and have been some time afterwards married before a Protestant minister, but we are not aware of any case in which that question has been raised before the Maltese Courts. That is why I am not prepared to argue the question now. I think it is quite probable that where the Governor has given a licence, and a certificate has been granted, it may be recognised in the Courts here, but I am not aware of any decision in the Courts of Malta.

* LORD KINNAIRD
May I ask whether it is proposed that any power which the Governor of Malta has hitherto exercised should be taken away under the new project of law?

§ * THE PRIME MINISTER AND SECRETARY OF STATE FOR FOREIGN AFFAIRS (The Marquess of SALISBURY)
The noble Lord is asking a question in regard to the future. As my noble Friend has stated, the proposals of the Maltese Legislature in draft are now before Her Majesty's Government, and will be subjected to the most careful consideration. Therefore, it will not be possible for us to say in the present state of affairs what future legislation there may be.

* LORD KINNAIRD
May I ask whether the matter will be brought before this House before it is finally ratified?