No.

33. Petition to the Queen from adherents of the "Free Church" of Scotland, in Poona, to the effect as in the preceding petition

34. Letter (November, 1847) from the Legislative Council at Calcutta to the Court of Directors, "on the state of the law affecting native Christians in respect to marriage, divorce, and inheritance, and on the necessity of an imperial or local Act. 35. Despatch (August, 1848) from the East India House to the Governor-General of India in Council, stating why an application to Parliament in respect of marriages by persons not in holy orders in India had not been made, and expressing a desire that the Legislative Council should point out in a succinct form the several difficulties which have to be provided for in those marriages, and the mode in which the Council would propose to deal with them

36. Draft Act (1849) for marriages in India, celebrated by ministers, and others, not in connexion with the Church of England as by law established; being the Act proposed on behalf of the Dissenting Deputies, and referred to in the Evidence, p. 5, Q. 54-56

Pages

47

47-8

48

48

MINUTES OF EVIDENCE

Taken before the COMMISSIONERS appointed to Inquire into the STATE and OPERATION of the LAW of MARRIAGE, as relating to the Prohibited Degrees of Affinity, and to Marriages solemnized Abroad, or in the British Colonies.

EAST INDIA MARRIAGES.

19th FEBRUARY, 1849.

The Right Hon. STEPHEN LUSHINGTON, D.C.L., in the Chair.

David Hill, Esq.

1. You are in the Judicial Department of the East India Company's service at home?— I am.

2. Can you afford the Commissioners any information upon the subject of marriages had in the territories under the Company's control in the East Indies?-I have brought the latest letter from the Government of India on the subject, and the latest instructions from the Court of Directors to the Government of India, showing how the question stands at present; and also memorials and correspondence relating to the several parts of the question. I have also brought a number of the "Calcutta Review" (No. 6, June, 1845), which is referred to in the Despatch of the Government of India. Besides a statement of the question, it contains in a short compass all the legal opinions taken at different times by the Court of Directors on the subject. [The Case and Opinions are printed in the Appendix, No. 1, p. 8, et seq.]

3. Has not the question been afloat since about the year 1817?-I should think in some shape or other much earlier. I can myself remember several years before that, when Earl Minto was Governor-General; being an old lawyer, his alarm was very much excited on the subject of the hazard of marriages being set aside as void. I remember his writing a secret Despatch to the Madras Government, desiring them not to excite public attention on the subject, as he looked upon it as one of a very alarming nature. One point which engages principal interest in India relates to the mode of dealing with the antecedent marriages of converts to Christianity, especially in the case of a plurality of wives. But that, I imagine, is not in the view of this Commission. A Hindoo or a Mahomedan may have married three wives-he becomes a Christian ;-on the other side the party is entitled to a dissolution of the marriage; but if that right is not enforced, or if a corresponding right is not recognized on the side of the convert, then the missionaries have raised the question, how such a case should be dealt with. [See p. 39, No. 25, et seq., as to marriages of converts.]

4. Has not that become rather a perplexing question in India?-It has; and it is a question which of course will acquire increased influence and a more extended operation. The other points relate, first, to the question of the validity of marriages that have been solemnized otherwise than by a person in holy orders. Upon that point the legal opinions are not conclusive or satisfactory, even with respect to legitimacy and inheritance. They all agree in saying that the parties cannot marry again, but how far the marriage is valid for all purposes of legitimacy and inheritance seems to be, up to this time, a doubtful question.* Then there is the grievance which the Dissenters complain of,-both the ministers and their followers, that they should not be permitted to marry in the mode most agreeable to their feelings and most according to their consciences, and that any doubt should be thrown over the validity of marriages solemnized in the mode that they themselves consider most satisfactory.+ That grievance is distinct from the question of validity, and is very much pressed upon the authorities at home and abroad. Out of that arose a question, a branch of it, as regarding Scotch marriages. A special statute was passed authorizing the Scotch ministers in India to solemnize marriages, if

David Hill, Esq.

either of the parties belonged to their communion. But the Church of Scotland has since been 58 G. III., c. 84, App. split into two parts, and the Free Church claims the benefit of this statute. They stand of No. 1, p. 10.

course on the same footing as other Dissenters. If these questions were settled, then comes the See p. 46, Nos. 31–4. question how validity is to be given to marriages which, through a long course of years, according to the constant practice of India, have been recognized as valid,-marriages solemnized by commanding officers and magistrates as well as Dissenting ministers.

5. Has it ever occurred that there was a distinction between marriages celebrated by lay

* See Pages 8, 9, 12, 23-5, 32, 37, 47-8.

† See Pages 2, 3, 32-6, 38-47.

B

David Hill, Esq.

men, when there was a facility of obtaining clergymen in holy orders, and marriages celebrated by laymen when there was no such facility?-That is, I believe, provided for in one Act, that Appendix, p. 10, pp. marriages in cantonments shall be celebrated by the commanding officer, or under his authority, if the parties cannot obtain the services of a clergyman.

4 G. IV., c. 91,

12-37, par. 6.

Converts.

6. That applies only, I apprehend, to the case of marriages where the troops are concerned. The question had reference to a case where a civilian, being a layman, takes upon himself to celebrate marriage where there is no clergyman; of which, I believe, there have been a great many instances. In all instances where a layman celebrates a marriage, it is because a clergyman is not to be had;-there is no preference for a lay marriage.

7. The question is, whether any distinction has ever been taken as to the validity of those marriages? There has been, in the legal opinions laid before the Court of Directors. In the opinions quoted in the review the point has, I think, not escaped notice.

8. Are any instructions given to the civil servants of the Company and the agents in the different provinces, with respect to celebrating marriages, from the government of India, as to the extent to which they are to celebrate them?-So far there were instructions, that they were not allowed formerly to marry, and I imagine not now (but I have not any positive knowledge upon the subject), without a license from some authority at the Presidency, the seat of government, to show that it was not a clandestine or improper marriage. At Madras the license used to be given under the hand of the Governor to the party applying. With respect to common soldiers, I believe they have the license of their commanding officers; but, with respect to persons in other classes of society, a license from the proper authority was always necessary, whether a chaplain or a layman solemnized the marriage. No chaplain ever was permitted to marry without it. [See p. 36, par. 3.]

9. Was it a license for the particular marriage or a licence for celebrating marriages?—I do not know the form, but, in effect, it was a permission to the chaplain to celebrate marriage, or to the commanding officer, in case a chaplain was not to be found.

10. To celebrate that particular marriage?-That particular marriage.

11. But is there any instruction or authority given by the Indian Government to any of their agents in the provinces, regulating the mode in which they should celebrate marriages? There certainly is nothing in the way of a general license to particular officers, either civil or military, to perform the ceremony more than to others. There are no circular orders, but a long course of practice has established certain rules. A subaltern would not undertake to perform the ceremony, when his superior officers were in the same cantonment with him; he would incur severe censure if he did, as if it were a Gretna-green marriage. It is always an authorised and avowed transaction by the best authority that is to be had, lay, if not clerical.

12. You alluded to questions arising from the mode of dealing with marriages previously contracted by the native heathens who are afterwards converted to Christianity might not difficulties, as regards British subjects and British property, occur with reference to that point in this way supposing a native heathen to have married, according to his religion, two wives, and one of them to have died, and that he subsequently married a British subject, would not the question then arise whether that was a good marriage, or whether the earlier marriage with the second wife was sufficiently valid to make him already a married man?-The marriage before the conversion?

13. Yes. That is a point which the missionaries have raised. and they have laid down rules for their own flocks addressed to their discretion and judgment; as, for instance, that they must not marry for three years after their conversion. A body of missionaries have laid down certain reasonable regulations on the subject, but they have not legal validity. [P. 40, No. 26.] 14. Does that embarrassment present a practical difficulty in effecting the conversion of the natives?-The Government have no information on that point. It is a point that the missionaries like to insist very much upon. I have understood that those who do not belong to their vocation believe that they exaggerate it; but prospectively, the difficulty must be of enormous

amount.

15. Do the missionaries condemn a marriage had according to the forms of the religion then in force between two Hindoos, and say that the validity of that marriage, in case of conversion, is to be affected by the conversion ?-They conceive that, by the Hindoo law, if the husband becomes a convert, being an apostate, he forfeits his condition of husband. [P. 41, sec. v.] 16. And has it not also been considered that the marriage is dissolved by one of the parties becoming a Christian?-The missionaries do not dissolve it; on the contrary, they quote Scripture, and say, that the "unbelieving husband" or the "unbelieving wife" is still to be recognized, and therefore they do not at all wish that the marriage should be repudiated by the convert. But if there is a plurality of wives, I do not know how it could be recognized; in other cases they perfectly recognize the scriptural doctrine, that the convert is to show submission and forbearance to the unbelieving consort. [See p. 41, ss. iv., v.]

17. Your impression is, that so far from urging that the husband is released from the bond of marriage according to the Hindoo law, by his conversion to Christianity, they contend that he ought to adhere to his wife?—If the other party does; but that the other is, by the religion of the natives, absolved from the matrimonial tie. The missionaries have put forth a paper called "Statement and Propositions regarding Marriage and Divorce, chiefly as they affect converts to Christianity:" reprinted (in April, 1845), with some slight alterations, from the "Calcutta Christian Observer." [See p. 40, No. 26.j

18. What is the paper which you are citing ?-This is a paper which was sent home by the government of India in a despatch of 1848, from certain missionaries; a large body of them, I think. After a long preamble, stating all the difficulties of the case, they say :

"In the total absence, however, of any authoritative or legislative measure on the subject, the mission David Hill, Esq. aries, in order to establish, as far as possible, a uniformity in the mode of procedure in ascertaining the rejection by a heathen, or Mussulman, of a husband or a wife who may have become a Christian"(the objection is on the other side) "resolved still further unanimously to adopt the following rules and forms of document and communication:

"1st. That in cases where there may have been no children, the fruit of the marriage, no new mar- Rules by missionaries riage be solemnized within two years from the date of the first friendly application to the repudiating in India, as to marparty" (the heathen) "for the continuance or restoration of conjugal rights. riage of converts to

"2nd. That in cases where the parties have lived long together as man and wife, or have had children Christianity. See p.42. the fruit of the marriage, no new marriage be solemnized within three years from the date of the first friendly application to the repudiating party for the continuance or restoration of conjugal rights.

"3rd. That in both cases one whole year be devoted to attempts at friendly communications in this matter, previous to the adoption of any more formal procedure.

"4th. That should these friendly attempts to accomplish reconciliation and reunion, continued for a Mode of procedure whole twelvemonth, fail, the following mode of procedure be adopted :-1st. That in cases where per- where reconciliation sonal communication can be obtained with the party, a notice (written or verbal) demanding conjugal and reunion unsuccessful. rights be personally communicated to the heathen or Mussulman, in the presence of witnesses, who are to sign a written document recording the fact, a copy of which record is to be left with or communicated to the chief native authority of the village, or thannah, in which the repudiating party may reside. 2ndly. That every six months the above proceeding be repeated until after the expiration of one year in the case referred to in Rule 1, and two years in the case referred to in Rule 2, from the date of service of the first notice. 3rdly. That in cases where personal communication with the party cannot be obtained, the notices above referred to be served on some of the nearest friends or relatives of the repudiating party who may be found at the place of his or her residence, and the same course of procedure be followed as in the former instances.

5th. That it be understood that when the repudiating party is ascertained to have committed adul- Where repudiating tery, or have entered into matrimonial relations with other parties, the repudiated party be considered party commits adulas immediately at liberty to form a new marriage."

These are extremely liberal rules, liberal as regarding the rights of the heathen. They are agreed to by a body of missionaries in the meanwhile, in default of any authorized" regulations.

19. Those assume the shape of recommendations by the missionaries to the natives?—To their own flocks.

20. Have they been acted upon to any extent?-They state here that they are unanimously laid down by them, but they can carry no authority.

21. But you do not know that they have practically been acted upon ?-It is only from this paper that I know anything of them.

22. Do the papers which you produce contain the whole of the information which you think it necessary that the Commissioners should have upon this subject ?-I think they do. I only had notice to attend a few days ago; but all the papers have passed through my hands, and I have no recollection of any other. I feel satisfied that all the points involved in the question of Indian marriages will be found here. We have not all the papers just at hand; it would require searching through a long course of years. I cannot say that the whole papers which the Court of Directors have received are here; I do not believe they are; but I do not think that there is any point involved in the case which is not included in these papers.

23. Is everything requisite to our inquiry in these papers, so far as you know?—I think so, except the legal opinions, which are more conveniently given in the "Calcutta Review." 24. That does not give the case?-No.

25. (Per Sir Edward Ryan.) There is the case also which was submitted to other law officers, and among them to the present Lord Campbell, will you furnish us with all the cases and opinions upon the subject?—I will endeavour to do so.

26. There is likewise a letter of Mr. Lawford, (the Company's solicitor) of the 16th of December, 1840, in which he sent out all these cases and opinions to India, and in which he himself observes upon the law; is that among the papers that you have with you?-It is not.* 27. There was a despatch also of the Court of Directors upon the subject, accompanying that letter?-There was.

28. Then there is a letter, addressed by the present Bishop of Calcutta to the GovernorGeneral in Council, of 21st August, 1833, upon the subject?†-I have here a very long letter of the 30th January, 1839, from the Bishop.‡

29. That is a different letter. Then there is an opinion of Sir Herbert Compton, when he was Advocate-General, upon the subject of marriages in India: that is as far back as 1824? -If there was such an opinion, it is on the records of the Court, I have no doubt; but I have no recollection of it.

30. It is to be found in connexion with documents, marked "Judicial Department, 1824, Lower Provinces, Criminal:" the communication is addressed to the Chief Secretary of the Government, 12th August, 1824. The opinion is dated 23rd July, 1824?-I will endeavour

tery or marries.

to procure it. With respect to future marriages in India, the new Marriage Act will, I pre- 6&7W. IV. cc. 85, 86; sume, afford the easiest solution of the difficulty by means of registration. The Government 1 Vict., c. 22. could appoint a registrar wherever it is thought advisable. The peculiarity of the case in India is that there is a solid continent, 2000 miles in length and 2000 miles in breadth, independently of detached settlements scattered over thousands of miles; and it is impossible to have a clerical establishment to solemnize marriages all over this space; there are not 100 clergymen in holy orders there.

* See Appendix No. 1, pp. 8-13.

+ See No. 3, p. 13.

No. 15, p. 27.

Rev. T. Boaz.

58 G. III., c. 84. App. p. 10.

13th FEBRUARY, 1849.

The Right Hon. STEPHEN LUSHINGTON, D.C.L., in the Chair.

The Rev. Thomas Boaz.

31. You have been resident for some time in India ?-Yes.

32. What length of time?-About 13 years.

33. In what part of India ?-In Calcutta.

34. Have you been in any other part of India?—In Madras.

35. You have been a missionary?—I have been pastor of the English Independent Church in Calcutta, and secretary to the Auxiliary to the London Missionary Society. [Also par. 54.] 36. You know the general state and condition of India with respect to the question of marriage?-Yes.

37. Can you inform the Commissioners generally what is considered to be the Law of Marriage within the territories of the East India Company?-The valid marriages, those at least held to be valid for all purposes in the law, are marriages performed by clergymen of the Established Church of England, and the six chaplains of the Established Church of Scotland, viz., two in Calcutta, two in Madras, and two in Bombay.

38. Does any doubt at all arise about a marriage celebrated by a clergyman of the Established Church of Scotland though he does not happen to be a chaplain ?—Yes, he is in the same category with the ministers and missionaries of other denominations.

39. Then the apprehension prevailing in India is this, that unless the marriage be solemnized by a clergyman of the Church of England (without restriction to his filling any office), or by one of the six Scotch chaplains, the marriage will then be liable to some question in some respects?-Yes, that opinion is entertained by some persons.

40. Are you aware that about the year 1816 a question arose in India as to the validity of marriages solemnized by Presbyterian clergymen of the Church of Scotland?—Yes.

41. Are you aware that in consequence of that question an Act of Parliament was passed in 1818?—Yes; that Act was obtained by Dr. Bryce, of the Established Church of Scotland, and it was that Act which had the effect of placing all ministers, not Episcopal, in the same category with ourselves. The missionaries of the Church of Scotland were then placed in the same position as the missionaries of other bodies, because this Act declares that marriages shall only be celebrated by a chaplain of the Church of Scotland, and that one or both of the contracting parties shall declare themselves to be members (at the time of the celebration of the marriage) of the Church of Scotland; that declaration must come before the solemnization of the marriage. I may here observe, that before the passing of this Act there were no missionaries of the Church of Scotland in India. The only ministers of the Church of Scotland in India were the ordained ministers of that Church being chaplains of the Company. 42. It appears by the statute to which you have referred that all past marriages are expressly made valid, if celebrated and solemnized by an ordained minister of the Church of Scotland, without any additional qualification; but in the second branch of the Act future marriages are declared to be valid, if celebrated by an ordained minister of the Church of Scotland as by law established, and appointed by the United Company of Merchants of England trading to the East Indies to officiate as chaplains. The effect of the statute, therefore, being to make past marriages valid, if celebrated by a minister of the Church of Scotland; but as to future marriages, to make them valid only if celebrated by a minister of the Church of Scotland, being also a chaplain ?-Yes, that was the effect of the law in 1818.

43. And you are understood to say that that is explained by the fact that there were no ministers of the Church of Scotland at the time this Act passed, except such as were chaplains?-There were no missionaries of the Church of Scotland at that time in India, and I suppose Dr. Bryce wished the second clause of this Act to be like the first; but it was altered in the House of Lords, and restricted to its present form.

44. As a matter of fact are there many other marriages solemnized in India, not by clergymen of the Church of England, or by Scotch chaplains?—There are; such marriages have been always solemnized in India.

45. Marriages, by ordinary laymen, frequently?-By civilians and military men, and by ministers of different religious persuasions.

46. That has continued to go on?-Yes. With the permission of the Commissioners, I will explain why that was done. In the majority of instances, there were no chaplains in the districts where the missionaries laboured. It was not from any officiousness, or desire on their part to interfere in the matter; but they had no alternative, either they must marry the parties or the parties must live in sin.

47. The constant practice in India was for civilians to celebrate marriages?—Yes, in the absence of chaplains.

48. Are there many districts into which no chaplain ever went ?-Many; in the earlier periods of Indian history and missionary labour.

49. Has any apprehension been entertained with respect to the validity of those marriages? -Yes.

50. When did that apprehension arise, and from what cause?-It arose in the first instance before my arrival in India. In the year 1838, it assumed a more important aspect, and excited considerable attention. The cause in both instances was, that doubts had been cast, on the validity of marriages celebrated by dissenting ministers or missionaries, by clergymen of the Episcopal Church in India, one of them going so far as to pronounce such marriages no marriages at all, aud threatening to re-marry the parties.