51. Is it considered that the degree of doubt which may be conceived to exist respecting the validity of these marriages is a hardship upon the parties in India?-Very great. Rev. T. Boaz. 52. Are you able to state the particular doubt entertained; whether it is as to the validity of the marriage altogether, or as to any consequences of the marriage, or to what?—When doubts first began to arise, they were fully discussed, and application was made to the Government of India upon the subject. The Government very favourably entertained the application, and forwarded it in substance to the Court of Directors, and the Court of Directors took the opinion of learned civilians in this country upon the subject, and those opinions were in substance, I believe, that the marriages were valid for certain purposes, but not for all; not for instance, in pursuing a case in the Ecclesiastical Court as to property. These opinions are embodied in a petition which was presented to the Houses of Lords and Commons last year. 53. Can you supply the Commissioners with a copy of that petition ?—I can. The subject See p. 45. was in abeyance for some time after this, when it again came under discussion, and another application was made to the Indian Government, and the Indian authorities once more referred it to the Court of Directors, and the Court again took opinions in England on the subject. In substance these opinions were very much the same as the previous ones. On their reception we determined to adopt measures for bringing the subject before the Imperial Parliament. 54. What measures did you adopt for that purpose?-I came over to this country, partly for this purpose, bringing with me the outlines of an Act which were presented to the Dissenting Deputies, as the parties with whom I was best acquainted, and they referred the matter to their legal authority, who drew up the draft of an Act. That Act we sent to India, to the parties interested, and, founded upon it, they have sent back a copy of an Act, which they consider applicable to the circumstances of the country (if the principle be recognized). The details of that Act are applicable to the local condition of India. That draft Act has been considered by legal men in India; it has been circulated through that country, for the opinions of the parties interested in the matter, and generally they approve of the proposal as it now stands. See also par. 103-7.] [See 55. What do you consider to be the general principle upon which that proposed Act is founded?-To render marriage a civil contract; to be confirmed, if the parties please, by any religious ceremony. 56. That is the draft Act of which you have furnished a copy to the Commission?-Yes. See p. 48. 57. You do not anticipate any objection on the part of any parties in India to the passing of an Act similar in principle to this?—None, I should think, on the part of the local Government. Some of the members of the Government have expressed themselves as decidedly favourable to our application. 58. Have any marriages come within your knowledge between natives in India?-There are marriages contracted between natives, solemnized by persons other than clergymen of the Church of England. 59. Marriages between natives according to their own ceremonies, whether they be Hindoos or Mahomedans?-Yes. 60. But you do not propose to interfere with their marriages in any way whatever?—Not at all. 61. With respect to the marriages which are generally called mixed marriages, do any marriages of that kind take place in India, either between natives of India and Europeans, or between Europeans professing different religious opinions?—There are marriages of that kind between Roman Catholics and Protestants. 62. Are there any marriages between Europeans and natives?-Very few, I should think: none now, I should suppose. In earlier times there were contracts, called by some marriages between Europeans and natives. 63: Are there any half-castes in India?—Yes, there are. 64. Are there marriages between British subjects and native half-castes ?-The half-castes, or East Indians, as we call them, are British subjects. They are under the same law, and consider themselves British subjects. 65. They consider themselves somewhat in the same light as Europeans going to reside in India?-Precisely. 66. Marriages occasionally take place between Europeans coming to India and those halfcastes ?-Yes. 67. Are the half-castes generally Christians?-All, or nearly so. I may state this much on this subject, that there is no impediment to the priests of any denomination, or of any religion, marrying any persons, except in the case of Protestant Dissenters. A Mahomedan priest could solemnize a marriage between two Christians if they chose to submit to his ceremonial. 68. How is it that the Dissenters are under a greater disadvantage than any other class?— That seems to have arisen very much from the same causes which operated in this country before the passing of the Dissenters' Marriage Act here. The English law which was previously applicable to Dissenters, and which prevented their marrying, was supposed to extend to India; at least, I remember the present Bishop of Calcutta making that one of his objections. I am strongly inclined to think, that the real cause is the common prejudice that Dissenters are disqualified. We never doubted the validity of our marriages; but after the opinions, to which I have referred, were taken, of course we were placed in a worse position than before the doubts were raised. 69. But the opinions of those civilians only went to certain consequences arising from the marriage. They did not go to impeach the validity of the marriage altogether?-Just so. 70. As between British subjects, marriages are validly solemnized, in the first place, by See p. 10. clergymen of the Church of England; and secondly, under the Act of Parliament, to which you have referred, by ministers of the Established Church of Scotland ?—Yes. Rev. T. Boaz. 58 G. III., c. 84. See Appendix, p. 10. See pp. 33-35, 45. 71. Besides that, where no minister of the Church of England, or of the Church of Scotland, can be found, marriages in the remoter districts are solemnized either by civilians or by military men, or by missionaries?—Yes, that has been the practice. 72. Are any such marriages solemnized either by civilians, or military men, or by missionaries in those districts of India, where clergymen of the Church of England are found; for instance, at Calcutta or Bombay?—I should think not now by civilians or military men, but there are by Dissenting missionaries. 73. Has that Act of Parliament which legalizes, expressly, marriages solemnized by ministers of the Established Church of Scotland been supposed to place the ministers of any other denomination in a less advantageous position than they were in before that Act?-Yes, inasmuch as it has thrown a doubt upon their validity. By confirming the validity of marriages performed by the six chaplains, it has rendered the others at least dubious. 74. Since the disruption of the Scotch Church, there is a considerable body of persons attached to what is called the Free Church?—Yes. 75. And they would refuse to be married by a minister of the old Established Church?― They have done so, and their own ministers have married them. 76. Then they are now in the same position as all other denominations of Dissenters ?-Just the same, and they are parties to the proposed Act. [p. 25] 77. Are you aware of any law in India either emanating from the British Parliament, or from the local government of India upon the subject of marriages, regulating them in any way beyond the Act of Parliament to which you have referred?-I am not aware of any. 78. The grievance in respect of the doubts thrown upon the validity of marriages celebrated in India, by any other person than a minister of the Episcopal Church or a minister of the Established Church of Scotland, has existed for some time as regards all other Dissenters except members of the Free Church? Yes. 79. And there must have been very numerous marriages which would come under the ope ration of those doubts?-A considerable number. 80. But with respect to the members of the Free Church of Scotland, it is a new grievance which has arisen since the disruption?-Yes. [p. 46, No. 31-4] 81. You said that you apprehended no opposition to such a Bill as that which you have laid before the Commissioners from the government of India; what is the branch or department of the Indian government to which such a matter would be referred?-It would be referred to the Council of India. 82. Is there any officer there now in the position in which Mr. Macaulay was in India? There is a legal member of the Council. 83. Is Mr. Drinkwater Bethune the gentleman who now fills that situation?-I am not sure. The appointment has been made since I left. A gentleman has been appointed to succeed Mr. Amos. [Mr. Bethune fills the appointment.] 84. The department of the government by whom it would be considered would be the Governor-General in Council?-Yes; I should not anticipate that there could be any opposition but from the Episcopal, or, generally, the ecclesiastical authorities. 85. Do you anticipate any opposition from the Indian government at home here ?—I should think not. They have always appeared to be very favourable to our application, and have taken great trouble to obtain legal opinions upon the subject. 86. You have said that you should only apprehend any opposition from the ecclesiastical authorities of the Church of England in India; do you anticipate objections from them?—It is the only source from which I think it could come; it is not impossible. 87. Has there been any indication of opposition in India from that quarter ?-Not that I am aware of. 88. Has the Bishop of Calcutta expressed himself adversely to it?-He has expressed himself rather strongly once or twice; but only, I believe, in a private way, by note or minute in connexion with our application to the Indian government. 89. Has there been any written letter or charge to the clergy, or anything of that sort upon the subject ?—Not that I am aware of, to the clergy. [But see p. 29, No. 35.] 90. There is no published proceeding from which you collect that there has been hitherto any opposition?-Not that I am aware of. 91. There are a great number of children whose rights, with reference to property, must be doubtful if these marriages solemnized by missionaries and others are questioned ?There must be a very considerable number if you bring into the account the marriages of civilians and military men. 92. Has any question of that sort come into litigation in the Courts in India?-Not that I am aware of. 93. Or in the Courts of Great Britain ?—I cannot speak as to the English Courts. 94. In the evidence that you have given, what do you include under the denomination of India?—The whole of the possessions under the rule of the East India Company. 95. British India ?—Yes, British India. Allow me to observe, this question very materially affects missionaries with reference to their native converts; because those converts naturally look to them as their guides and teachers, having been the instruments of bringing. them from idolatry. If their marriages are rendered doubtful, or any doubt is cast upon their validity, it is exceedingly painful to the missionary, and must impair his influence and interfere with his success. 96. Where there is neither a Church of England clergyman, nor an ordained minister of the Church of Scotland within reach, as in the remoter parts of British India, has any doubt ever heen suggested that a marriage before a military officer or before a civilian would be valid ?No; I should think it was considered valid. 97. No doubt has ever been thrown upon such a marriage?-No; I think it is rendered legal by some local law, but I am not quite sure; and, if such law exist, I apprehend it would have no effect in Britain. Rev. T. Boaz. 98. The doubts that have been cast have been rather upon those marriages which have been See pp. 23, 33 celebrated by Dissenting ministers ?—Yes. 99. And those doubts have been enhanced by Parliament having confirmed the peculiar class of marriages, solemnized by others than clergymen of the Church of England, in the statute to which you have referred ?-Yes. The present position of the question also has this effect; this happened recently; it was noticed in "The Friend of India" a short time ago,-parties living remotely from an Episcopal chapel, and who had no opportunity of going to an English clergyman, became Roman Catholics, for the time being, to obtain marriage. 100. Do the Roman Catholics stand in a different position from the rest of Dissenters? -Yes; their marriages are in the same position as those of the Episcopal Church. 101. Under what law is it that they are in the same position as marriages in the English Church? I am not aware of the law; but I never heard any doubt expressed of it. 102. Is it not because the orders of the Roman Catholic Church are acknowledged by the law of England; that is to say, supposing a Roman Catholic priest was to become a Protestant, he would instantly be a minister without fresh ordination, and consequently no objection applies against the validity of any marriage solemnized by him; it being of the same validity as if it had been solemnized by a Protestant clergyman in orders?—Yes; he being a "priest in holy orders," which is the wording of the English Act. The opinions of the learned civilians in England were, that a marriage is only valid when it is performed by a "priest in holy orders." The Indian marriage licence runs in that form, too; so that a Roman Catholic priest would be, according to the terms of the law and the official documents, that which is required, "a priest in holy orders." 103. How far are the Commissioners to understand that you represent different religious See pp. 14, 29, No. 26. bodies in India, and what is the extent of authority you have to act for them?-I was deputed by the Dissenting community, in coming over to this country, to endeavour to get an Act passed. 104. Is there any Committee or constituted body who act for that community ?-There is a Committee who drew up the last draft Act. 105. Of whom does that Committee consist ?-It consisted of Dr. Duff, as the representative of the Free Church; the Rev. Mr. Pearce, as the representative of the Baptist community; and Mr. Archibald Grant, an attorney, representing the Independents. That draft Act has See p. 25. received the sanction of all the parties interested. 106. Are you yourself a member of that Committee?-I am a gratuitous agent for that Committee. 107. But you are able to assure the Commissioners that your proposal embodies the wishes of the persons composing various religious denominations?-Yes, they have sent it home; and I can give extracts from their letters, showing that it is their own act, and sent to me to be presented to Parliament. N.B.-See, in connexion with the above evidence (No. 103, et seq.), Appendix, Nos. 7 and 8, p. 23; APPENDIX. No. 1. See Evidence, Q. 2. Case, as to marriages of British subjects in India, by persons not in holy orders (embodying Opinions given in 1816 and 1818,) submitted, in 1840, to Sir John Advocate, to Justice of the Queen's Bench,) and to the Solicitor General, (Sir Thomas Wilde, Chief Justice of the Common Pleas,) and to Mr. Serjeant Spankie, the Hon. East India Company's standing Counsel, in 1840. No. 1. Case for Opinion on behalf of the East India Company. THE attention of Counsel is requested to the accompanying two several Despatches from the President of the Council of India in Council, to the Court of Directors of the East India Company, dated respectively the 3d December, 1838, and the 4th February, 1839, together with the several Enclosures therein referred to; by the former of which the attention of the Court is called to a Memorial from certain Dissenting Ministers on the subject of doubts which have been expressed of the legality of marriages performed by them, and applying for legislative interference to remove such doubts, as well with reference to the past as to the future, and by the latter of which attention is called to a communication from the Bishop of Calcutta, on the subject, expressive of his opinion of the entire invalidity of such marriages, and deprecating all legislative interference on the subject, at least until time shall have been granted to himself, and the Bishops of Madras and Bombay, for remarks and observations, and urging especially that the Archbishop of Canterbury may have time allowed to favour them with his advice upon the matters as they arise. [pp. 17, 22, 31, par. 56.] Counsel will also be pleased to peruse the Ecclesiastical letter from India of the 27th May, 1835, with two letters from the Bishop of Calcutta, on the same subject, dated respectively the 21st August and 14th September, 1833, in which the Bishop enters at very great length, as well into what he conceives to be the law prevailing in India, in reference to the marriage of British subjects, as into what he conceives ought to be the law in that respect, and in the latter of which communications he gives a sketch or outline of the points which he thinks ought to be kept in view in preparing a Bill, for the purpose of clearing up the doubts which he has pointed out. Upon this, however, the Government of India remarked, that as the Law of Marriage was understood to be under the consideration of the British Legislature, and as the matter was one which it would obviously be improper to regulate locally without any reference to what might be determined on with regard to other British Colonies and Settlements, it had not been thought necessary to found any proceedings on the letters [Nos. 2—5, 13—15.] Before we set out the Act which passed in the year 1818, in consequence of the doubts then expressed as to the validity of marriages which had been solemnized within the British Territories in India, "by ordained ministers of the Church of Scotland, as by law established," it may be proper to apprize Counsel that the doubts and difficulties which now form matter of discussion were submitted to the attentive consideration of some of the most eminent lawyers of the day, as well common lawyers as civilians, a copy of whose opinions we subjoin. Doubts, prior to 58 G. III., c. 84, as to the validity, for all purposes, of marriages in the East Indies, by ministers of the Church of Scotland, (Chaplains The first of the opinions to which we refer was given by the King's Advocate, (Sir to the Company,) and according to the law Christopher Robinson), and the East India Company's then standing Counsel, Mr. Serjeant of Scotland. Bosanquet, on the 4th March, 1816, upon the question then proposed to them, "Whether marriages solemnized at Calcutta, Madras, and Bombay, by the Scotch chaplains (not being ministers of the Church of England), according to the Law of Scotland, would be valid,' and was as follows: Opinion of Sir Christopher Robinson, and of Mr. Serjeant Bosanquet, as to such marriages, that they were not, for all purposes, valid. Effect of a contract 1. We are of opinion that the law by which marriages are governed in India is the law of England as it existed antecedent to the Marriage Act, 26 Geo. II. c. 33. 2. According to that law a minister of the Church of Scotland is not considered as a person in Holy orders: a marriage therefore celebrated in India by a minister of that Church can act only as a contract of marriage per verba de præsenti, not as a marriage solemnized in facie ecclesiæ, or otherwise by a person in Holy orders. 3. By the law of England, previous to the Marriage Act, a contract of marriage per verba de præsenti constituted a matrimonial engagement which bound the parties to some effects, and particularly so as to render a second marriage void whilst the engagement subsisted; but it did not carry with it all the rights which the law of England annexed to a marriage solemnized by a person in Holy orders. If the husband should die seized of lands in England, it seems that his wife would not be entitled to dower, (See Hale's Notes on Co. Lit. 33, A, Note 10, in Hargrave and Butler's edition; Perkins dower, 306. If the wife should die, it has been decided that the husband would not be entitled to administration of her effects, Haydon v. Gould, 1 Salk 119. Whether the issue of such a marriage would be legitimate does not appear to have been expressly decided. There seems to have been a disagreement on this point between some dicta of great authority in the common law, and the doctrines of Ecclesiastical Courts. 4. We cannot, therefore, advise that the marriages described in the Case are valid in the sense in which we presume the question is asked, that is, so as to afford a complete and undoubted protection to all the very important civic rights that are connected with lawful marriage. 4th March, 1816. (Signed) C. ROBINSON, This opinion having been much considered, it was resolved to take the opinion of ten of the most eminent Counsel of the day, and accordingly a Case (a copy of which accompanies these papers, and to which the attention of Counsel is requested) was laid before the King's Advocate, the Attorney-General, the Solicitor-General, Mr. Serjeant Lens, Sir Arthur Piggott, Sir Samuel Romilly, Mr. Cooke, Mr. Serjeant Bosanquet, Dr. Swabey, and Dr. Lushington, for their opinion. No. 1. Sir Arthur Piggott's opinion favourable to the validity of mar riages (to all intents and for all purposes) solemnized in the chaplains according to the rites of the Church of Scotland, East Indies by and duly registered. Sir Arthur Piggott and Sir Samuel Romilly, not concurring in all points with the other learned Counsel, nor entirely with each other, wrote separate opinions, which were as follows:(a.) I am of opinion that the Marriage Act does not extend to the East Indies. The marriages mentioned in this Case are at least (as no person has denied) to many purposes valid marriages, and considering the place in which they were contracted, and considering also the provision and establishment which have been made there for the Church of Scotland, and the ministers of that Church, for the due performance of all its rites and ordinances, to the numerous members of it in India, I am inclined to think that the marriages contracted in India, and of which the marriage ceremony has been performed by those ministers according to the ordinances of their Church, and by them duly registered and regularly transmitted through the medium of Government, are to all intents and for all purposes valid marriages, but doubts are entertained by persons of experience and authority, whether they are valid and effectual marriages to all intents and purposes, and as many such marriages have been contracted in India, in perfect confidence of their validity, and as important civil and temporal rights in this kingdom, such, among others, as the legitimacy of families, the title to estates, the succession to other property, and the inheritance of dignities may hereafter depend upon the validity and full effect of such marriages, I think it highly advisable that some legislative pro- Legislative enactment visions should, if possible, be obtained to remove all doubts, and to quiet such a question vention of a priest in suggested that interby declaring the presence and intervention of a priest in holy orders, at the contract of holy orders not essenmarriage were not essential to the validity of any marriage in any of the British pos- tial to a marriage in sessions in the East Indies, for any purpose whatsoever, or by such other enactment as shall be deemed more proper for the purpose. If the ex post facto enactment should not be sufficient in its terms to prevent a question of such importance in civil society from again arising, it would probably be thought highly expedient to prescribe at the same time such regulations, de futuro, as would have that effect. A. PIGGOTT, Middle Temple, 14th February, 1818. India. Whether the Common Law of England with respect to marriages ever was established (b.) I think that the operation of the Marriage Act does not extend to the East Indies. Sir Samuel Romilly's I am also of opinion that if the Common Law of England with respect to marriages was marriages did not opinion. that such established in the East Indies, marriages solemnized at Calcutta, Madras, and Bombay confer all the lawful by the Scotch chaplains, according to the forms of the Church of Scotland, though rights of marriage. valid and effectual to some purposes, did not confer all the lawful rights of marriage. Whether the Common Law of England with respect to marriages ever was established in the East Indies is a question upon which I entertain much doubt, and it appears to me to be highly expedient that the Legislature should he resorted to, to remove all doubts upon the validity of such marriages as have already been solemnized, if there be any just foundation for those doubts; and if not, and it should be held to be clear that such marriages are not for all purposes effectual, by positive enactment to make them so, and to settle the law upon this subject for the future. SAMUEL ROMILLY, Lincoln's Inn, February 21, 1818. (c.) 1. We are of opinion, that marriages of British subjects in India are governed by the law of England, but that the particular provisions of the Marriage Act, 26 Geo. II., c. 33, do not extend to India. 2. That marriages celebrated in India by ministers of the Church of Scotland are not to all purposes a legal marriage. 3. That such marriages are binding upon the parties, so that a subsequent marriage by either during the life of the other with a third person would be void. 4. That such marriages in Courts of Common Law would be considered as marriages de facto, and would entitle the husband de facto to maintain personal actions in respect of the property of his wife, but not real actions. 5. That the wife would not be entitled to dower or to bring an appeal of death, or the husband to curtesy of lands in England. 6. That it is at least doubtful whether they would be entitled to administration of each other's goods, or whether the children of such marriage would be entitled to inherit dignities or lands in England, or to administration of the personal property of their parents; or whether, in case of a second marriage, an indictment for bigamy could be maintained. in the East Indies. 7. That as doubts have prevailed upon this subject, it is highly expedient that an Act Act of Parliament of Parliament should be obtained to legalize such irregular marriages as have already highly expedient. taken place, and to declare the law for the future. |