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Published online by Cambridge University Press: 28 July 2009
In 1829, George Millis, a member of the Established Church of Ireland, married Hester Graham before a Presbyterian Minister in accord with Presbyterian rites at the home of the Minister in Ireland. George and Hester lived together for a time as husband and wife, but in 1836, and with Hester still alive, George married Jane Kennedy in a parish church in England.
Editorial Note: The Editors are delighted to be able to publish Mrs Zabel's pioneering study of the origins of the West African Marriage Ordinances in the Journal. Because of the exigencies of space, it has been necessary to sub-divide her article; further instalments will appear in subsequent issues.
2 R. v. Millis (1843) 10 Cl. & F. 534, 8 E.R. 844. The judges of the Queen's Bench of Ireland were also equally divided, and adjudged Millis not guilty in order to obtain the judgment of the House of Lords. In Beamish v. Beamish (1861) 9 H.L. Case 274, it was said that notwithstanding the application of the maxim, R. v. Millis must be treated as a precedent all the same.
3 Chief Justice Tindal advised the Lords that though he was authorised to state the judges’ opinion on the questions and that their opinion was unanimous, the other judges were not to be held responsible for the reasoning which he announced.
4 It is submitted that the decision also cast doubts on post-reformation marriages of the Catholics, but neither prior nor subsequent decisions support this result, unthinkable in Ireland. See e.g., Lautour v. Teesdate (1816) 8 Taunt. 830; 129 E.R. 606; Beamish v. Beamish, supra, note 1; Usher v. Usher [1912] 2 I.R. 445.
5 5 & 6 Vict. c. 113; 6 & 7 Vict. c. 39.
page 65 note 1 7 & 8 Vict. c. 81. Section 3 of the Act provided that nothing therein should affect Catholic marriages which may now be lawfully celebrated but such marriages shall continue to be celebrated in the same manner and subject to the same restrictions as if the Act had not been passed. In 1868 the Royal Commission on the Laws of Marriage in the United Kingdom reported that in Ireland marriages before Catholic priests were valid.
page 65 note 2 19 Cl. & F at p. 800.
page 65 note 3 The Marriage Act, 1836, 6 & 7 Will. 4 c. 85.
page 65 note 4 There is a substantial body of opinion that the case was wrongly decided. See, e.g. 11 Pollock & Maitland, History of English Law, 362. It was modified by subsequent decisions. See Penhas v. Tan Soo Eng [1953] A.C.304. Rightly or wrongly decided, however, the case did have an influence on colonial marriage legislation.
page 66 note 1 Cap. 68, Laws of Nigeria, 1923. The current version can be found in cap. 115, Laws of the Federation of Nigeria and Lagos, 1958. An earlier Ordinance, being Lagos No. 2104, 1863, dealt primarily with registration of births, deaths and marriages.
page 66 note 2 Heavy reliance was placed upon the advice of Chief Justice Mead in the task of unification and revision of laws upon amalgamation. In respect to this task, Lord Lugard wrote:
“The unification of the laws, and of the regulations made under them, was of course the main task of practical amalgamation, and occupied four years. Many far reaching changes were introduced, to some of which I shall allude in Part 3. The pre-existing laws of the North and South were carefully collated, and minor amendments were introduced in all, while their style was altered from the redundant verbiage of former days to the utmost brevity consistent with clearness of diction. The result may I think claim to be as concise and practical a Statute Book as is possessed by any Colony.…”
Report by Sir F. D. Lugard on the Amalgamation of Northern and Southern Nigeria, and Administration, 1912–1919, p. 20 (Dec., 1919), Cmd. 468.
Nevertheless, apart from limiting the succession provisions of s. 36 to the Colony only, there was little departure in 1914 from the previous provisions of the Northern and Southern Proclamations, or of the 1884 Ordinance.
page 66 note 3 Ordinance No. 14 of 1884.
page 66 note 4 Lagos and surrounding area became a Colony in 1862. After a brief interim of administration as part of the Gold Coast, from 1886 it was administered separately by its own Governor. The 1884 Gold Coast Ordinance was extended along with other Gold Coast Laws by the Legislative Council of Lagos in 1886. Minutes of Feb. 13th, 1886, Meeting of the Legislative Council of Lagos, CO 149/1.
page 66 note 5 In the Gold Coast, the section relating to succession was amended in 1909. For Nigeria, see , Harvey, Law of Probate and Succession in Nigeria, 130 (1968).Google Scholar See also , Morris, “Marriage law in Uganda: sixty years of attempted reform”, in Family Law in Asia and Africa, 34 (1968).Google Scholar The Uganda law derived ultimately from the 1884 Gold Coast Ordinance. For other examples, see , Phillips, Survey of African Marriage and Family Life, 268 (1953). Kenya and Uganda followed the general pattern but modified it by special laws for African Christian marriages. See E. Cotran, Restatement of African Law, Kenya, Vol. 1: The Law of Marriage and Divorce, Chapter 1, and Phillips, supra.Google Scholar
page 66 note 6 See generally, Kasunmu, “Intestate succession in Nigeria”, (1965) 1 Nig. L.J.50; Salacuse, “Birth, death and the Marriage Act”, (1965) 1 Nig. L.J. 59; , Harvey, Law of Probate and Succession, 147 (1969).Google Scholar
page 67 note 1 Transcripts of Crown Copyright records in the Public Record Office appear by permission of the Controller of H.M. Stationery Office. The author is deeply indebted to members of the Public Record Office staff for the gracious and expert assistance rendered in aid of this search.
page 67 note 2 I.e. the Clifford Constitution of 1922; the Richards Constitution of 1946; the Macpherson Constitution of 1951; the Independence Constitution of 1960. See generally, T. O. Elias, 1967.
page 67 note 3 Designation of Ordinances Act, No. 57 of 1961.
page 67 note 4 See generally, the Marriage Ordinance, cap. 115.
page 67 note 5 For a summary of the current English law, see Bromley, Family Law, 3rd ed., 1966, pp. 41 et seq.
page 67 note 6 Marriage Ordinance, s. 13.
page 67 note 7 Marriage Ordinance, ss. 18 and 19.
page 67 note 8 Agbo v. Udo (1947), 18 N.L.R. 152.
page 67 note 9 Viz: celebration other than in the office of the Registrar or in a licensed place of worship; celebration under a false name or names; celebration without certificate or licence; celebration by a person not a recognised minister or the Registrar. Marriage Ordinance, s. 33.
page 68 note 1 Ibid.. marriage with a deceased wife's sister or niece is expressly permitted, although marriage with a deceased wife's sister was not allowed in England until 1907.
page 68 note 2 Ibid..
page 68 note 3 Marriage Ordinance, s. 35.
page 68 note 4 Marriage Ordinance, s. 36. For a recent criticism of this provision and colonial marriage laws generally, see Cotran, “The changing nature of African marriage”, in Family Law in Asia and Africa, at p. 14.
page 68 note 5 Marriage Ordinance, ss. 40–49.
page 68 note 6 The Island was first discovered by the Portuguese in 1502. The East India Company took possession in 1659, and except for a few months of Dutch rule, in 1673, held it until the Government of India Act of 1833 vested it in the Crown to be governed by Orders in Council. Although in paragraph one of his letter Rogers alludes to the “Legislature” of St. Helena, the legislative power was in the Governor, upon consultation with an Advisory Council: Sir K. Roberts-Wray, Commonwealth and Colonial Law, 1966, 803.
page 68 note 7 Section 4 of Order in Council dated 12th October, 1835, provided that the Governor was empowered to promulgate laws after consultation with two councillors appointed to assist the Governor under s. 3. Except for emergency legislation, such laws were subject to confirmation by the Crown: St. Helena Ordinances, Orders in Council, Proclamations 1837–1853 (Rev. Ed., MDCCLIV).
page 68 note 8 Preamble and s. 1, Ordinance No. 1 of 1850. The petition also included a request that a certain building called the Mission House, James’ Town be licensed as a place for the lawful solemnization of marriages.
page 68 note 9 St. Helena No. 1 of 1850, s. 2.
page 69 note 1 St. Helena No. 1 of 1850, s. 8.
page 69 note 2 An Etonian, Rogers subsequently took a double first in classics and mathematics, Oriel College, Oxford, 1832; M.A. 1835; B.C.L. 1838. He was elected a Fellow at Oriel in 1833 and remained so until 1845. He was admitted as a student of Lincoln's Inn in 1831 and was called to the Bar in 1837. Although at the time he wrote this letter, he was Commissioner of Lands and Emigration, he later succeeded Merivale as Permanent Under Secretary of State for the Colonies and served in that capacity until 1871. His honours did not end there, but continued with K.C.M.G., 1869; G.C.M.B., 1883; Privy Councillor and raised to the Peerage, 1871.17 Dictionary of National Biography, 1917, 120. An Australian politician has been reported as saying in 1869 that the colonies had “really been governed during the whole of the last fifteen years by a person named Rogers”: 11 Cambridge History of the British Empire 1961, 696. Rogers himself characterised his time in the Colonial Office as a period when two principles were established, being colonial self-government and the emancipation of colonial churches (id., at p. 697).
page 69 note 3 Sir Henry George, Viscount Howick and third Earl Grey, Secretary of State for the Colonies, 1846–1852. Concerning his tenure, his biographers state that his conduct was “governed by his belief in free trade and representative institutions, and his desire to lessen the responsibilities and expenses of the mother country”: 22 Dictionary of National Biography 1917, 686; See also, Butler, “Colonial Self-Government, 1838–1852”, 2 Cambridge History of the British Empire 1961, 386; See also Appendix to this paper, where extracts from one of his policy statements are set out. Among other works, he was the author ofColonial Policy of the Administration of Lord J. Russell.
page 69 note 4 Letter of April 20th, 1851, from Dodson, Doctors Commons, to Earl Grey. C.O. 247/78.
page 69 note 5 Letter of May 6th, 1851 to Governor of St. Helena. C.O. 247/78. St. Helena Ordinances, Orders in Council, Proclamations 1837–1853. The editor states in the table of statutes that Ordinance No. 1 of 1850 was repealed, but later, where the Ordinance is set out, a footnote advises that it was amended by No. 3 of 1851. No. 3 of 1851 contains neither repealing nor amending clauses, and, from the materials that appear above, the more accurate view would be that Ordinance No. 1 of 1850 was not confirmed by the Colonial Office, while No. 3 of 1851 was approved and became the law. It would not appear that No. 1 of 1850 became effective despite Colonial Office failure to confirm. Cf. Pong Wai Ting v. A.G. of Hong Kong (1924), 20 Hong Kong L.R. 22 (decided under Colonial Laws Validity Act, 1865).
page 69 note 6 Herman Merivale, appointed Assistant Under Secretary of State for the Colonies in 1847; at the time of this writing, Permanent Under Secretary of State for the Colonies; appointed Permanent Under Secretary for India in 1859, which office he held for the remainder of his life. His publications were numerous and distinguished: 13 Dictionary of National Biography, 1917, 280.
page 70 note 1 By way of caution, this principle was not uniformly followed. The Gambia and Sierra Leone, for example, leave celebration of marriage largely up to the churches involved: Phillips, Survey of African Marriage and Family Life, 1953, 268. Malta, due to special arrangements between the Crown and the Pope, took an extremely pro-Catholic position: see generally, Confidential Prints on the Marriage Laws of Malta, C.O. 883/4, 5 and 6. Other exceptions are alluded to in the Ceylon material in Part B.
page 70 note 2 C.O. 247/78.
page 70 note 3 The author regrets it has not proved possible to decipher this date. It appears to be 1683.
page 70 note 4 I.e. s. 2 of the Marriage Act, 1823, 4 Geo. 4 c. 76 (publication of banns in the form of words prescribed in the rubric); s. 1 of the Marriage Act, 1836, 6 & 7 Will. 4 c. 85 (all rules prescribed by the rubric shall continue to be observed by persons of Holy Orders of the Church of England); s. 4 of the Marriage Act, 1836, supra (parties to an intended marriage to state to the Registrar names, surnames, profession or condition, dwelling place, time dwelt therein, church or building in which the marriage is to be solemnized); s. 4 of St. Helena No. 3 of 1851, passed pursuant to this letter, provides that the notice of marriage to the Registrar should contain a statement of the name, surname, condition, profession and dwelling place of each of the parties to the intended marriage, and whether each is of full age or not.
page 71 note 1 Marriage Act, 1836, s. 18.
page 72 note 1 St. Helena No. 1, 1850, s. 13, provided that any proprietor or trustee of a separate building used as a place for public religious worship could apply for registration upon certificate of twenty householders that such building had been used by them during one year as a place of public religious worship. St. Helena No. 3, 1851, s. 2, provides for registration upon application by the proprietor or trustee upon certificate by at least twelve householders and countersigned by said trustee or proprietor, that the building had been used by them during one year at least as their usual place of public religious worship (emphasis supplied).
page 72 note 2 For the position of the Established Church and clergy at that time, see generally 13 Halsbury's Laws of England (3rd ed., 1955); 7 Halsbury's Statutes of England (2nd ed., 1949); C. Lovell, English Constitutional and Legal History. 1962, 258; E. Ridges, Constitutional Law, 8th ed., 1950, pp. 348 et seq.
page 72 note 3 St. Helena No. 3 of 1851, s. 15, provides that no clergyman or minister shall be compellable to solemnize marriage between persons not members of his own communion, nor otherwise than according to the rules or custom of sucn communion.
page 73 note 1 Section 28 of Lord Hardwick's Act, 26 Geo. 2c. 33, exempted Quakers and Jews and also excluded marriages solemnized beyond the seas. Members of the Society of Friends (Quakers) continued to be treated as special cases in a series of subsequent enactments.
page 73 note 2 6 & 7 Will. 4 c. 85.
page 73 note 3 Marriage Act, 1836, s. 20. Cf. the Deceased Wife's Sister's Marriage Act, 1907, 7 Edw. 7 c. 47.
page 73 note 4 Marriage Act, 1836, s. 21.
page 73 note 5 Marriage Act, 1836, s. 1.
page 74 note 1 Ordinance No. 3 of 1851, s. 2, appears to have made some small concession to the Church of England by providing that the churches of St. James and St. Paul (presumably Anglican) should be considered for the purposes of the Ordinance as buildings registered for the solemnization of marriages. It is not known whether this St. James is the same as the Mission House, James’ Town, to which reference is made in the preamble to the 1850 Ordinance. The 1851 Ordinance also provided that applications for registration of Anglican Churches should be from the Bishop of Cape Town or persons authorised by him.
page 74 note 2 Probate Act, 1857, 20 & 20 Vict. c. 77. For a discussion of the somewhat obscure origins of ecclesiastical jurisdiction in these matters, see Potter's Historical Introduction to English Law, 4th ed., 1958, pp. 219 et seq. Concerning ecclesiastical jurisdiction over testamentary causes and succession to movables, Pollock and Maitland commented as follows:
“The lamentable acquisition by the ecclesiastical courts of the whole law of succession to movables prevents our common lawyers from having any one consistent theory of the relation between husband and wife.” 2 Pollock & Maitland, History of English Law, 2nd ed., 1898, p. 407.
page 74 note 3 Matrimonial Causes Act, 1857, 20 & 21 Vict. c. 85. Because of the canon law doctrine of indissolubility of marriage, the ecclesiastical courts could only pronounce decrees of nullity or divorce a mensa et thoro (legal separation). Divorce a vinculo was available only to the wealthy and influential through special Acts of Parliament: see generally McGregor, Divorce in England, 1957; Davis, “Matrimonial relief in English law”, in Graveson & Crane, A Century of Family Law, 1957, 311.
page 74 note 4 Burial Laws Amendment Act, 43 & 44 Vict. c. 41.
page 74 note 5 See Dicey, “Counter-currents and cross-currents of legislative opinion”, in Law and Public Opinion in England, 2nd ed., 1962, 348.
page 74 note 6 For a detailed account, see Dicey, Law and Public Opinion in England, 479, supra.
page 74 note 7 Lovell, English Constitutional and Legal History, 1962, 483.
page 74 note 8 The Compulsory Church Rate Abolition Act, 1868, 31 & 32 Vict. c. 109, s. 1. Dicey cites this as an example of the spirit of compromise and accommodation that characterised legislation concerning the church during that period. The tithes themselves were not abolished, only the means of enforcing collection. Dicey, “Counter-currents and cross-currents of legislative opinion”, supra, at p. 352.
page 75 note 1 E.g. The Church Discipline Act, 1840, 3 & 4 Vict. c. 86, discussed in 1 Holds-worth, History of English Law, 6th ed., 1938, pp. 611 et seq. See generally Dicey, Ibid..
page 75 note 2 Dicey, Ibid.., at p. 316.
page 75 note 3 Taken from Dicey, Ibid.., at p. 322. According to Dicey, this extreme proposal was not well received by the English people. The Oxford Movement in the other direction began at about the same time.
page 75 note 4 Dicey, Ibid..; 8 Holdsworth, 2nd ed., 1937, at pp. 402 et seq.
page 75 note 5 Knaplund, “Colonial problems and colonial policy, 1815–1837”, 11 Cambridge History of the British Empire, 1961, 294 p. It should be noted, however, that this was before the 1836 English marriage reform, and that the pro-Establishment policy was vacillating even then.
page 75 note 6 Ibid..
page 75 note 7 Benians, “Colonial self-government, 1852–1870”, 11 Cambridge History of the British Empire, 1961, p. 695.
page 76 note 1 C.O. 885/2, Confidential Print of Papers Relating to the Position of the United Church of England and Ireland in the Colonies (Canada, Nova Scotia, Victoria). Robert Lowe of the Board of Trade was of the opinion that the Church of England was on exactly the same footing as other Christian denominations in the Colonies under discussion, while Merivale appeared to consider the Church more or less established. An early draft of Ceylon No. 13 prescribed the ceremony for religious celebrations, but excepted Church of England celebrations because this was thought to be in effect altering the liturgy, which under the Acts of Uniformity the Queen's Advocate felt the Colonial Office Legislature incompetent to do: Queen's Advocate Report on No. 13 of 1863, C.O. 54/386. Because of protests by dissenters that the Church of England was receiving special treatment, the clause was eventually modified to permit celebration in accord with the usage of whatever faith was involved: No. 13 of 1863, s. 14.
page 76 note 2 (1864) 3 Moore N.S. 114, 16 E.R. 43. See also Long v The Bishop of Cape Town, (1863) 1 Moore N.S. 413, 15 E.R. 756; Merriman v. Williams (1882) 47 L.T. 51. But see Sammut v. Strickland, [1938] A.C. 678; Keith, “Notes on imperial constitutional law” (1938), 20 J. Comp. Leg. 3rd Ser., 254.
page 76 note 3 In re the Lord Bishop of Natal, 111 More N.S. 153.
page 76 note 4 Id., at p. 149. For Colonial Office correspondence concerning curative legislation and opinion on the effect of the Bishop of Natal case, see Carnarvon Papers, Colonial Bishops, and the Church Overseas, 1866–1867, especially May 1865 Memorandum, printed solely for the use of the Colonial Office, on the Effects of the Judgment in the case of the Bishop of Natal: P.R.O. 30/6 172. St. Helena was listed as not affected by the judgment; the Colonial Clergy Act was passed in 1874 (37 & 38 Vict. c. 77).
page 76 note 5 Unfortunately, a copy of the Rogers draft as such was not found in the files.
page 76 note 6 Marriage Act 1898, 61 & 62 Vict. c. 58. See generally Bromley, Family Law, 3rd ed., 1966, p. 38.
page 77 note 1 Obiekwe v. Obiekwe: Unreported: Suit No. 19 E/2D/1962 (Eastern Region), quoted and discussed in Ezeani, “The legal effect of religious marriages” (1964), 1 Nig. L.J. 227.
page 77 note 2 See para. 3 of Rogers's letter.
page 78 note 1 See para. 4 of Rogers's letter.
page 78 note 2 (1843) 10 C. & F. 534, 8 E.R. 844; cf. Catterall v. Catterall, (1847) 1 Rob. Ecc. 580; 163 E.R. 1142. Common law marriage was later held to include other forms of celebration: see generally, Andrews, “The common law marriage” (1959), 22 M.L.R. 396; “Common law marriage” (1958), 7 I.C.L.Q., 205; Cheshire's Private International Law, 7th ed., 1965, p. 296. Even before R. v. Millis was decided, considerable doubts were entertained about the validity of marriages celebrated abroad and several Acts of Parliament had been passed to resolve doubts in particular instances: Holdsworth, XIV History of English Law, 1964, p. 351.
page 78 note 3 Section 13 of the Nigerian Ordinance permits the Governor to dispense with the notice and the certificate, while the St. Helena Ordinance simply empowered him to authorise the Registrar to issue a certificate before the expiration of the usual 21 days.
page 78 note 4 The question of marriage with a deceased wife's sister in the Colonies provoked considerable comment and numerous Bills were introduced in Parliament to make such marriages legal. For a fuller discussion, see Part B on Ceylon.
page 78 note 5 Section 19 of St. Helena No. 3 of 1851 provided that the marriage should be void if any persons shall knowingly and wilfully marry in any place other than the office or building specified in the notice, or without due notice given, or without certificate of notice duly issued. The comparable English provision can be found in the Marriage Act, 1823, 4 Geo. 4c. 76, s. 22, and the Marriage Act, 1836, 6 & 7 Will. 4c. 85, s. 42. The 1823 Act used “persons”, while the 1836 Act read “person”. See generally Section B for clarification of this provision in the Ceylon Ordinances. No. 1 of 1850 had no provision concerning void marriages.
page 79 note 1 The needs of British subjects were later dealt with by the Foreign Marriage Act, 1892, 55 & 56 Vict. c. 23 and subsequent legislation; Foreign Marriage Acts, 1892–1947.