IS BIGAMY A CRIME?

Dominion, Volume 12, Issue 246, 11 July 1919, Page 3

IS BIGAMY A CRIME?

IMPORTANT -jJGASE SEVERABILITY OF A STATUTE CONSTITUTIONAL LAW A joint sitting of the two divisions of the Court of Appeal, authorised by Order-in-Council, to hear argument on a case reserved by the Chief Justice (Sir Eobert Stout) for argument was held yesterday. On the bench were His Honour tho Chief Justice (Sir Eobert Stout). Mr. Justice Edwards, Mr. Justice Cooper, Mr. Justice Chapman, Mr. Justice Sim, 'Mr. Justice Stringer, and Mr. Justico Herdman. caso for argument was that of tho King v, James Jackson. Sir John Salmond, K.C., with him Mr. P. S. K. appeared for the Crown, and Sir John Pindlay, K.C., with him Mr. P- \V. Jncljson, for the respondout. Statement of the Case. The case stated by His Honour the thief Justice (Sir Eobert Stout), for the determination of the Court of Appeal on question reserved at the trial of James Jackson was as follows:— In this caso tho prisoner was indicted for bigamy, ho having on January 31, 1912, married one Martha White, then a spinster, at the Eegistry Office, Wellington, and on January 1, 191G, he went through a form of marriage with one Gladys May Morris, at tho Sacred Heart .Basilica, "Wellington, thereby committing bigamy. In the case of Bex v. Lauder, which ■was decided by the Court of Appeal at tho April-May session of this year, Mr. Justice Edwards quoted an extract from the caso of M'Leod v. Attorney-General of Now South Wales (1891, A.C._ -155), which referred to the interpretation of section 54 of tho Now South Wales Crimes Act. which is—"whoever being married marries another person during the life of the former husband or wife, wheresoever such second marriage takes place, shall bo liable to penal servitude for 6evon years." The Privy Council stated that if this Bection were interpreted as meaning "wheresoever in.the world" it would bo beyond the jurisdiction of a Colonial legislature to enact such a law. Tho words used by their Lordships we're these; "Their Lordships think it light to add that they are of opinion that if tho wider construction had bceii applied to tho statute, and it was supposed that it was intended thereby to comprehend cases so wido as those insisted on at tho Bar, it would have been beyond the jurisdiction of the colony to enact such h law."

it was suggested in Lauder's ease that this statement was obiter dictum, but tho Appeal Court by a majority held that it way a decision by which they wore bound. IBs Honour fMr. Justice Chflpmuh adopted that view, and Hi 9 Honour Mr. Justice Sim at tho conchiBion of his judgment said that section 'M of our Crimes Act, 19(18. was ultra yires His Honour Mr. Justice Hosting Maid: "In terms, therefore, our law extends to all British subjects out of New Zealand as well as to all'persons in New Zealand. There seems, therefore, to be no opening for restricting the definition to New Zealand only by applying the rule of construction acted upon in M'Leod's case.

"In this case before ine,' Sir John Findlay, K.C.. and Mr. J?. W. Jackson cippeared for the prisoner, and Mr. P. S. K. Macassoy for the Crown. . Before the prisoner (Jackson) pleaded to the indictment, Sir John Findlay raised the question that it did not disclose any offence, and ho moved that it be quashed, relying on the decision in itex v. Lauder. Ho cited various authorities and dca.lt with the question of the separation of ft by-law in respect ■to which it was held that part might 'be good and tho remainder bad. Mr. Maeat's'ey replied on behalf, of the Crowu, and I .then, delivered..tift.foHowing oral.' judgment:— '. "As -I was one:of:-the Judges of the Court of 'Appeal who heard the case of Bex r. Lauder, I have bid occasion to examine this question beforo coining on to the bench to-day; and in view of the decision in that ease, as far as 1 can see at present, there is no answer to the contention that the Parliament of New Zealand hnd no power to enact 6ec-, tion m of the Crimes Act, 1903. I do •not see, therefore, how this indictment can be allowed to stand. If it can be shown that tho section deals with tiro separate classes of individuals, or with two separate classes of offences, or if there is any power whatever to say that it consists of two parts, then no doubt the Court can hold that one pnrt is good and tho other part bad;- but tho section' does not comprise two parts. It is a definition of bigamy—namely, 'The act of a. person who being married goes through a form of marriage with any other person in any part of the world.' It cannot, therefore, be suggested that the section is composed of two parts; it is one definition—a definition of bigAmy—and I do not know what power the Court has to say that it may lis treated as containing two parts, one of them being valid.

"K-eferenco was made to cases of bylaws, but the position in such cases is somowhat different, i'or example, if there are two classes of people charged with an offence under a by-law, tho local authority by whom tho by-law was mndo may have no authority to punish one class, but may have authority to punish the other; and, that being so, it may hold the by-law partly valid, That is not applicable to the present case.

"I have looked at several' cases bearing On the question—Strickland v. Hayes 1896. 1 Q.B.D. 290), Dyson v. The London and North-Western Railway Company (7 Q.B.D. 32), Bex v. Attwood {i B. and Ad. 481), Elwoml v. Ballock (G Q.B. 353), Hex v. Lumlie (1862. 8 Jur. N.S. MO), Rex v. Paversham Fishermen's Company (8 Term L'ep. 352), and Dodwell v. Oxford University (2 Vent. 33)and also at some of the older cases in the Term Reports, and I can find no authority in England for holding that a law passed by Parliament can bo ■ held to he good in part oaly. "I assume,' however, that in dealing loth a New Zealand statute, there i 3 power to break it as if it were a bylaw. That is the strongest position that can be taken up on behalf of the Crown; and oven supposing that lo bs so, can I then find two separate parts in this section 224 It is one law—one definition of bigamy; and lie >V>urt of Appeal having held that this one indivisible law is invalid, I do not know what authority empowers me to amend it. The statute is not so construed that I can 9trike out one part and let the other part stand; it is not in two parts. "I am therefore of opinion Hint I must quash the indictment, but I shall reserve the question for the Court of Appenl. It Is a very unfortmnto thing that wo in the Dominion should have no power to pass a law of this chara<der. but the Court of Appeal has so decided. Tho prisoner will, therefore, te discharged." The question for ;hc determination of this Court, therefore, was whether the indictment was rightly quashed, and, if not, whether a new trial should be ordered on tho indictment. Dissenting Decision in Lauder Case, In the Lauder case, tho Chief Justice dissented from tho views of (he other learned Judges, and tn id: "The presence of a criminal in tho country does not conduce to the 'pence, order, mid good government' of the Dominion, and therefore our Crimes Act provides power to punish any person in New Zealand who is found to ho a criminal so far ns bigamy is concerned. Jn'my opinion the question of territorial jurisdiction does not nrise in this case, becauso the offender is in New Zealand, and was a New Zealand citizen, and was a British subject domiciled in Now Zealand. I may add that I am of opinion that tho Parliament of New Zealand must be deemed to have control over New Zealand citizens and New Zealand property, and New Zealand industries even outside tho territorial limits of the Dominion. That is necessary for the pence, order, and good government New Zealand. . . . . The circnmsH.iees in this case are j far stronger than in the i'ommonwealHi case, tho prisoner (Lauder) being a native nf New Zealand and domiciled in New Zealand. He was in the flovornnicnt service (a soldier), must bo presumed to have known our law, and ho remains domiciled i" ew Zealand— where bigamy committed anywhere is I punishable if the person who commits

k a Errtish subject, and :'ound in ftcw Zealand. Can it then be euid that the authority to enact laws for Hie pence, order, and good government of Now Zealand did not Authorise the Government of New Zealand to indict him for liigamyi? If our laws are ineffectual' in this respect, the Dominion is placed in a peculiar position; it would mean that a Now Zealand citizen could go to Australia—a. journey of a few days—commit bigamy • there, and return to the Dominion, entering it as an Alsntia. It can hardly be assumed that the State in Australia in which he'may have committed the bigamy has nny duty to deal with New Zealand offenders when they have returned to their own country. 'Why should such a State i?o to the expense of tlio extradition of an offender if it is not contrary to the peace, order, and good government of a neighbouring Slate for him to live there r If, however, it is held that it is contrary to the pence, order, and good government for such an Alsatin to exist, then surely our Constitution Act-has given us power to abolish it." His Honour ield iliat Ihe New Zealand Legislature, in passing section 224 of the Crimes Act, was not violating any principle of international law, especially as it dealt only vith its own fiilijeets and not with tho citizens of a foreign State. Aroumcnt for the Crown. Sir John Salmond, in opening, said that in tho Lauder caso the Appeal Court held that section 224 of the Crimes Act, 1908 was invalid and ultra vires, and in the case of James Jackson His Honour the Chief Justice held that the entire section was ultra vires, following the judgment in the Lauder case. He (counsel) contended that although bigamy committed out of New Zealand might not bo an offeneo in New Zealand, as laid down in tho London case, bigamy in New Zealand was an offence. If the decision of the Chief Justice was correct, tho position of New Zealand would be unique, for it would be like a Mohammedan State, where n man could take unto himself as many wives as he pleased. Thp Chief Justice: Ho could do that !>,• marrying ,jn .Australia and returning fo New'' Zealand. There ie not much difference'. Rtr, John, Salraoivh. The action (824) was severable eo as to leave tne application to bigamy in New Zealand to stand Rcprt, Tho Chief Justice: I liavo not neard of any Imperial law that is part good and part bad. Sir John Salmond: There-are abundant authorities for tho doctrine of severability of statutes, especially in tho United States. Mr. Justice Chapman: There are no British authorities on the matter.

Sir John Salmond, continuing, said that the severability of a statute—the doctrine in its narrowest sense—was that the section in question must be severable both in form and in substance. The section must bo capable of amendment by striking out ultra vires words and leaving the remainder of the section grammatically correct, in .other words it was' not permissible to redraw the section or add words to it or substitute words. All that the Court could do was to strike out the ultra vires words and leave the section without them. That was tho test of severability of form, and section 221 conformed to that. No amwidnienfc whatever was needed, except to strike out the words "in any part of the world." He did not ask for «.nv additions or amendments. The Chief Justice: That should have l.eon done in thoM'Leod case in regard to the words "whosoever" and "whersoevcr." Sir John Salmond: The oueation of severability did not arise in the Mleod case any more than it did in the Lauder | case. I Continuing, counsel said that n further test of severability was that it must he severable in" substance, which meant that the part cut out left the other part substantially corroct. In performine this surgical onerntion, the part that was left miist not be made to mean something that it did not mean before. The meaning of the part that was left must iiol. be altered. ■ .The Chief Justice: If the words are struck out, then subsection 2 would be worthless. . Sir John Salmond: Strike nut the subsection. ;Sub-Seetinn G must be struck out also, as containing idle words. Tho Chief Justice: Is tlr.it not .mutilation ?. Sir John Salmond: I call it permissible severability. Counsel proceeded to quote A'mericnh and Australian authorities bearing on the contention of severability of statutes, and then raised the question as to whether the special Court assembled n'ight not advisedly reconsider the decision of the ' Apnea 1 Court, and hold that section 221 of the Crimes Act, 1008. was

whollv valid. What the Appeal Court had done, he contended, was in reality to limit the powers of Parliament, anil such a decision, might well merit, the consideration of such a Court as was now assembled. Mr. Justice Chanman declared thrf the Solicitor-General hod the right to petition the Privy Council. Case for the Respondent. Sir John Findlny said tto"t be was not prepared to argue the Lauder case, ns suggested by the Solicitor-General. He was in attendance on tire assumption that the Lauder case was rightly decided by the Court of Appeal, and was not subject to the revision of tho present Court, Chief Justice remarked that the Court could not do us the Solicitor-Gen-eral had suggested. Continuing, Sir John Findlny said the simple question to be decided' was whether Parliament had power to pass section 22-1. He contended that the Judges of the Appeal -Court had decided definltelv that the whole section was invalid, or. if there had not been this definite decision, at least the proper deduction from the decision was that the section was invalid.' Dulling with the M'l.eod case, ho said that, although in that case the Privy Council had not definitely stated that an attempt to assume world-wide jurisdiction would make the section of the Now South ■ Wales Act dealing with the subject invalid, that opinion was clearly suggested. The New South Wales law had been held valid only because tho word "wheresoever" was interpreted as meaning wheresoever in the State of New South Walrs, fl nd not "wheresoever in the world." In the New Zealand section the wording was spocifi™Uv "in any part of tho world." The i\ew Zealand Legislature's intention was" clearly to make the jurisdiction worldwide, a power Hint belonged solely to a sovereign State,-and not to n subordinate State. If there was a defect in section 22-1 it should be removed by the Legislature, and not by a mutilation bv the Court, as suggested by the Solici-tor-General. The Court reserved its decision. The Christcimrch City Council decider! at its last meeting Hint in future it would not sit beyond 10.30 p.m. Tho decision was come to half-heartedly at a late hour (says the "LyttelfOn Times"), although both the Mayor and Councillor Agar pointed out that it might tie the hands of councillors very severely in some cases. It was agreed, however, that the council could suspend the operation of the motion at any time, and there was also a tacit ajepemcnt that when the council adjourned leaving its business unfinished it should resume- on the following Monday instead of adjourning for a fortnight. . BOARDINGHOUSES AND THE BUSINESS GIRL. - It is evident that the boardinghousckecper prefers to cater for men rather than for the business girl. In Wellington, tho state of affairs has reached such n climax, that, unless a girl is prepared to pay extremely high for board, sho cannot get accommodation at all. In many cases where a girl is employed in factory, shop or office, tho salary paid is very meagre, and she has to abandon many personal and homely comforts lo enable her to pay her way. Realising tho seriousness of the position, the Young AVomen's Christian Association has decided to mako its present system include the complete management of three boardinghouses for young women. The committee has already secured one more building within ea6y access of the city, but to put it into habitable condition,' extensive alterations and renovations have to be completed, besides which it has to be furnished throughout. In order to "carry on" with this scheme, .£15.000 is urgently required, for which a. public appeal is now being made. Everyone should realise tho urgency of the call and donate generously. Subscriptions will be received by the treasurer, Mr. A. D. Bayfield, Box 1071, Wellington.-(Pub-lished'by arrangement.)