THE COLONIAL MARRIAGES BILL.

New Zealand Times, Volume XXXII, Issue 5062, 14 June 1877, Page 3

THE COLONIAL MARRIAGES BILL.

(Written for the Ncio Xeaimul T lines J

There can be no doubt that in matters of social legislation the Colonial Parliaments have been on some subjects much iu advance of their English parent. The legislation of the colonies has hitherto been conducted almost entirely by those who have travelled half-way round the world, and whose ideas and views have been expanded iu proportion to the extent of their travels. The greater part of the population of New Zealand, even up to the present day, were born in “other climes.” No doubt the rising generation is beginning to come to the front, and is making itself known; but it must take its stamp from the generation which precedes it ; and this moving about and seeing other scenes and other countries of necessity enlarges the ideas and gives a more liberal tone of thought than would otherwise he exercised by the people at large. It gives different experiences; and the colonies have certainly for many years set an example even to the mother country herself for beneficial reforms iu the statute law. We remember years ago hearing a very remarkable speech from the late Bishop of Winchester, who at the time he spoke was Bishop of Oxford, when he was addressing a most sensitive and cultivated audience in his own diocese. The subject was “Education,” and the Bishop, in endeavoring to show the great value of bringing hoys away from their homes, and throwing them together, and so training them for their life in the turmoil and other trouble of the great world after, took as his illustration the old method of making marbles. We notice that, amongst other things, marbles are beginning to occupy very much the same amount of attention in the minds of the smaller youths of Wellington as was described to them by Mr. Serjeant Buzfuz in the celebrated action for breach of promise, Bardell v. Pickwick. But this is beside the question. In referring to marbles, the Bishop pointed out that in olden times it was the practise to manufacture marbles for the use of little boys by what we may call very primitive means. The makers used to get a good stout bag and put into it a number of small cubic blocks of marble. Ihe hag was then carefully fastened up at both ends, and was kept revolving with great rapidity. By this meant the corners were knocked of, and the cubic blocks turned into spheres. In the same manner the sending boys to public schools to associate with other boys, and young men to a university to mix with other young men, knocks off their corners, aud prepares them for their future career. We think it is quite apropos of the subject to remind our readers of the saying of the “ Iron Duke” that the battle of Waterloo was won on the playing fields at Eton. We think that the objects'we have iu view in this discursive writing will be recognised. It is to show that colonial thought is not stagnant, and that the very fact of moving about does tend to expand the ideas and to remove many prejudices and old fancies. It is very difficult to overcome the old associations of many of the English country gentlemen, who will cling to their old traditions; aud they are followed by the agricultural and manufacturing classes. But out here we live in a different atmosphere. Many traditionary recollections, many prejudices which we have imbibed iu our infancy, are dissipated by contact with our fellowcreatures from all parts of the world. The marriage tie is viewed by some people in what we may call a. sentimental point of view. By the Church of Eome the ceremony is looked upon as a sacrament, aud we all know the forcible meaning attached to that word. It is derived from the Latin word “ Sacra men turn,” which was the word used for the oath which the legionaries of Borne used to take to abide by the standards and the eagles of their legion ; and the breaking of that oath on any occasion could only be expiated by death. The Church of England has always regarded marriage as a religious ceremony which should be observed by all, but has always refused to regard it as a sacrament. Many other denominations have also their ceremonies; and many are satisfied with the registry office alone. Until late years it was regarded by the general public as an indissoluble tie—a knot which could not be untied. But such was not really the case. For certain reasons, if they were “ proven,” a divorce could always be obtained; but only by a legal process so expensive that very few persons could afford it. The Divorce and Matrimonial Causes Act has not so much altered the law as it has reduced the cost. But the point to which we have been leading up is this: that a marriage, if it be a legal one, is in the eye of the law a civil contract, binding on all the subjects of the Empire, by which the two contracting parties enter into certain engagements the one with the other, which engagements will be enforced by the Courts of Law. It has happened, however, that the relations of the colonies aud Great Britain, and the establishment of representative governments in the colonies, with power to enact statutes on various social subjects, has led to very considerable intricacies in the law, which are of serious import to many colonists. A colonial Parliament passes a law to legalise the marriage of a widower with his deceased wife’s sister within its own limits, because, of course, an Act of any particular colony could not extend beyond the colony itself. The Queen assents to this Act, by the advice of her responsible advisers, who are, of course, advised by the Law Officers of the Crown, and it becomes the law of the colony in which it passes. But then comes the question, is it a valid marriage in parts of the Empire other than the colony in which it was passed, and will the Courts of Law regard it as valid, and enforce the responsibilities incurred by the parties who have contracted it '! Upon the motion of 'the Honorable Mr. Sewell, in September, 1871, a question was referred for the opinion of the then AttorneyGeneral, the present Chief Justice of New Zealand, to the following effect :—“ Whether in the case of a marriage between a man and the sister of his deceased wife (an Act authorising such marriage having been psssed by the Legislature of the colony) such marriage between English subjects would in England be held to be valid V There was an addition to the motion—that the Law Officers of the Crown in England should also be asked for their opinion on the subject. Our space will not permit us to give the very elaborate opinion given by Mr. Prendcrgast in answer to this resolution of the Legislative Council, but we may quote two passages which will be intimately connected with what will follow. He says; “In the opinion given by three of the Law Lords in the case of Brooke v. Brooke it was considered that the question depended upon the domicile of the parties to the marriage at the time of the marriage ; but one of the four Law Lords who gave their opinions on the case agreed with Vice-Chancellor Stuart and Sir Crc.sswell Croswell, who in the case below expressed an opinion that the law of England in this respect created a personal incapacity, and affected English subjects, even though they should change theirdomieilc and be domiciled in a country where such marriages were allowed by the law of that country. The three Lords above referred to expressly dissented from this view, and considered that there was no personal incapacity.” Just before concluding,he remarks: “I am of opinion, therefore, that if a similar measure is again brought forward, its provisions should apply only to future marriages.” In reply to the question put to the Law Officers of the Crown in England Lord Kimberley writes; “I am advised that, in accordance with the views of the majority of the Law Lords in the case of Brooke v. Brooke such a marriage as the question relates to would be held to he valid in England, provided the parties to it were domiciled in the colony at the time of the 1 marriage.” i (To tie continued.)