THE COLONIAL MAURI AGES BILL.

New Zealand Times, Volume XXXII, Issue 5070, 23 June 1877, Page 1 (Supplement)

THE COLONIAL MAURI AGES BILL.

(CONTINUED.)

The report of the debate in tho House of Commons, which concluded the latter part of the present paper, will, we think, present to tho minds of our readers one or two curious

anomalies ; and certainly it will show that often high authorities are at variance upon the same subject. Our readers will remember that the second reading of the Bill has been carried on a division by the representatives of the people in the British Parliament. Now this means to all intents and purposes that the majority of tho people are prepared to accept the principles of the measure. But it is uurious how complicated those legal arrangements may become. Many of our readers will understand, and all ought to, the difference between “real estate” and “personal estate.” And on this difference would rest the decision of the Courts of Law on many important questions under this Marriage Act. Tho right to “ personal estate” and the right to “real estate” are two distinct questions. In order to understand the difference wc must go baCiC to tho old feudal times and examine the maimer in which the old rights to landed es: tate have sprung up. Thu most difficult part, we may say, of a lawyer’s work is tho settlement of a title to the soil. Bat it is time that the question of the law of inheritance should bo cleared up. The question which will occur to the mind of any thinking man on tho subject must come down to this : U it wise that there should bo any doubt on the question of inheritance of “real property” any more than that of “ personal property ?” Why not cany out the principles embodied in the i Land Transfer Act, and the law as much as possible. Those who are at all familiar with 3?arliamcntary practice, and with the difficulty which every private member experiences in getting a Bill through without the cordial support of the Government, will readily understand that there is little chance of the Bill becoming Imperial law this session. But the quotations with which wo shall finish this will, wo think, show that the Bill will eventually, in all human probability, be placed upon tho Statute Book; and when once there it is not likely to bo removed. Having. drawn attention to tho subject, we will conclude our remarks with a few references to a very good article on tho subject, taken from tho Home News. We may remind our readers that at tho end of the previous portion of this paper, it -was reported that in the House of Commons tho second reading of the Bill was carried on a division by 192 to 111. Wc now follow on the course of events with respect to it. We quote from the Home Neivs

“ That the Bill will become law this session is extremely unlikely, seeing that tho Chancellor of the Exchequer has notified his intention of opposing it in committee, and that even after this ordeal has been passed there probobly awaits it in the House of Lords the same reception as has been repeatedly accorded to the measure now identified with tho name of Sir Thomas Chambers. Tho second reading of tho Bill last week was moved by Mr. ICnatchbullHugessen, and tho chief opposition which it had to encounter proceeded from ecclesiastical fanatics or lay bishops of the type of Mr. Beresford Hope, and fossilised High Anglicans like Mr. Hubbard. The technical arguments urged against it by the Attorney-General were singularly weak, and admitted of an obvious retort. If (said Sir John Holker) colonial marriages were fully legalised in the mother country—that is, to the extent of enabling the offspring of such marriages to inherit land in England—the effect would be to complicate still further tho existing complexities of our rnalrlmmutd «yxfcnin. V«»r instance, he said, two brothers might marry in the ; colony, one domiciled and the other not domiciled there. Both marriages would be recognised as valid, and the children as legitimate in the colony ; but if the BUI passed, the issue of one marriage would be able to inherit landed property in England, whereas the issue of the other would bo illegitimate and excluded. Now this is a sort of argument which can alwaj’s be met by citing an analogous hypothetical difficulty on the other side of the •question. For instance, is a colonist who has married his sister-in-law at the Antipodes, and who on returning Home takes in her lifetime another wife, liable to be prosecuted for bigamy ? Liable to be prosecuted of course he would be, bub inasmuch as his sister-in-law is only partially his legal wife—as is proved by tho legal disqualifications in the mother country imposed on his children by such marriage—is it likely that he will be convicted ? Again, the Governor of a colony, a peer of the realm, marries bis sister-in-law, and has issue a sou : this son cannot obviously inherit the family estates in Great Britain. Is lie qualified to inherit tho title from which those estates are inseparable, or is his father's brother, or nephew, to whom by the patent of peerage a reversion will probably have been secured, at liberty to set himself up as a claimant, with something more than a visionary chance of success ? These hypothetical cases may or may not be likely to occur : they arc quite as likely to occur, and quite as rational, as any advanced by Sir John Holkor, and are for our purpose, perfectly valid, since they they show that the statement of an imaginary crax may be met by the statement of another, at once equally imaginary or equally real. “ It was urged on behalf of the Bih by Messrs. Young, Forster, and Ilocbuck, as well as by Sir H. James and Mr. Serjeant Simon, with cogent and unanswerable force, that it will only consummate a gift from tho Imperial Crown which would be a mere mockey to our Australian colonists if they found their children declared illegitimate in England ; that it will connect the colonics by closer bonds with the mother country ; and that it will set a good example to the British people. On the other hand, it was contended that wealthy persons, who wish to contract this particular marriage, will be able to make a pleasure-trip to the Antipodes, and by thus, through a legal fiction, obtaining an Australian domicile, will show that there is one law for the rich and another for the poor ; that the 33i1l is promoted by Sir Thomas Chambers’s friends, and not by bonil fide colonists ; and thet it will create an evil precedent by which the colonics would indirectly legislate for the Empire. As for the last of these allegations, it was sufficiently disposed of by the Solicitor-General of Mr. Gladstone’s Government, Sir H. James. It had, ho remarked, been said that wc wore allowing Tasmania to give the law to England. The answer -was that wc had given the law to Tasmania. So far as concerns the clumsily-humorous plea of Mr. Beresford Hope, that, if the Bill passed, ‘wc should be having placards stuck up at Ludgate-hill announcing marriage-trips to be conducted under tho auspices of the Messrs. Cook, at 10 per cent, reduction, and couples having gone out to the colonies under the tutelary guidance of the Common Serjeant, and his right lion, friend might make tho trip back as the best way of spending the honeymoon,’ the grotesque contingency is one which may be effectually guarded against by inserting in the Bill such a definition of domicile as Mr, Knatchbnll-Hugessen professed himself willing to adopt—‘an express provision that the parties must have lived in tho colonies for two or three years.’ As for tho assertion that tho Bill is promoted by Sir Thomas Chambers’ clients, and not by the colonists, it is impossible to conceive of anything more untrue, in tho first place, nor, if it were true, more wide of the purpose in tho second. Mr. Knatehball-Hugos-sen is a former Colonial Undcr-Sccrctary of fjjtate, and, when lie was speaking in the • House of Commons last week,

ho was notoriously the mouthpiece of a large volume of important colonial opinion and conviction. But let it bo granted that the passing of Mr. Knatchbull-Hugossen’s measure will pave the way for the passing of a measure of a similar kind, applicable to marriages contracted in any part of tho Empire. What then ? Surely that is no reason why justice should not he done to all subjects of her Majesty at whatever distance from tho mother country, and why a cruel slur should continue, to rest upon the offspring of colonial marriages ? As a matter of fact, it is merely a question of time when Sir Thomas Chambers’ Bill, or some Bill like it, will become law. Laws, regarded from a technical standpoint, are the work of professional law-makers ; morally, and so far as concerns tho only safe guarantees of their inviolability, they arc the outcome of public opinion. Public opinion, and to a large extent public practice, are in favor of marriage with a deceased wife's sister in this country ; social justice and domestic expediency demand that such marriages shall be fully legalised. Where the letter of tho Legislature is brought into conflict with the convictions and the custom of a people, there is no doubt on which side the victory will ultimately rest.

“ The arguments which can be adduced on behalf of Sir Thomas Chambers’ Bill and Mr. Knatchbull-Hugcsseu’s Bill arc to a great extent interchangeable—mutually supplement, and reciprocally fortify each other. The prejudice against a man marrying his sister-in-law, whether at Home or in the colonies, is comparatively of modern date, and is of ecclesiastical rather than civil origin. For very many years the doctrine of Lord Stowed, that ‘ a marriage legal where solemnised was legal the world over,’ was considered not only good law but to rule all cases. In 1835 the late Duke of Bucclcuch married his deceased wife’s sister, and on Sept. 1 of that year an Act took effect providing that all such marriages should thereafter be void and not voidable. Prior to this, if the union was not voided by the Ecclesiastical Court during the lifetime of the parents, the children, upon the death of cither parent, were declared to be legitimate. Since that date, from the time of Lord Ly ml hurst to that of Sir Thomas Chambers, efforts have been made, not only to repeal the Act of 1835, but to render these marriages legal ; prejudice has fought foot by foot the question, and now tho religious objection has almost vanished, and the social objections arc almost exclusively dwelt upon. As a matter of fact, these social objections are the products not of experience, but of prejudice. It is noticeable that there exists at the present time no statute explicitly forbidding these marriages in the mother country. The Act of 1835 did, as wc have said, declare that certain marriages hitherto voidable by the ecclesiastical law were henceforth to bo‘ void ; but it did not specifically mention marriage with a deceased wife's sister. In conclusion, so far as Mr. Kiiatchbull-llugcsscn’s measure is concerned, wo need only further say that the several Ministers who have advised her Majesty to sanction tho colonial Bills must have foreseen the difficaltieswhich would arise in consequence, and they should either have vetoed the Bills until the Act of 1835 was repealed, or have been prepared to give the full benefit of the concession to colonists throughout the Empire. Of course tho question must eventually be decided in the affirmative, but, meantime, many cases of individual hardship will occur, and our colonics should rouse themselves energetically to secure Mr. Knatchbull-Hngesscn’s success next year. But before Mr. Knatchbull Hugessen’s measure can bo considered satisfactory, it will be absolutely indispensable, as wc have already hinted, that some clause should bo inserted in it—as a principle of the Bill, and not a detail to bo altered in committee—explaining beyond the possibility of confusion or mistake what constitutes a domiciled resident of the colonies, and what are the circumstances under which colonial domicile is terminated.”

We think the latter paragraph in the article wo have quoted to bo the most important of all. At the same time it is to bo hoped that the law upon the subject may be finally settled, and that all doubt may be set aside as to the legitimacy or otherwise of the children of English subjects. There is no doubt that Conservative feelings are valuable in the present day, in the face of tho convulsions which -ma-y- take place at any moment ; but our opinion is that there oaimotposslidy bo any reason that a child born of parents who are British subjects should run. the risk of being, so far as tho inheritance of real estate goes, called a bastard in one portion of the Empire and legitimate in another. Every thinking person must hope that Mr. Hugesseu (who, by-thc-bye, comes from an old Tory family in Kent, but is in politics an advanced Liberal), may be able in duo course cf time to carry his Bill, and by doing so settle a question which has become of very considerable social importance, and which, if not made retrospective will, we believe, be very useful iu the future.