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The Pamphlet Collection of Sir Robert Stout: Volume 12

Deputation to the Earl of Carnarvon (April 3rd, 1876) on the subject of acts passed in the colonies of South Australia, Victoria, Tasmania, New South Wales, and Queensland, for legalizing marriage with a deceased wife's sister

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Deputation to the Earl of Carnarvon

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Report of Proceedings.

Amongst those present were Alderman W. Mcarthur, M.P, Lord Houghton, Rt. Hon. Robert Lowe, M.P., A. W. Young, Esq., M.P., Alexander Moartiiur, Esq., M.P., George Leeman, Esq., M.P., Maurice Brooks, Esq. M P., H. W. Freeland, Esq., late M.P. for Chichester; Sir R. R. Torrens, G C.M.G., The Hon. Archibald Michie, Esq. Q C., Agent Genrl. for Victoria; F. S. Dutton, Esq., C.M.G., Agent General for South Australia; J. B. Darvill, Esq., late Attorney General for New South Wales; several Ex-members of the various Australian and New Zealand Legislatures, and many other influential gentlemen interested in Colonial affairs—William Farmer, Esq., Christopher Wyly, Esq., T. H. Sharwood, Esq., Sloper Cox, Esq, A. Triggs, Esq., W. Eykyns, Esq., Georgo Wills, Esq., Henry Wellings, Esq., James Farmer, Esq., Geo. M. Story, Esq., Captain Thos. B. Hanham, R.N., Thomas Eykyn, Esq., C. H. Goodo, Esq., (South Australia). H. J. Richman, Esq., T. F. Gillett, Esq., Edwin May, Esq, J. Wilson Holme, Esq, H. S. Thornton, Esq., Jas. Spicer, Esq., W. Fickus, Esq., W. Westgarth, Esq., (Victoria), Dr Milligan, (Tasmania) &c., &c., &c.

Alderman William Moartiiur, M.P. for Lambeth, said—"I have the honour to introduce to your Lordship a Deputation consisting of gentlemen connected with the Australian Colonies, who wait upon you with respect to a Bill now before Parliament, and in the charge of Sir Thomas Chambers, who would have been here to-day to have replied to any questions from your Lordship, but for an official engagement rendering it impossible for him to come. Your Lordship is aware that in all the Australian Colonies except Western Australia, Acts have been passed legalising Marriage with a Deceased Wife's Sister. Those Acts, with the exception of that of Queensland which now awaits the Royal Assent, have from time to time received the sanction of Her Majesty; and the Colonists feel that they are suffering under a considerable grievance from the fact that there have been conflicting opinions expressed in this country with regard to the legitimacy of such marriages. They feel it to be indefensible, enjoying as they do all the rights of British subjects, that they should be subject to the unpleasant position they are now page 4 placed in,—by reason of their having married their Deceased Wives' Sisters in the Colonies, though under laws sanctioning such marriages,—of finding their offspring declared legitimate in one part of the Empire and illegitimate in England. I am assured you feel that with regard to the inhabitants of Australia, that there are no subjects more loyal or more attached to the British Crown than they are; and in any case, my Lord, they think they ought to have the same right that other British subjects have, to enjoy the advantage of their marriages being regarded as universally and in all respects valid."

Lord Houghton.—"My Lord, this is essentially a Colonial question, and we wish it to be considered as such, and totally apart from any political consideration; we wish it to be argued solely as it affects the rights of property of the Colonists, the validity of their marriages and the legitimacy of their offspring. There will be gentlemen here to explain to your Lordship the uncomfortable and false position in which they are placed by reason of any doubts existing in these matters. They will tell you that when they contracted these marriages no doubt suggested itself, and that the Colonial Legislatures when they passed these Acts, and those who married under them, believed that they carried the validity of such marriages all over the world; and they feel much aggrieved that any doubts respecting them should have arisen in England or elsewhere. Your Lordship is aware that there have been numerous authorities quoted upon this matter, some of them being the highest legal functionaries of this country. The Bill now before the House of Commons was brought in purely as a Declaratory Act for the purpose of declaring these marriages valid all over the world, as the marriages of honest Englishmen, marrying according to the laws of the country under which they live, and who claim their rights both as inhabitants of the Colonies and as subjects of the British Crown. (Hear, hear.) We note that your Lordship knows what the value of those Colonies is to the British Crown; your administration has been one that has known how to reconcile the independence of the Colonies with their rights as communities subject to the British Crown, and we trust you will increase, if possible, their confidence and their allegiance by affirming this Bill which has now been brought under your Lordship's notice."

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The Hon. A. Michie. Q.C., Agent General for Victoria.—"My Lord, when I entered this room I did not expect to be called upon to take part in this discussion, but feeling as I do some interest in this matter, [with which I may be permitted to say your Lordship is as familiar as any one present and more familiar than many of us] I will just say a few words. I have really very little to add to what Lord Houghton has just addressed to you, beyond affording you an illustration within my own experience. There are many gentlemen in this room who are very well aware that there are extremely practical as well as sentimental difficulties connected with this subject as regards real and personal property in the mother country, and that the Colonists have been extremely disconcerted in finding themselves under different aspects of the law. It is almost unnecessary to mention the name of one gentleman who has suffered from this defect in the law, all present know to whom I am alluding without giving a nearer reference to his name. I may say, however, that he was a gentleman who occupied a very high official position, and who had property at the time of his death both in the mother country and in New South Wales. Well, of course different states of the law would be applicable to his children according as they were residing in the colony or here. Here under Lord Lynd-hurst's Act they would be bastards, and in the Colony in the present state of the law the eldest son would succeed to his father's property; and I can conceive nothing more inconvenient, in the event of an appeal coming before the Judicial Committee of the Privy Council, in having to deal with different classes of property, than to have to apply one state of the law to one class of property, which would necessarily be the case, and the other state of the law to the other class of property; in other words, the heir at law to property on the other side of the world would be a man who could be put out of his late father's property in this country, and be subjected to an act of injustice which any wrong-doer might accomplish if he felt so disposed. That would be the evil result of the state of the law in the two countries Of course it may be said that to some extent any such practical difficulties can easily be got rid of by the parent making whatever testamentary disposition of his property he may choose. But that, after all, only half meets the difficulty; because the people in the Colony are in the habit day by day of purchasing property in the mother country; and the mere fact of a man having to take property under such a page 6 testamentary disposition as I have indicated is a badge upon him which he would not have dreamed of, and would prevent many a rich man, I believe, from coming to the mother country at all. It may be said that that is no great evil, that they might do as well if they remained in the Colony; but still these are practical difficulties with which the Legislature will have to deal. I am aware that it is said the Colonists are not entitled to be in a better position than those of the mother country. Well, for what it is worth that argument, is of some significance. Here, however, is a difficulty into which we are plunged by what has become an accomplished fact. Successively the different Colonies have obtained this alteration of the law; for some time, indeed, there was some inconvenience by reason of there being one state of the law on one side of a river and another state of the law on the other. The South Australians obtained an alteration of the law some time before Victoria. Under the law of the latter Colony these marriages were mere forms and of no validity whatsoever; at the same time marriages were taking place on the other side of the River Murray which were perfectly valid and binding. I refer to these instances as some of the practical consequences, leaving all the other considerations of a much more important character to be dealt with by those who are more peculiarly interested in such considerations. I thank your Lordship for listening to such observations as I have had to deliver; and I trust that the very few illustrations I have given will not be taken as at all more than a sample of the mass of cases which I could have brought under your lordship's attention, and which I have no doubt, from their importance, would have received due weight at your Lordship's hands."

J. B. Darvill, Esq., late Attorney General of New South Wales. "I feel, as a Colonist, deeply interested in what will be a great grievance, and I think justly a great grievance to Colonists if it should not be the pleasure of Her Majesty's Ministers to relieve them from it. I should have thought but for the doubts expressed in the various judgments we have heard of, that there could be no question that a marriage solemnized between English men and English women under laws providing for and sanctioning those marriages among Colonists upon whom the right of legislating for themselves has not only been conferred by Her Majesty's Govern page 7 ment but has been further affirmed by the Royal Assent given from time to time, was indisputably valid everywhere. If anything could put a Colonist upon demanding his rights it is that he should be told he is not upon clear and unassailable ground in carryingout marriages of this kind permitted in his Colony although not permitted in England. Her Majesty's Government must have been quite aware that this matter was agitated very much in the Colonies. So long as I had the honor of interfering with the legislation upon the subject in the Colony of New South Wales, no act legalizing such marriages was passed; an Act however has now been passed, and has received the Royal Assent, and the grievance will be felt by every man, woman, and child in the Colony, if children of English parents thus lawfully married could be subject to the indignity of repudiation on coming home, and be taunted with the indignity of being called bastards although the law has received the Royal assent in England. I should have hoped that no legislation on this subject would have been necessary. I should have hoped that the Law Officers of the British Government would have advised that no disability could be imposed, as the difficulties would be countless in which these people would be involved in obtaining their rights of property if the Law be not at once made clear. I can see no hardship in a Declaratory Act being introduced declaring after all that what you have done with your Sovereign's consent has been lawfully done. We only ask that what has been done by Her Majesty's sanction shall be declared to have been done legally, and that you should not impose a disgrace where honor ought to be conferred."

Loan Carnarvon.—"I beg pardon for interrupting you, your Bill goes beyond the present, it is more than retrospective, it is prospective. Your Bill says, 'The issue of all such Marriages as have been contracted or shall be hereafter."

Mr. Darvill.—"Of course those future Marriages must be solemnized within the limits of such Law as the Queen has approved. We will not ask that Marriages should be legalized there that have not received the assent of Her Majesty; but that the Marriages contracted in that Country under the Royal Sanction shall be valid all over the world. We contend that it is a serious hardship that real and personal property should be burdened with page 8 the grievous duty of ten per cent, when the property is inherited by or willed to a Son. Now it never can be the desire of Her Majesty's Government I am sure under your Lordship's advice, to do anything which should diminish that deep feeling of loyalty which is maintained throughout the Colonies; and it would be an unprovoked assault if we were to be told that what we had done wag wrong and could not be recognized in this country. I am earnestly desirous as a Colonist that the deep feeling of loyalty, which no one has been so prominent in maintaining as your Lordship, should be continued between Her Majesty's Government and the people in the various Colonies, but disregard of the present appeal will I feel sure shake that confidence which everybody must hope to see maintained between the different parts of the British Kingdom."

The Right Hon. Robert Lowe, M.P.—"I wish, in the first instance, so to limit what I have to say that I may not be accused of taking up any extravagant position. I don't think that any Enabling Act ought to extend to persons who have gone to the Colonies for the purpose of evading the English Law; nor do I think it ought to extend to any case where the marriage may be considered in the general view of Parliament an incestuous marriage, but nothing of the kind can be urged here, because the Law as your Lordship knows well, as it has been passed, sanctioned the Marriages that have already taken place, which the Colonial Parliaments never would have voted for I am certain if they had looked upon these marriages as incestuous. I have had the good fortune for twenty-five years to listen to arguments on this matter in the House of Commons, and the arguments in many instances always were that these Marriages were forbidden by the Law of God, and in support of the assertion they quoted a certain chapter in Leviticus, but it occurred to some bright genius that so far from that chapter being prohibitive it permitted such Marriages. (Laughter.) So now the question is argued entirely on the ground of expediency, and without any reference to those considerations which I have no doubt would and ought to weigh with your Lordship if you thought we were going to sanction something imperially wrong, and which it was better for the sake of the community should not take place. But your Lordship is asked to page 9 do nothing wrong. It is clear that the Queen would never have given her Assent to this Act had she believed, or if her Ministers had believed that she had been asked to do that which was to legalize anything intrinsically wrong. If the Colonial Legislature had proposed a Law which was wrong no Secretary of State would have dreamed of doing such a thing as allowing it to receive the sanction of Her Majesty; but the fact is, the view of expediency on this matter entertained in the Colonies differs from the view taken of it in this country. The one Parliament think it wise under considerations for the welfare of the country, and for other considerations to take one view of the subject, and the other think it wise to take another view of the subject. But as it is merely a question of expediency I put it to your Lordship in this way, I say it is a matter where the comity of nations ought to apply where it is not applied, and that in a case like this, which is a case on which opinion is divided where the Colonists take one line of view, and the British Government take another, I think it due to them that you should recognize what they have done as being within the legitimate scope of their power and jurisdiction, and that you ought to allow it to be binding for all intents and purposes. Of course as to the policy of such a thing, that is a matter I need not press upon your Lordship, for nothing can be more undesirable than that we should have between the Mother Country and the Colony in any way invidious distinctions. (Hear, hear.) Nothing has been more insisted upon by the Prime Minister and Members of the House of Commons, than the identification of the Colonies with the Mother Country. One Speaker has already said that they are merely Englishmen residing in another place, and in all respects the same; if they are not altogether the same constitutionally speaking, they are the same in feeling, in sensibility and, I think, in morality, and I do not believe that the Colonial Legislatures are a bit more likely than the English Government to sanction any flagrant violation of the moral law. (Hear, hear.) Putting it in this way, and admitting for the sake of argument that the Law of England is against the Enactments in this matter, I cannot imagine a more gracious or more reasonable act on the part of your Lordship than would be done if you could see your way to introduce a Bill declaratory for recognizing these Marriages. I fear if this is not done now the time will come when we shall have to regret it." (Hear, hear.)

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Sir Robert R. Torbens, G.C.M.G., late M.P. for Cambridge.—"We are not here to advocate the policy of legalizing Marriages with a Deceased Wife's Sister; if that were so I could not honestly join in this Deputation, for in my place in the Legislature of the Colony of South Australia and Minister of the Crown there, I opposed the passing of that Measure. But that is not the question which we are to consider now. We are here simply to pray on the part of the Colonists for the redress of a very serious grievance indeed, to which we are subjected by very defective legislation on the part of the mother country. The case is so clear to my mind that I think it needs only to be stated plainly to carry absolute conviction home to everybody as to the necessity for relief in this matter. I will put it in this way, a lady and gentleman in South Australia holding a high position, esteemed by every person of importance, associating with Judges and Bishops are married, standing previously to each other in the relation of Brother-in-law and Sister-in-law, they have married under the sanction of an Act of the Local Parliament, but which I would beg your Lordship to note is of a peculiar character. This case is one of a class which cannot be made legal in the Colonies by any acts coming into force and operation upon the signature of the Government of the Colonies in the name of Her Majesty, but is of a special class, reserved for the express Assent of Her Majesty, and that Assent from the Queen was given under the sanction of repeated administrations as regards different Colonies, and with the concurrence of both great Parties existing in this Country. That is the position that those parties stand in, they have contracted marriage not only according to the law and usage of the Colony, but under a Law to which Her Majesty was in an express manner a party. (Hear, hear.) They arrive in England, having enjoyed full respect and esteem, and the moment they put foot on English ground they are declared to be living in adultery, and their children are proclaimed bastards. That is the state of things—not arrived at by any omission on the part of the Colonial Legislature, but by defective legislation in this country. The thing should have been foreseen, and the law should have been assented to there and here at the same time, and the legislation with respect to it ought to have been carried out simultaneously. (Hear, hear.) It is not possible to have two laws, there cannot be one Marriage Law in England and page 11 another Marriage Law in the Colonies; the effect of which would be to illegitimatize the children of such marriages. I will not take up more of your Lordship's time, but will state that having lived for nearly a quarter of century in these Colonies, I can convey to you what I am satisfied would be the feeling of the Colonies, that the respect for the Crown as concerned in this legislation would be seriously diminished, and the Ministers of the mother country regarded with great disfavour unless redress of this grievance be promptly given. The only objection I have heard raised against giving this relief is, that parties may go from this country to contract a marriage of that description in the Colonies. But that is a possibility which may be easily guarded against; a proviso might be introduced requiring a residence for two years or more as might be deemed sufficient. That, I believe, would prevent the anticipated abuse and remove the only valid argument of any weight against the step we ask you to take. If, my Lord, we put on the one side the possibility of inconvenience of that kind arising in this country, and on the other the monstrous grievance to which the Colonists are subjected, I think your Lordship will see that it is necessary to apply an immediate remedy to the evil of which we complain."

Edwin May, Esq.—"If Government opposes this Bill, will Government bring in or support a Bill declaring what the status of the parents and children of these marriages respectively is? because Government has in some measure been the cause of placing these parties in a position of uncertainty which cannot be justified. It is incorrect to talk of 'putting the Colonists in a better position than the people at home.' You find them in a better position, and you seek to make it a worse one, by depriving it of its natural, and what should be its inseparable rights and consequences, on the ground that you are not prepared to extend the Colonists' privileges to others. Now the Bill only proposes to legalize those marriages which by the advice of a Conservative as well as a Liberal Ministry have received the Royal sanction, or which may hereafter be similarly confirmed. The Colonist wants to know what he is to be punished for? His marriage was sanctioned unconditionally. You joined his hands with the solemn words 'whom God hath joined together let not man put asunder,' and since then he has only changed his house. But if you recognize his marriage what gain or justice is there in disinheriting his child? This trifling page 12 with marriage—declaring a man married at certain points of the compass, and unmarried at others—attaching to this solemn ordinance strange and unnatural conditions, for reasons which, in their direct bearing, ordinary persons cannot appreciate or comprehend, must tend to make marriage become lightly regarded, as being a mere variable arrangement of law and convenience. What compensation can be offered to a country for degrading marriage below the level of a common contract, by making its subsequent validity depend upon the shifting abode of the parties themselves? You go beyond the moral right of human legislation in asserting that any such condition can be attached. The marriage service will become a mockery of God as well as of man, and the ceremony would be absolutely stripped of the sacred character which it has hitherto obtained in the hearts and beliefs of Christians. And for what? Possibly this Bill would tend to the passing of a Bill legalizing these marriages generally in England, but under any circumstances, sentiment must yield to justice, and, surely, it is unjust to postpone that event by means which bear even the semblance of caprice and injustice. This reason can be no answer to the claim of the Colonist."

Lord Carnarvon.—"I am of course very glad to have had the opportunity of hearing the opinions of so numerous and influential a Deputation as that which is now collected in this room. At the same time I cannot help thinking that in some respects you have come rather to the wrong quarter in coming to the Colonial Office. Lord Houghton said that this was purely a Colonial question, but the conversation which has taken place here shews how completely the question runs up into many legal doubts and difficulties. The very first words of this Bill raise the whole of the legal questions, because it affirms that doubts exist as to the legal status of persons who are the issue of these marriages now in question. I must own that it strikes one that the person who could most readily solve these, doubts (and to whom such a question as this might perhaps be most properly brought in the first instance) would be either the Lord Chancellor, or my Right Hon. friend and colleague, my next neighbour over the way, Mr. Cross. In either of those quarters, that of the Home Secretary or of the Law Officers of the Crown, many of the questions raised here would have been page 13 I will not say more familiar, but more suitably urged than upon me. Of course, looking at it from a broad point of view generally, I am met by one great difficulty. First of all I would say that I disagree with those gentlemen who have spoken this afternoon, and who have replied that retention of the present state of things implies anything like a slight upon the Colonies. I can hardly form my mind quite to accept that argument, or to see the reason of it; and still less, with great deference, can I agree with Sir Robert Torrens, when he said that if the present state of things was to be allowed to exist, the unity with the mother country would be regarded with great disfavour. I hope that unity stands upon more solid foundations than that, and that no questions of this kind can shake the feelings of loyalty or attachment to the mother country. As I said before, it is a legal difficulty, one that has to be faced with forbearance on both sides, and to be dealt with and solved in a way that legal difficulties can alone be dealt with. I quite admit that it is to be regretted—no one knows that more than I do, that there should be a difference in the Marriage Laws in different parts of the Empire; but it must be remembered how that difference has come about. For a succession of years Parliament has taken up this question of Marriage with a Deceased Wife's Sister constantly. It has not been a question on which necessarily there has been a very clear division of both parties, for men on each side of the House have voted in cross divisions, and the matter has been discussed in every way, and well ventilated over and over again throughout every part of the argument. But nevertheless there can be no doubt that the expression of that opinion of Parliament has been distinctly and uniformly in favour of retaining the present Law in England.* On the other hand a given number of the Australian Colonies have passed Laws legalizing such marriages. If I remember rightly my predecessor in office recommended the Crown to refuse its sanction to these Acts, and I think two, if not three Acts in South Australia were disallowed, and ultimately on re-consideration of the page 14 matter it was decided by Her Majesty's Government of the day that it was not the policy of this country to interfere any further in the matter, that it was one of those questions that on the whole were supposed to be brought within the province of internal Domestic Legislation, and that, as such, the disallowance which had been previously affirmed ought to be withdrawn. That I think briefly is a lair statement of the case; but then are you justified in so putting your arguments that because the Crown has not endorsed its former disallowance of these Acts, therefore Parliament, which has steadily up to this time at all events maintained a particular policy in respect of these Marriages, should now in consequence of certain Colonial Statutes, which have been passed by servants of the Crown, be required to rescind its opinion and adopt a policy which up to this time it has refused. It seems to me a strong position to take up; and may it not amount to this if followed out, that a Colonial Parliament has nothing to do but to pass Acts within a certain province of the Legislature, and then that the mother country, in order to avoid a discrepancy on these subjects, should also conform its Legislation to that of the Colonial Parliament? I think that would hardly bear arguing, and there is a fairness in Parliament legislating for this country just as much as there is in the Local Parliaments legislating for the respective Colonies. I am bound to say that that is how it strikes me so far as the Colonial question goes.

"On the latter part of the matter I pronounce no sort of opinion; it is one on which I am quite aware considerable doubt has been expressed. Whether there be a doubt in point of law I don't think I can affirm; but unquestionably considerable doubt has been expressed on the subject by legal authorities; and if a clear case of hardship could be made out, it might be for the consideration of the Lord Chancellor or the Law Officers of the Crown to say how far there really was any question attaching to this matter, and how far there are really any doubts as to status or legitimacy. I am quite aware of the importance of the subject. I cannot enter upon the Legal question, I feel I should not be doing justice to it in any way; and I only demur to the arguments which have been

This also conveys an erroneous impression. These Colonial Acts have not only been passed by Ministers but they have actually received the Queen's Assent. page 15 used here to-day, that because these laws have been passed by the Colonial Parliament, by a Parliament of a different construction perhaps, therefore it becomes the duty of the Parliament of this country to conform its legislation to those laws."

Mr. Alderman Mc Arthur.—"We are very much obliged to your Lordship."

The Deputation then Retired.

* This convoys an erroneous impression. The House of Commons has repeatedly passed the Bill for altering the Law by large majorities—in 1869 by a majority of 99, and in 1870 by a majority of 70, when it was rejected in the House of Lords by a majority of only 4, there being 73 Contents against 77 Non-Contents, of which Non-Contents 14 were Bishops.