MARRIAGES IN JAPAN (VALIDITY) BILL [Lords]. (Hansard, 21 October 1912)

§ The UNDER-SECRETARY of STATE for FOREIGN AFFAIRS (Mr. Acland)
I think it would be only courteous to the House that I should briefly explain the 1874 objects of this Bill. The Bill comes to us from the House of Lords and is required for this simple reason. In 1899 we gave up, owing to the coming into operation of the Treaty of 1894, the rights to extra territoriality in Japan. Before that marriages had been solemnised in several ways known to the English law and they did not need, owing to our having a system of extra territoriality, any registration by the Japanese authorities here. When the treaty abolishing extra territoriality came into operation marriages, although they still were solemnised in the English Church or before missionaries or in other ways, had to be registered in accordance 1875 with the Japanese law and that was not in some cases realised, and it has been brought to our knowledge that in some twenty or thirty cases marriages still continued to be solemnised in a way that was perfectly legal before without any registration in accordance with the provisions of the Japanese law. So this Bill is merely to say that marriages which would have been legal according to the laws of England and were solemnised after the treaty came into operation in accordance with the laws of England, shall be recognised as valid even though the provisions of the Japanese law as to their registration by the civil authorities were not in the particular instances carried out. The object of the Bill is simply to take away some suggestion that these marriages were not valid and to make them valid, and only to make such marriages valid as would have been valid before the treaty came into operation. I think that explains the object of the Bill.

§ Sir J. D. REES
This Bill has been necessitated through an oversight in the Treaty of Commerce and Navigation in Japan in 1894. Article 20 of which provides that
all arrangements and agreements shall cease to be binding and the jurisdiction then exercised by British Courts in Japan and all privileges and immunities enjoyed by British subjects as part or appurtenant to such jurisdiction shall absolutely cease and determine.
Under the Clause the marriages which bad been previously solemnised were liable to some suspicion. I do not know that it ever became necessary, as it did once in India when I was a member of the Legislative Council, to validate a number of marriages which contained some flaw. It seems to be worth mentioning in justice to a friendly and civilised nation that this Bill is not necessitated by any failure on their part to provide a proper law for marriages, and no omission to look after the interests of British subjects has led to the necessity for this short Bill, but only the fact that the operation of Article 20 of the Commercial and Navigation Treaty was not realised apparently when that instrument was passed. When the extra territorial jurisdiction was abandoned, very much to the satisfaction of Japan and on no way to the detriment of this country, 1876 the validity of marriages was no doubt imperilled and a Bill containing these provisions is greatly to the satisfaction of all parties who were married under the taw of Japan, which has been undergoing various changes so as to place them in the same position in which they were in the days of extra-territorial jurisdiction, when, as a matter of fact, the laws of our own country applied in regard to such portions of Japan as were territorially concerned. Marriages in Japan have formed the subject of a great many novels, writings, plays and publications, and I do not propose to add to the number by a speech. I only wish to express my satisfaction that this Bill has been brought before the House. I believe in its necessity and I wish to point out that it has not been occasioned by any omission on the part of the Japanese.

§ Sir F. BANBURY
I listened with great care to the explanation of the hon. Gentleman, and I understand the object of the Bill is to render valid all marriages which would have been valid if the Ancient Territorial Treaty had not been passed.

§ Mr. ACLAND
Perfectly right.

§ Sir F. BANBURY
Then I am afraid the hon. Gentleman has not read the Bill, or, if he has read it, he has failed to understand it. The Bill has many disadvantages. First of all, it begins with a Preamble. One never knows where one is if you have a Bill which begins with a Preamble. A Preamble has no legal effect. It may, of course, be a debt of honour, but it does not follow the debt of honour will be fulfilled. The Preamble says:—
Whereas doubts have been entertained with respect to the validity of certain marriages (both or one of the parties therto being subjects or a subject of this realm) solemnised in the Empire of Japan since the sixteenth of July eighteen hundred and ninety-nine (being the date when a treaty between Her late Majesty Queen Victoria, and His Majesty the Emperor of Japan, dated the sixteenth of July eighteen hundred and ninety-four came into force), and it is expedient to remove those doubts.
I believe the hon. Gentleman read the Preamble and did not read any more, because if one reads the Preamble he comes to the conclusion that the Bill is going to do what the hon. Gentleman says 1877 it will do, namely, validate marriages before this treaty came into force; but if one goes on and reads that part of the Bill which will have legal effect he finds it does nothing of the sort. Clause 1 says:—
All marriages (both or one of the parties thereto being subjects or a subject of this realm) solemnized before the passing of this Act in the Empire of Japan, which would have been valid if solemnized immediately before the said sixteenth of July eighteen hundred and ninety-nine, shall be and shall be deemed always to have been as valid in law as if they had been solemnized within His Majesty's dominions with the due observance of all forms required by law:
It is rather a complicated way of expressing it, though I presume it is more or less right; but then we come to a proviso, and it is this to which I want the attention of the hon. Gentleman:
Provided that this Act shall not render valid any marriage which before the passing of this Act has been declared invalid by any court of competent jurisdiction, or affect any right dependent on the validity or invalidity thereof, or render valid any marriage either of the parties to which has subsequently during the life of the other lawfully intermarried with any other person.
Therefore the result of this Bill, instead of rendering these marriages valid, is to do this: Suppose a certain person "A. B." has gone into Japan and entered into a marriage which would have been valid if this Treaty had not taken place. He finds, or the lady finds, that their tempers are incompatible, and being rich people they go to the Court, and their marriage is annulled notwithstanding the statement of the hon. Gentleman that it is rendered valid. But supposing they are poor people and cannot go to the Court they are tied for life. There are two eminent lawyers opposite. I challenge them to say that my statement of the meaning of the Bill is not correct. There is much worse to come. Hon. Gentlemen opposite are conniving at bigamy, because they go on to say that this Bill shall not render valid any marriage either of the parties to which has subsequently during the life of the other intermarried with any other person. I will take the case of A B again. A B has married a lady in Japan. He has come over here, and seeing somebody he likes better has married again. The hon. Gentleman legalises that.

§ Mr. ACLAND
It says "lawfully." It cannot be done unless the first marriage has been annulled.

§ Sir F. BANBURY
If the marriage was a lawful marriage why bring in the Bill? It must have been an illegal marriage or the Bill would not be necessary. The result is that if any person is unscrupulous and wishes to invalidate a marriage which both parties who enter into it think at the time was warned, he can commit a bigamy and the hon. Gentleman will give him a clean sheet. But if a husband and wife feel some shame and do not like to make public their differences, although they agree to separate they are to be tied together for life by this Bill. I do not accuse the hon. Gentleman of desiring to mislead the House but before we pass the Second Reading I think we should have some explanation from a lawyer as to whether I am right or wrong. A marriage in Japan is either a marriage or it is not. But this Bill says if you do not like the marriage you can so act before this Bill passes as to have it declared no marriage. But if you are foolish and allow things to go on then it is a legal marriage and there is no getting out of it. There may be some just reason why a Bill of this sort should be brought in. In all probability the Government have been so occupied in other matters, and their draftsmen have been so engaged with other matters—which will continue so long as the House of Commons is blessed with a Government whose sole desire is to legislate without any idea whether the legislation will be good or bad, or will be apprehended by a simple person—that they have brought in a Bill which does not express their real intentions.

§ Colonel GREIG
The House of Lords passed it.

§ Sir F. BANBURY
Am I to hope that at last the righteousness of the House of Lords has become apparent to hon. Members opposite? Has the experience of the last two years shown them that they were wrong, and that the first thing they ought to do is to pay attention to the enactments and opinions of the House of Lords? If that is so, even if I cannot get a satisfactory answer from either of the two learned gentlemen I see before me, I am glad to have elicited from a prominent Member of the Liberal party that if the 1879 House of Lords has said a thing, it is right, and, if it has passed or rejected a Bill, then it is not for us to question their decision, but to act upon it.