HL Deb 08 July 1898 vol 61 cc283-308

Order of the Day for the Second Reading read.


My Lords, I have to ask your Lordships to give a Second Reading to the Colonial Marriages (Deceased Wife's Sister) Bill. I have very great diffidence in appearing to address you at this time, as it is the first occasion on which I have had the privilege of addressing you as a Member of this House. Notwithstanding, it is also with very great confidence that I come before you, my Lords, as I know that you will have much consideration for one in the position I occupy. It is not proposed in this Bill to deal in any way with the question of marriage with a deceased wife's sister within the United Kingdom. I may, however, advance as a reason for the favourable consideration of the Bill now before your Lordships, that a Bill for the legalisation of a marriage with a deceased wife's sister was passed through all its stages by your Lordships so recently as 1896. It would be out of place for the Colonies, however, to press that question upon the people of the United Kingdom, and I shall not raise the issue at all. They must decide it for themselves. Neither is it proposed that the Bill should apply to the marriages of transients. This statement must also have its weight with those who may be opposed to such marriages within the United Kingdom. The Bill only purports to deal with marriages in the Colonies of legally domiciled residents, and in order to remove any doubt upon the point the Bill, if it passes the Second Reading, will be amended in Committee, with the permission of your Lordships. The Bill is also surrounded by other safeguards to prevent its provision being abused. The Bill is simply an act of justice to the Colonies in which marriage with a deceased wife's sister has been legalised with the actual consent of the Crown, and with the tacit approval of Her Majesty's Government and of the Imperial Parliament. In respect of the succession to real property, the children of such legal Colonial marriages are, in the United Kingdom, regarded as illegitimate, and cannot take such property by descent, and it is believed that they may be liable to other disabilities. It is to remove this stain from children who have been born in wedlock, rendered lawful by laws passed by Colonial Legislatures, and approved of by responsible advisers of the Crown in the United Kingdom, that the Bill has been introduced. A similar Measure to that now before your Lordships has met with the approval of the House of Commons on more than one occasion, and I believe I have considerable authority for stating that such marriages legally contracted in the British Colonies would be held as valid for the succession of real property in almost any country in the world except in the United Kingdom. I appeal with confidence to your Lordships to agree to the Second Reading of the Bill by a large majority, and not to let it go forth to the world that you wish the children of marriages lawfully contracted in the Colonies, under Acts approved by the Crown, to be in effect branded as illegitimates in the heart of the Empire—in this their Motherland. The inhabitants of the Colonies are as much British and as much subjects of Her Majesty as your Lordships or any other residents of the United Kingdom, and they are accustomed to refer in terms of affection to their Motherland as home. It cannot be said, however, that those of them who contract such marriages in the Colonies are at all encouraged to come home, and those who are not intimately connected with the Colonies cannot appreciate the intensity of the feeling which prevails in the Colonies on the subject. I feel sure that I may rely upon the support of those of your Lordships who have had the privilege of representing Her Majesty in our great self-governing Colonies. On previous occasions it has been said that the desire for legislation does not proceed from the Colonies. In that connection I may state that I am introducing the Bill with the approval of the Government of Canada; and, further, that I hold in my hand telegrams from the Premiers of most of the Australasian and South African Colonies, endorsing the Bill in the strongest telegraphic language. Surely no better evidence could be brought forward to prove that this legislation is desired in the outlying portions of the Empire. I have a telegram here from the Premier of New South Wales to the Agent General of the Colony, as follows— I authorise yon to make strong representations in favour of Marriages Bill. The Agent General for Victoria has received a telegram from the Premier of that Colony instructing him to co-operate most cordially in support of the passage through Parliament of this Bill. The Premier of South Australia telegraphs to the Agent General as follows— Join other Agents General in representing most strongly to the right honourable Gentleman the Secretary of State for the Colonies that the Government approves of the Marriages Bill. The Premier of Western Australia telegraphs to the Agent General as follows— Make urgent representations in concert with Australian Colonies on behalf of Government here in support of Lord Strathcona's Marriages Bill. The Premier of Queensland telegraphs to the Agent General as follows— I authorise you to make representations in favour of Lord Strathcona's Marriages Bill. The Premier of Tasmania telegraphs to the Agent General as follows— Report strongly in favour of Lord Strathcona's Bill. The Premier of New Zealand telegraphs to the Agent General that— The Government cordially approves of the Colonial Marriages Bill. The Agent General for the Cape of Good Hope states that— The Government and people of the Caps Colonies are distinctly favourable to the Colonial Marriages Bill. It has been said also that to pass the law would be invidious, as it would make the marriages contracted in the Colonies legal in the United Kingdom, the principle of such marriages not yet having been accepted in this country. In my judgment there is no parallel between the two cases, and the argument is not sound. Such marriages are not legal in the United Kingdom, and the question does not therefore arise in the same way; but such marriages are legal in the Colonies, with the assent of the Crown, and why should the children of such marriages when they come home bear a mark of disgrace? Why should they be legitimate in one part of the British Empire and illegitimate in another, when the marriage is perfectly legal, under laws passed by local Parliaments and assented to by the Queen? It may sometimes happen that persons contracting such marriages are obliged to come home—by family affairs or otherwise—and what a welcome they and their children receive! Such an Act, if passed, does injustice to none, but would extend justice, and would prevent injustice, to many. As the law now stands property in the United Kingdom might pass away from a family to others, simply because marriages that are legal in, say, Canada are not recognised as legal here. Is this a creditable state of things in our present civilisation? I am sure I need say no more to commend the Bill to your Lordships' favourable consideration. For some years past the different parts of the Empire have been drawn close together. The troops of the Colonies have fought shoulder to shoulder with those of the Motherland. Her Majesty's subjects in the Colonies have shared in the joys and in the sorrows of their Motherland. Glad people from every part of the world where the British flag is paramount came to London last year to do honour to their beloved Sovereign. Then, again, to come to more material matters, British goods are receiving preferential treatment in some parts of the Empire, and the feeling in favour of its extension to others is growing. In fact, we are all doing our best to develop the Empire of which we are so proud, and to strengthen the ties which bind us together, and the removal of this grievance cannot fail to further consolidate the union. Let me therefore appeal to your Lordships to express your approval of this Bill, which seeks to remove what is regarded as a grave anomaly in the Colonies, to remove a restriction which operates against one of their most sacred rights, and to free the children of your Colonial brethren who contract perfectly legal marriages from the stigma which now attaches to them when they come to their Motherland. I may also be permitted to address a word to the most reverend and the right reverend Lords in this House. It is that the clergy, both of the Established Church, of the other Protestant denominations, and of the Catholic Church in Canada, and I believe also in the other Colonies, have accepted this Bill, and unquestionably many of them approve of it. I would now, my Lords, in closing, desire to say that I stand here—it is by the gracious will of the Sovereign that I have the privilege—as a colonist, as one of those coming from the Colonies. Every man in the Colonies looks upon himself as being as much an Englishman as if he were born within the bounds of the United Kingdom. He glories in the name of an Englishman, and he has all the aspirations that you and all those who are loyal to the Empire, have. This Measure affects—and affects very gravely—many in the Colonies, from the Minister of the Crown to the artisan, and many of them the most worthy and the most loyal. I would withdraw this last expression, "the most loyal," because it is unquestionably the case that throughout the Dominion of Canada, and I believe I can speak equally for the whole of the Colonies, there is but one standard, but one measure of loyalty. Such being the case, and feeling as they do that they are, equally with those in this country, members of the great Empire to which we all belong, I am sure that you, my Lords, will on this occasion send a message of goodwill to those who are in the position that has been referred to, that you are desirous of doing full justice to them. I leave this Measure in your hands, and I trust that it will be passed, not by a narrow majority, but that you will give it a Second Reading unanimously.


My Lords, I hope the noble Lord who has just spoken will believe that, in opposing this Bill, I do not yield to him or anyone in the desire to exhibit respect and regard for our Colonial fellow-subjects; but it appears to me that it is not inconsistent with our respect and regard for each other that this country should claim to be entitled to have some consideration for the preservation of its own laws, while recognising the right of the Colonies to have some laws peculiar to themselves. I confess I do not regard this Bill as being what it purports to be— An Act to amend the law as to marriages contracted in the Colonies with a deceased wife's sister. I am not quite certain that it might not, perhaps, have borne that character to some extent as long as it remained in its original form. The noble Lord has informed us that there was a doubt—I confess I do not know where the doubt can be—that as the Bill was originally framed it would have allowed anybody to go from this country to the Colonies to be married, and come back again, notwithstanding that the law in this country would have made such a marriage invalid. He now proposes to introduce, as a qualification of the operation of the Bill, that the parties to the marriage should be domiciled in Canada.


In any one of the Colonies in which the marriage takes place.


In one respect that may be very satisfactory, but it appears to remove from the Bill the character and the title it bears. It has nothing to do with Colonial marriages. It does not affect Colonial marriages. What does it do? And the only thing it does is to alter the law of inheritance in England as to realty. That is the operation of the Bill. And it appears to me it is an unreasonable thing that the Colonies should suggest that there is any injustice done because we desire to maintain our own law of inheritance in this country. I wonder what the noble Lord would say if we were to introduce into Canada some of our peculiar tenures and rights of inheritance such as gavelkind and borough-english. I think he would say it was intolerable tyranny to impose on Canada laws of inheritance which have long obtained here but are unsuitable there. My Lords, I say this Bill has nothing to do with the question of marriage with a deceased wife's sister. It does not directly affect it, but it is obvious enough that it is intended by indirect means to remove one of the consequences of marriage with a deceased wife's sister in this country, and so facilitate that question here. When that question comes to be debated it will be debated on its merits. I do not deny that opinions on the subject are divided in both Houses of Parliament. A Bill legalising such marriages has never received the assent of the Legislature, and until then I do not understand on what ground it should be a Colonial grievance that the consequences of marriages which we think are not lawful should not follow in respect of land in this country. It is inverting the order of things. You try to prevent the consequences of a law as applicable to English land, and, having done that, you think it would be more easy to get rid of the law itself, because you have got rid of one of the consequences of the law as it at present exists. No doubt, if we remove the consequences of disobeying the law in England, it will be much more easy to get rid of the law itself; Taut are we to recognise a marriage in any part of the world, however contrary to English views? It is argued because this country has sanctioned such marriages elsewhere we must accept the law for ourselves with all its consequences. The argument is not new. I observe that Mr. Roebuck, in one of the discussions in the House of Commons, made use of the argument with reference to some parts of India, where marriages were allowed between a Hindoo brother and sister, and that we ought to allow it to carry the right of inheritance in this country! The logical conclusion of the argument of the noble Lord is that we are to recognise any marriage in any part of the world. It appears to me that it is an unreasonable application of the general desire we have to allow our Colonies to govern themselves. It is not to govern themselves, but to govern us, and to induce us to alter our law of inheritance in accordance with their view. If it is suggested that our law of inheritance is defective, then let us amend it. No doubt cases may be put, as they may be put in almost every region of thought, where you bring things so near the line that you may say that one is an absurdity and anomaly, and another is not. If the law is wrong amend it; but so long as it is the law the Colonies have no right to dictate to us in what form we will allow our law to operate. To my mind the law is intelligible. It distinguishes between personalty and realty, or what in other countries are called movables and immovables. It is not unreasonable that the law should allow inheritance of land only to persons whom, in England, we regard as having celebrated a legal marriage. The concession the noble Lord proposes would, to some extent, modify the mischief of the Bill in one respect—it would prevent people going to the Colonies to evade the law of this country, and make a valid marriage, and come back. But in other respects it would make the matter much worse, because the moment you introduce this question of domicile as a condition precedent to the validity of marriage you introduce a degree of uncertainty and difficulty in establishing the rights of inheritance, which certainly is not desirable. No doubt we have to deal with this question sometimes as it is. That is no reason for increasing the difficulty, and in such a manner as to give rise to serious and greater difficulty hereafter. When we are dealing with the validity of marriages it should be remembered that that validity affects more deeply than anything can possibly do the happiness of those who have to rely upon them and the consequences to the issue. When you are dealing with the question of validity or invalidity of marriage, depending on domicile, you have to investigate it under circumstances of great difficulty as to what has or has not been a true domicile. It is suggested that it is easy to establish domicile, but I have no fewer than 10 definitions of "domicile." I will not trouble your Lordships by reading them. The law of domicile has reference not only to English land, but what is received in all civilised countries as the law of domicile. English judges have certainly not underrated the difficulty of defining the term "domicile." Their language, on the contrary, generally points to the two conclusions—first, that a satisfactory definition of "domicile" is, from the nature of things, unattainable; and, secondly, that, even if the term be definable, every attempt to obtain a serviceable definition has hitherto ended in failure. It is proposed in the Bill to make the validity of these marriages dependent on where the parties to them were domiciled at the time when the actual marriage took place. That would mean, perhaps, that 30 or 40 years after the marriage investigation would have to be made to ascertain if the parties to the marriage had settled at such place with the intention of remaining there, unless unforeseen accident should induce them to go elsewhere. I do not believe that, except for the indirect object to which I have referred, this is a question which is practically important to anyone. The acoustic properties of this Chamber are certainly not amongst its most conspicuous advantages; but, so far as I have been able to hear—and I apologise if I am mistaken—the noble Lord has not given a single example in which the question had arisen as to the rights of children born of such marriages to inherit property in this country. This is an abstract proposition of law that the Colonies desire to establish for our benefit. Why should they? There is no agitation for the Bill. May I take the analogous case of Scotland? In the case of Scotland offspring legitimatised after marriage can inherit, and though they are debarred from inheritance in England, there is no agitation in Scotland that their law should be recognised here. It comes to this, that because there is a general desire in the Colonies that marriage between a deceased wife's sister and the husband should not be prohibited, the law of inheritance in this country is to be entirely altered in favour of that view. Much as we desire the affection and regard of the Colonies, I submit it is not for the Colonies to dictate to England what England should do as to the English law of inheritance. This is no new question. I need scarcely remind your Lordships that a similar question was propounded to your Lordships in 1235 by the Norman priests, in order to introduce the Norman law of inheritance into England; but this House then said, "We will not allow the laws of England to be changed." On this ground I submit to your Lordships that this Bill would be a very bad precedent; it would not rest here. We have given the Colonies entire freedom in respect to their own land and their own legislation. Surely the Mother country is not to be the only country in the world which is not to be allowed to have its own law of inheritance. I beg to move that the Bill be read a second time this day three months.


My Lords, my noble and learned Friend the Lord Chancellor, I am sure, wishes it to be known that he is expressing his individual opinion only, and not speaking collectively on the part of his colleagues, and I hope—in fact, I have reason to believe—that he will not disapprove of my emphasising that position if, briefly, I ask your Lordships to listen to a few words in opposition to the arguments of my noble and learned Friend. My noble and learned Friend and I enjoy the advantage of having rehearsed the arguments which he has addressed, and which I will endeavour to address, to your Lordships on this question. It is 20 years ago since I heard my noble and Learned Friend the Lord Chancellor make somewhat the same speech that he has made to-night, and I am sure he will be able to say, when I have concluded my remarks, that he has heard me make a similar speech before. I look back on that rehearsal with satisfaction. It was during the Parliament of 1874 that a similar Bill to this was presented to the House of Commons, and my noble and learned Friend at that time addressed to his Conservative colleagues, who were in a great majority in that House, the arguments that he has addressed to your Lordships to-night, and the Members whom he addressed, by a majority of 51, disregarded the arguments of my noble and learned Friend. But, my Lords, a good deal has happened since that time. When we were discussing the matter in 1877 and 1878 I think only three Colonies had passed Bills validating marriages with a deceased wife's sister. At the present moment every legislative Colony, I believe, with one exception, has passed Bills making these marriages legal. The responsibility does not rest only with the Colonies. If those laws were immoral, unjust, or impolitic, they ought not to have received the assent of Her Majesty's advisers at home. Such advice has been well considered, and I would venture to remind my noble and learned Friend that the most important approval in respect of those Measures was given to Jersey, near at home, where the effect was more likely to be brought to England; and that approval was not given longer ago than in the year 1896, after the experience of the effect of these laws in the Colonies. I hope your Lordships will allow me very briefly to remind you of what the law is in this matter. It is true that these marriages are valid in the Colonies and they are valid here. If a man, after having contracted one of these unions, came to this country and married again whilst his wife was alive, he could be indicted for bigamy, and would be liable to punishment for that offence in the courts of this country, because there would be a valid marriage against him. There is also the fact that these marriages are so valid here that the children of such marriages, having been born in wedlock, do inherit personal or leasehold property descending from their parents. My noble and learned Friend is perfectly content that the children of such marriages shall take leasehold property existing for 999 years, and yet he shrinks from the prospect of their enjoying real property or freehold. The result is as stated in former Debates, that a man who has contracted one of these marriages, and who comes to this country and takes possession of a leasehold house, and afterwards builds a stable on a piece of freehold land, is a married man in his house and a widower in his stable, and his son may sit at his table as legitimate, but the moment he goes into the stable he becomes illegitimate. There is this still greater anomaly: a man dies with children born of this lawful marriage, and these children have to pay some of those numerous duties affecting the estates of persons after death. I will take the legacy duty, for example. He leaves behind him a legacy of leasehold, house, which is personal property. The proper official on behalf of the Government appraises the duty, and he holds the children to be the legitimate children of A. B., and as such they pay 3 per cent. duty. But the same official, having to deal with the same will and the same testator, and with virtually the same property, has to declare that, because the deceased left freehold land, the same children are illegitimate, and that they are not the children of A. B., but are strangers in blood, and therefore have to pay 10 per cent. May I ask my noble and learned Friend how he would satisfy the conscience of that official? My noble and learned Friend has asked, "What right have the Colonies to dictate to the Mother country?" I cannot see why it should be said that Lord Strathcona is dictating to you. In what sense are the Colonies dictating? They are seeking to do nothing without the sanction of both Houses of Parliament and the approval of the Crown. Surely, when they come to this House or the other House of Parliament and say, "We place before you arguments which we think are valid," it is not right to assert that they are dictating to us. I should be sorry if any colonists should suppose that the doors of this House or the other House are closed to them, and I am sure my noble and learned Friend would not wish them to suppose that. But I would ask him to consider whether it is not really a wrong impression to convey that there is anything worthy of censure in the appeal made to us in a constitutional way to alter a law which is anomalous and unjust. Surely the Colonies had better appeal to us within the walls of Parliament than agitate against the Mother country outside them. My noble and learned Friend made very strong use of the argument that we should not, at the dictation, of the Colonies, allow any interference with the law of inheritance in this country. I assure my noble and learned Friend that there is no desire to alter the law of inheritance. The law of inheritance now is that a man's children, lawfully born in wedlock, shall succeed to his property. The question is whether all children born in wedlock shall or shall not be regarded as the lawful and legitimate children of the parties for all purposes. That alters the status of the individual, but the law of inheritance will remain in this country as at present. My noble and learned Friend's argument that there is no real grievance here, because no instance has occurred in which anyone has been affected by the present state of the law, is rather an argument in favour of the Bill; for, if it would make no difference, why not accede to the wishes of those who desire the alteration? We must remember, though, that these Bills have not been passed very long in all the Colonies, and cases in point might not yet have arisen. Are you going to allow the law to remain as at present, and permit of a state of affairs in which, if a man who was lawfully married in one of our Colonies, and whose children have been born in lawful wedlock, should desire to return and enjoy his remaining years at home, his children would for the purposes of heirship to land and honours have always the stain of illegitimacy in this country? My noble and learned Friend used the argument that there would be great difficulty in proving what domicile was. Your Lordships will, of course, understand that this Bill is intended to apply not to the mere passenger who goes to a Colony for the purpose of marrying, but only to domiciled colonists. The Bill will be presented to your Lordships in that form for Third Reading. The domicile will have to be proved in this country before a jealous tribunal in the case of a person who seeks to obtain land. It is not a question of what the law is in the Colonies; it must be domicile according to the law of this country. The same difficulty would apply if a person came here and appealed to obtain possession of that property to which I have referred—leasehold of 999 years. Whatever the difficulties in defining domicile, its application is not very difficult. There has never been any difficulty in determining domicile, and I believe there never will be any difficulty in the future. My noble and learned Friend said he did not believe there was any real feeling in the Colonies on this subject. If it were a mere matter of sentiment, probably you would not listen to such a demand; but it is not sentiment for a man to say, "I wish my child to be certain of his legitimacy on returning to the Mother country." Two years ago the Agents General of all our legislative Colonies were instructed directly by their Governments to appeal to the Colonial Office for assistance to carry this Bill, and last year the Colonial Prime Ministers, every one of them, in a body approached the Colonial Secretary and begged his assistance. You have, therefore, this twice-repeated appeal from the Colonies. Your Lordships have the privilege of having amongst you many Members of this House who have been Governors, representing the Queen in our Colonies. I know a good many of them; some of them have already given proof of the fact that they approve of this Bill. I would ask my noble and learned Friend, when the record is made of those who vote on this question, to see if one of these ex-Governors of our Colonies will say "Not content" to this Bill. They know the feelings of the Colonies they have ruled over, and the wishes of the people, and I now make the statement that I do not believe that any one of those distinguished men who are ex-Colonial Governors will do other than give his support to this Bill. I regret that I should have occupied so much of your lordships' time, but long ago I became convinced of the justice of the demand made by this Bill, and as time has passed on that conviction has grown and become firmer. It is this feeling and faith that have caused me to address your Lordships with almost too much earnestness, and also to take the course, which I do with much regret, of opposing the views of my noble and learned Friend on the Woolsack.


My Lords, I venture to ask your Lordships' indulgence for one moment. It appears to me that the speech we have just heard confirms the opinion I have long entertained, which I believe embodies the only solution of all these questions, and which has the advantage of being founded upon a hint that was thrown out by the noble Earl, Lord Kimberley, two years ago in reference to a kindred matter. My Lords, it is not to be denied—the speech of the noble Lord who has just sat down proves it up to the hilt—that our marriage law is at the present moment absolutly anomalous. There is one law for Scotland, another for Ireland, and a third for England. We have a different law in regard to the Colonies, and perhaps we may have a fifth law for India. I cannot understand anyone approaching this question and not coming to the conclusion that such an anomaly is one which it is the duty of the Legislature to remedy if it can. We are all agreed that it is desirable to draw closer and tighter the links which unite the Mother country with the Colonies. We not only desire to draw the links closer, but we are at this present moment rejoicing in an increase of friendship and good feeling between this country and the United States of America. In view of the anomalies which, as Lord James of Hereford has pointed out, exist between the law in the Colonies on this important subject of marriage and the law in this country in regard to a matter which touches the devolution of property and the legitimacy of children, I venture to suggest that it would be well within the wisdom of Her Majesty's Government to consider the question of appointing a Commission, which need take a very short time to consider the whole condition of the marriage law as it affects the United Kingdom and the Colonies; and if, as the outcome of that Commission, We were able to arrive at some uniform law which should apply equally to this country, to Scotland, Ireland, and the Colonies, I would suggest that that law should be embodied in a Statute, and that civil marriage Should be compulsory upon everyone, as is the case, under the Code Napoleon, on the Continent, leaving the Church and all other religious bodies free to enforce their own discipline and their own law as to marriage. Let the same law apply to all religious denominations, whether it be the Church of England, Roman Catholics, Nonconformists, or what not, and allow each, separate community to enforce their own regulations as to marriage. By adopting some such course the State would do what it has a perfect right to do, and what is undoubtedly its duty to do, which is of primary importance to the well-being of the community. I venture to say that if something of the sort could be done we should all find ourselves in agreement, and we should put an end to these extremely unpleasant discussions, in which the real issues are never discussed, and in which, as in the present case, the question is being determined by reference to a side issue which is outside the general object of validating in England marriages legally contracted in the Colonies. I venture to submit that the best solution of the present difficulty is to make civil marriages compulsory upon everyone—as it is abroad—leaving the different Churches to enforce their own law according to their own principles.


My Lords, I desire to say a few words in explanation of the vote which I am about to give. I am about, for the first time within my memory, to vote contrary to the view of the noble and learned Lord on the Woolsack, and I am about to vote in favour of this Bill. I doubt very much whether the Bill is legally necessary—it has become necessary by reason of that which is really embodied in the Amendment which the noble and learned Lord desires the House to pass—namely, to refuse the passing of this Bill. I doubt very much whether it is a true proposition to say that without this Bill the children of these marriages will not or cannot succeed to real property in this country. It has never been so decided, and it may be—and I for my part should anticipate that it would be—decided that you cannot take away from them their rights as the lawful children of a lawful marriage. It cannot be questioned that after the marriages have taken place, subject to a law passed in the Colonies, which law has been acceded to by the Sovereign, those marriages are lawful. They are lawful in the Colony, and they are equally lawful in this country. Nobody could say anything in this country in any process of law that these parties were not legally married. Then comes the question of the children—the lawful children of a legal marriage. It is said that the law of inheritance in this country will be altered unless this Bill is rejected. What is the law of this country under such circumstances? It is this: that the children lawfully begotten of a lawful marriage, which is lawful in this country, are the people to inherit the real property of their parents. That is the law. It is the Amendment which will alter the law, and which will say: Although you are a lawful child, a lawful male child of your parents, who were lawfully married, yet, on the death of your father, although according to the law of England every lawful child is entitled to inherit, you are not entitled to inherit. Why? Because your mother was sister of the person who had been your father's wife before. That is what the noble and learned Lord's Amendment would come to; and that would be, as it seems to me, to alter the law of inheritance, because it would say, although your parents were lawfully married—although they remained lawfully married, not only in the Colonies, but here—you are not the heir-at-law. In my view he is the heir-at-law; and, if he is, what else remains to be argued? He must inherit, according to the law of England, the real property which is real property in England. The lawful son of a lawful marriage, who is a subject, is, under any circumstances, entitled to succeed. I do not say anything about anomalies. I do not vote one way or the other because it is said to be an anomaly. The law is full of anomalies; the question, to my mind, is: it is an unjust anomaly—it is contrary to every view that we take of the rights of the children, and for this reason I shall vote in favour of the Bill and against the Amendment and against that which is really embodied in the Amendment.


With the leave of your Lordships, I will venture in a very few words to state why I shall vote with the noble and learned Lord on the Woolsack. I will premise by saying, as he did, that I yield to no one in my desire to meet, as far as I possibly can, the reasonable wishes of the colonists, and in my sympathy with them, and in the hope to see them always closely united with the Mother country. I trust I may, without boastfulness, refer to five and a half years' service as Secretary of State, during which time I think I must have shown that sympathy with the colonists which I believe they themselves fully recognise. I shall not, of course, venture to discuss the question of law that has just been raised by the noble and learned Lord, but I will point out that, at all events, he is the only one that has ever advocated that view; and it certainly is not the view that is taken, and has been taken for 20 years, by the promoters of this Measure; and, as will be seen by the petition which has been referred to, the view of the supporters of this Bill is the view that has been taken by the noble and learned Lord on the Woolsack. The marriage is valid in this country, and the children are legitimate and can inherit, so far as regards personalty, but they are incapacitated from inheriting real property, because, though they are the children of a valid marriage, they are not the children of a marriage that can be validly contracted in this country. I wish to endeavour to keep clear of the legal aspect of the case, but, at all events, let it be observed that the legal proposition just put forward that these children could inherit real property is not accepted by the promoters of the Bill, whose sole object is to secure that these children should inherit real property. That is the short point at issue. There is no principle better established than this—that the succession to real property is governed by the lex loci—the law that applies where the property is—and it is that lex loci, that ancient and well established law of inheritance in this country, that we are now asked to change. I cannot conceive there being any question upon that point, because it is admitted by the people who promote this Bill that they are asking for a change of the law of inheritance. Well, my Lords, surely there must be some very strong—I had almost said, some overwhelming—reasons to induce us to make this serious change in our law. We have been told that a great interest is felt in the Colonies upon this question. Of course I do not for a moment deny that there is a great interest felt in the Colonies upon this question, but I venture to think that too much stress has been laid upon that interest, and the overwhelming character of it, for I observe that this Bill is spoken of as an "Imperial concern" in one of the papers that have been submitted to us. I think too much stress is laid upon that interest when you come to consider the history of this Measure. Very shortly I would like to remind your Lordships that in 1877 a Bill was brought in for this purpose. It passed a Second Reading in the House of Commons in the February of that year by a majority of 51, and it was then dropped. In 1878 another Bill was brought in amending the previous year's Bill by omitting certain clauses and words which had been objected to. That Bill received a Second Reading, but by a reduced majority of 21, also in the month of February, and then was dropped. That seems to show that there was no very strong pressure at that time on the part of the promoters, when it is considered that the Bill received a Second Reading so early in the Session as February, and was then dropped. I would also call your Lordships' attention to this: that the great argument used in the discussion upon the Bill in 1878 was the interest felt in the Colonies, and Mr. Baxter, who, I believe, had been Under Secretary for the Colonies, said that if the law was not altered the question would soon give rise to angry feelings, and would weaken the union between this country and the Colonies, and he went so far as to say that the rejection of this Measure was more likely to lead to the separation of the Colonies than anything else. Such, my Lords, is the value of prophecy. Twenty years have passed, and never at any time have the Colonies been more closely united to the Mother country, and more determined to remain part of the Empire, than now; and, moreover, during the 20 years that have elapsed since that prophecy was made not a single Bill, so far as I know, has been brought in in either House, nor even a petition presented. I am not disputing that there is a strong feeling and a strong interest felt in the Colonies on this question, but I do venture to say that it has been rather exaggerated, and that too much stress has been laid upon it on this occasion. I would also point out that in 1887, at the Colonial Conference, at which I had the honour to preside as Secretary of State, a discussion was initiated by Sir John Downer, the Premier of South Australia, upon this very point, and I should like to call vour Lordships' attention to what took place. In the first place, Sir John Downer was very anxious that a Bill should be introduced and passed in this country declaring these marriages valid in this country. That was the main object, because he, and those associated with him, were under the impression that there were doubts entertained as to the validity of these marriages in this country, and it was their chief desire to get any doubt upon, this point removed by legislation. And, in the second place, the Colonies, as a whole, were not agreed at that time upon pressing us for a change in the law of inheritance. The delegates of Canada, Newfoundland, the Cape, Western Australia, and New Zealand dissociated themselves from any desire to press for a change of the law relating to real property in this country. With your Lordships' permission, I will read two passages only, which will prove this. Sir A. Campbell, of Canada, said— We altered our law to suit our position in conformity with the desire of the people, and we are quite willing that the people of England should retain their laws until they see a necessity for changing them. And Sir Thomas Upington, then, I think, Attorney General for the Cape, desired that marriages lawfully entered into in the United Kingdom and in the Colonies should be looked upon as valid marriages in every portion of Her Majesty's dominions, but that nothing contained in this proposal should be taken to affect the existing law of the United Kingdom or of any Colony with reference to property situated within the United Kingdom or Colony. And, speaking generally, I may add that the view that— because the Colonies had been allowed to legislate on this subject of marriage it did not well become them to turn round and say you sanctioned the law, and therefore now you must alter your law to suit it, was held by the delegates of West Australia, New Zealand, and Newfoundland. That was the opinion of the delegates at the Conference of 1887 upon the question. Of course, after what Lord Strathcona and Mount Royal has said, I understand that, at all events, the Dominion of Canada has certainly changed her opinion, and is prepared to disown the opinion of the delegates of the Conference. I am not so certain that other Colonies must be taken to disown the opinion of the delegates by merely instructing their Agents General to support this Bill. Naturally, the Governments of these Colonies, if they felt that there was a strong feeling in favour of such a Measure, would be willing to instruct their Agents General to support the Bill, but I want to know whether the Colonial Governments have deliberately considered the question, and changed their minds, and are prepared to disown the opinion of their delegates, expressed at the Conference, and I should like to know whether there has been any discussion in the Colonial Parliaments. I have not been able to find that there has been any upon this question, but, of course, I have not the advantages possessed by the noble Lord for looking that up. It would, however, be interesting to know whether the opinions of the Colonial Parliaments have been shown to be in favour of this Bill. I desire, further, my Lords, to enforce a point that has been brought forward by the noble and learned Lord on the Woolsack, that we may fairly consider that there are not a great number of people who will be affected by this Measure, at any rate, for years to come. I will venture to point out now, as I did in 1878, that it must not be assumed that there will be a great number of marriages in the Colonies of this kind, nor must it be assumed that there will be children of these marriages, nor that the people who contract these marriages will break up their homes in the Colonies, and settle down in the Mother country, nor that they will all buy real property, and die intestate. There can be no pecuniary hardship in any of these cases, because the parent has simply to leave his real property by will. I will also add, that I do not feel the full force of the alleged hardship. These persons enter into the marriage with a full knowledge of all the circumstances. They know that the marriage is valid in the Colonies; they know that it is valid here, and that the children are legitimate, but that the full benefits that flow from the marriage in the Colony do not flow from it here, because of the incapacity of the children to inherit real property, owing to their not being the issue of a marriage that can be lawfully contracted here. The case of Scotland is a similar case. The marriage contracted there is valid here, but one of the consequences which, flow from the marriage there—namely, the legitimisation of children born before the marriage—does not flow in this country. I admit that it is not a very pleasant thing to resist what is, no doubt, a strong wish on the part of the Colonies, but it is a question for this House to consider, whether that wish is so overwhelming that we are prepared to meet it by changing our ancient law of inheritance.


I must say that I am a little surprised at some of the arguments of my noble Friend opposite, particularly at his appearing to think that it is not necessary to deal with this subject because no angry feeling has been manifested in the Colonies. Now, of all the arguments which I think are dangerous, the most dangerous is to say that there is any subject in which they are interested, and which we are not disposed to deal with, because it does not excite angry feelings. Above all things, I should imagine that my noble Friend himself and every Member of this House must sincerely desire that our relations with the Colonies shall, if possible, always be so conducted that nothing shall arise which shall create any angry feeling. My noble Friend ended by saying that there was a strong feeling in the Colonies at the present time, but he also sought to cast some doubt upon what was said by Lord James that the Governments of the different Colonies had expressed an opinion upon the subject. I understood—I have no knowledge myself—that all the Agents General of all the Colonies which had Legislatures had expressed to the Colonial Office the strongest desire, speaking on behalf of their Governments, that this Measure should be adopted. I do not think we want any further authority than that. I should be very sorry if it should ever be considered necessary to go behind what the Colonies themselves, through their Governments and through their agents, submitted to the Government and Parliament of this country, because I believe that to be the only safe way of dealing with the question. My noble Friend also used an argument which I cannot say I thought had any great weight. He said there would be no pecuniary loss, because, of course, the parents of these children might by will direct a certain disposition. My noble Friend forgot that in this country, under the circumstances, as the law now stands, they may be mulcted in 10 per cent. as illegitimate children, which I consider to be not altogether a small matter. I cannot possibly see what injury the people of this country can suffer by the alteration of the law. I am afraid that, not being a lawyer, I have not that extraordinary veneration for the law of inheritance which would lead me to consider that to touch this sacred ark of the covenant must in itself be a calamity. If this were a case of altering the general law of inheritance of this country that might be a very different affair; but that is not the case. The point before us is this, that we have deliberately granted to our Colonies the right of exercising and of contracting marriage with a deceased wife's sister, and the Bills enabling them to do so came over to this country, and they received the assent of the Crown. Now, my view is this, that no injury can happen to this country, because the only injury which could be supposed to accrue would be that injury which I know is felt by some considerable number of noble Lords—namely, that it affects the marriage law, and that to allow such marriages is contrary—I will not say to morality, but is likely to produce very evil consequences. But as regards this Bill, it will alter nothing. The marriages will take place all the same, and any injury which there may be by such marriages will remain, and all you do is this: that after recognising solemnly in a large portion of Her Majesty's dominions the right to contract these marriages, you are then—because it happens that these children, if their parents were married here, would be illegitimate—to refuse to grant them their rights and inheritance, as lawfully-begotten children, and you, in point of fact, inflict a fine upon them, for no possible reason that I can conceive excepting that it is a wrong thing to alter our law of inheritance. It is not really an alteration of our law of inheritance; it is simply bringing the actual facts of the case in accordance with what we have done in our Colonies, and it seems to me that the Colonies will have just reason to complain if we refuse them this very natural request on their part. But I wish to put it upon a broader ground. I have always been an advocate of a change of the marriage law in this country in this respect. But I do not advocate this Bill on those grounds. It is because I believe that to refuse to pass a Bill of this kind asked for by the Colonies in this way is inconsistent with the manner in which we are now governing our Colonial Empire. The very ground upon which we are enabled now to have such admirable relations with them is that we have always been ready to consult their wishes whenever it was possible, and whenever it did not injure the existence of this country. I cannot see anything in granting this request which can inflict any real injury upon any man, woman, or child in this country, or in any way affect the general law of this country, or can induce us to change our law because we have made this concession. The argument in favour of a change in the law of marriage in this country is derived from the fact that so many of our Colonies have adopted this change. The passing of this Bill is simply to prevent an injustice which will arise from the fact that the marriages can take place in our Colonies, and yet when our fellow-colonists come over here they cannot enjoy those rights and privileges which I consider on all grounds they are entitled to enjoy. I ask you, my Lords, to seriously consider this, whether even if you do feel some objection to making this concession as regards our law of inheritance, you ought not to be prevailed upon to make a change by the far higher considerations of the importance of maintaining the most friendly and closest relations with our Colonies, and in a matter of this kind, even where you have a doubt, I think you ought equally to take that away, which will show that you are ready to meet their wishes upon every legitimate and proper occasion. I therefore earnestly hope that the House will allow this Bill to pass into law.

Question put.

The House divided:—Contents 129; Not-Contents 46.

Wales, H.R.H. Prince of Annaly, L.
Barnard, L.
Devonshire, D. (L. President) Battersea, L.
Belper, L.
Boston, L.
Bedford, D. Boyle, L. (E. Cork and Orrery)
Fife, D.
Grafton, D. Brassey, L.
Portland, D. Brougham and Vaux, L.
Westminster, D.
Burghclere, L.
Burton, L.
Lansdowne, M. Calthorpe, L.
Ripon, M. Clanwilliam, L. (E. Clanwilliam)
Abingdon, E. Clonbrock, L.
Annesley, E. Coleridge, L.
Buckinghamshire, E. Colville of Culross, L. [Teller]
Carrington, E.
Cathcart, E. Crawshaw, L.
Chesterfield, E. Crofton. L.
Cowper, E. Davey, L.
Craven, E. De Saumarez, L.
Crewe, E. de Vesci, L. (V. de Vesci)
Dartrey, E. Farquhar, L.
Derby, E. Farrer, L.
Dundonald, E. Glenesk, L.
Durham, E. Greville, L.
Ellesmere, E. Hastings, L.
Fortescue, E. Hawkesbury, L.
Granville, E. Headley, L.
Harewood, E. Heneage, L.
Kimberley, E. Herschell, L.
Leven and Melville, E. Hobhouse, L.
Lonsdale, E. Hood of Avalon, L.
Malmesbury, E. Howth, L. (E. Howth)
Minto, E.
Morley, E. James, L.
Northbrook, E. Kelvin, L.
Portsmouth, E. Kenry, L. (E. Dunraven and Mount Earl) [Teller]
Romney, E.
Rosse, E. Kinnear, L.
Russell, E. Lawrence, L.
Saint Germans, E. Leigh, L.
Shaftesbury, E. Lingen, L.
Spencer, E. Ludlow, L.
Vane, E. (M. Londonderry) Macnaghten, L.
Mendip, L. (V. Clifden)
Verulam, E.
Wharncliffe, E. Methuen, L.
Esher, V. Monckton, L. (V. Galway)
Falkland, V. Monk Bretton, L.
Falmouth, V. Monkswell, L.
Portman, V. Monteagle of Brandon, L.
Wolseley, V. Morris, L.
Aberdare, L. Mount Stephen, L.
Alington, L. Muncaster, L.
Newlands, L. Southampton, L.
Norton, L. Stalbridge, L.
Plunket, L. Strathcona and Mount Royal, L.
Poltimore, L.
Reay, L. Sudley, L. (E. Arran)
Ribblesdale, L. Templemore, L.
Sackville, L. Tennyson, L.
St. Levan, L. Thring, L.
Tollemache, L.
Say and Sele, L. Tredegar, L.
Shand, L. Tweedmouth, L.
Sherborne, L. Wandsworth, L.
Sinclair, L. Welby, L.
Somerton, L. (E. Normanton) Windsor, L.
Wrottesley, L.
Canterbury, L. Abp. Gloucester, L. Bp.
Halsbury, E. (L. Chancellor) Oxford, L. Bp.
St. Albans, L. Bp.
York, L. Abp. St. Asaph, L. Bp.
Cross, V. (L. Privy Seal) Salisbury, L. Bp.
Addington, L.
Norfolk, D. (E. Marshal) Aldenham, L.
Balfour, L.
Richmond, D. Blythswood, L.
Rutland, D. Carysfort, L. (E. Carysfort)
Ailesbury, M. Clifford of Chudleigh, L.
Salisbury, M.
Clinton, L. [Teller]
Carnwath, E. Colchester, L.
Cranbrook, E. Dunning, L. (L. Rollo)
de Montalt, E.
Egerton, E. Fermanagh, L. (E. Erne)
Feversham, E.
Mar, E. Foley, L.
Stamford, E. Gage, L. (V. Gage)
Waldegrave, E. Hatherton, L.
Ker, L. (M. Lothian)
Halifax, V. Kinnaird, L.
Knutsford, V. Lovaine, L. (E. Percy) [Teller]
Llandaff, V.
Raglan, L.
Chester, L. Bp. Scarsdale, L.
Ely, L. Bp. Stanmore, L.

Bill read the second time accordingly, and committed to a Committee of the whole House.