Sitting of 28 February 1877

Preamble
PUBLIC BILLS—Resolution [February 27] reported — Ordered — First Reading — Supreme Court of Judicature [103].
Ordered — First Reading—Homicide Law Amendment [104]; Habitual Drunkards [105].
Second Reading —Town Councils and Local Boards [11]; Colonial Marriages [29]; Open Spaces (Metropolis) [62].
Committee—Threshing Machines [20], debate adjourned.
Third Reading—Publicans Certificates (Scotland) [87], and passed.

TOWN COUNCILS AND LOCAL BOARDS BILL— [BILL 11.]
(Mr. Mundella, Mr. Chamberlain, Mr. Burt, Mr. Morley).
TOWN COUNCILS AND LOCAL BOARDS BILL— [BILL 11.]

  SECOND READING.
  Order for Second Reading read.
  MR. MUNDELLA,in moving that the Bill be now read a second time, said, the object of the measure was to abolish the property qualification for members of Town Councils and Local Boards, and to substitute for it the more ancient qualification, by which any person who had been duly enrolled as a burgess of a borough, and who had resided in such borough during the 12 months immediately preceding the day of election should be duly qualified for office on these Councils or Boards. In submitting this Bill he was not proposing any innovation, but was simply going back to the old lines of the Constitution. All our writers praised our local institutions as the means by which we had maintained the principles of self-government, and had kept alive the spirit of political freedom. It was through such institutions that we had acquired the habit of submitting to the will of a majority, and had secured the large measure of freedom we now enjoyed. Sir Erskine May, in his Constitutional History, speaking of our local government, said the history of municipal corporations afforded an example of encroachments on popular rights; that the government of towns under the Saxons was no less popular than their other local institutions; and that the constitution of corporations, at a later period, was founded upon the same principles—namely, that all the settled inhabitants and traders of corporate towns, who contributed to the local taxes, had a voice in the management of their own municipal affairs. For some centuries after the Conquest the burgesses assembled in person for the transaction of business—they elected a mayor or other chief magistrate; but no Governing Body, or Town Council, to whom their authority was delegated. The burgesses only were known to the law; but as towns and trade
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  increased, the more convenient practice of representation was introduced for municipal as well as for Parliamentary government. The most wealthy and influential inhabitants being chosen, gradually encroached upon the privileges of their inferior townsmen, assumed all municipal authority, and substituted self-election for the suffrages of burgesses and freemen. Corruption went on until the reform of all our Corporations in 1835. Property qualification was first proposed in the reign of William and Mary. In that reign—namely, in 1696, a Bill was brought in which proposed that an annual income of £600 from land should be the qualification required for a Member for a county, and that an annual income of £300, also in land, should be the qualification of a Member for a borough. That measure originated in the jealousy felt by the landed classes towards the rising commercial influence in the country; but William of Orange, who leant rather toward the commercial interest, refused his assent. In the following year a similar Bill was passed by the Commons, but rejected by the Lords; and it was not until the reign of Anne that the qualification was finally adopted. Sir Erskine May, referring to the operation of the Act establishing a property qualification for Members of that House said, that in its original form, the Act was invidious and unjust, and that from beginning to end it had been systematically evaded. Indeed, it was well that it was so, for some of the brightest ornaments of that House had come there without any property qualification. Somers and Sheridan did not possess the necessary qualification—and even William Pitt could not make the declaration that over and above his debts he possessed £600 a-year in land. Many Cassandra like prophets had predicted that the abolition of that qualification would be ruinous to the best interests of the country; yet, undeterred by those gloomy vaticinations, Parliament had wisely abolished it, without any evil results—and it was a Conservative Government that abolished it ! The same thing would happen in regard to the present property qualifications for municipal and local offices, which lie desired to see equally swept away. There were none of those qualifications before the Municipal Corporations Act of the 5th and 6th of William IV., and that

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  Act passed the House of Commons without any of the qualifications: they were inserted by the House of Lords at the instance of those who sought to modify the democratic constitution of Town Councils, and the House of Commons, against its will, yielded at the last moment to that alteration in the measure as a sort of compromise. Things had greatly changed since then. Not only had the property qualification for Members of that House been done away with, but the number and also the functions of our local institutions had been largely increased. In 1870, a new provincial body, School Boards, were established by the right hon. Member for Bradford (Mr. W. E. Forster) and the only qualification required — irrespective of sex—was that the person elected should be of full age: yet no public Body in this country had on the whole more ably, or with more dignity, conducted their business than had the School Boards. Under the Education Act of last Session, where no School Boards existed, their functions were confided to other local Bodies. The Artizans Dwellings Act had likewise lately been passed—a measure in the application of which the working classes were specially interested, as also in sanitary improvement generally. Purchase in the Army had been abolished—in fact, all qualifications, except those to which this Bill related, and which hindered working men from rendering good service to their country, had been taken away. To exclude men, therefore, from any share of local self-government, simply because they did not happen to be large ratepayers or to have a certain amount of property was not only injurious to the good working of local institutions, but contrary to the spirit of the Constitution. In what then did the exclusion consist? It existed through the operation of the rule providing that a member of a Town Council in a borough in which there were more than four wards must either be rated at £30 a-year, or be able to declare that he was worth £1,000 in money or money's worth. If the borough had four or fewer than four wards, he must be rated at £15 or declare that he was worth £500. Analogous restrictions existed in regard to Local Boards, according to the amount of population in the particular place or district. The effect of that system was to disqualify in the large boroughs more than
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  80 per cent of the burgesses, and in some cases even from 85 to 90 per cent. In his own borough—Sheffield—something like 80 to 90 per cent of the electors were thus disqualified from offering themselves to the town council. In Sheffield, however, they had one working man in the Town Council and two in the School Board, all discharging their duties to the eminent satisfaction of the community. In one town a man who was returned to the School Board by a large majority was afterwards elected to the Town Council; but, it being found that he was disqualified for the latter body, some friend put a thousand pounds' worth of notes in his pocket — thus giving him what, after all, was only a colourable qualification, but being then in possession of £1,000, he could sit. And this he was afraid was being done all over the country. Men whose standard of morality was lower than the conventional one, and who were inclined to laxity as to oaths or declarations, were not excluded by those restrictions. Again the penalty of £50 to which a man was liable every time he acted as a Town Councillor, unless he had the requisite property qualification was very harassing, and calculated to make a scrupulous man retire. But, further, many absurd anomalies and much injustice arose from the working of the present rule. For example, when a borough of four wards received any addition to their number, the amount of the property qualification required was immediately doubled; so that men who had served the borough before on a rating of £15 a-year could no longer serve—and these, perhaps, were the very men whose energy had contributed to the prosperity and enlargement of the borough. He could cite many illustrations of the effect of this, but he would content himself with one. At Hythe there were four wards; but an extra ward having been added by taking in Sand-gate, a gentleman who had served the public well with a qualification of £15 rating and £500 in money, had to retire because the qualification was thus arbitrarily raised. It had been said that if this Bill passed they would lower the character of the administrative body; but surely this was a matter in which the electors were bound to take care of themselves. Nor was there any weight in the argument that the small rate-

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  payer would be careless of expenditure, because they had no interest in checking it; on the contrary, he (Mr. Mundella) said that they were the very class who most felt the pressure of rates; and if there was a tendency to extravagance in local bodies, it came generally from the rich, who did not feel the pressure, and who often had large ideas and favoured grand schemes. His own fear rather was that the small ratepayers might be too parsimonious; although he held that it was most desirable they should receive the education derivable from taking their part in the conduct of local affairs. But the most conclusive answer to the objection that his proposal would tend to excessive expenditure was furnished by the fact that in Scotland there was no property qualification, and nothing to prevent a man, however poor, if his name was on the burgess list, from being elected Lord Provost of Edinburgh or of Glasgow. In conclusion, he appealed to the House to fall back upon the ancient lines of the Constitution, to remove an invidious distinction, to leave the electors themselves to judge who would serve them best, and to give every man, whatever might be his position, the opportunity, if lie had the noble ambition, to render good service to his country.
  Motion made, and Question proposed, "That the Bill be now read a second time."—(Mr. Mundella.)
  MR. SCLATER-BOOTHsaid, that no one in that House would desire to rely on a property qualification as being essential to the due conduct of the public business to which a man's fellow-citizens might appoint him. Still less would the present Government, some of the Members of which were responsible for the abolition of the property qualification of Members of Parliament, wish to stop a measure which had for its object the repeal of what might seem an antiquated or unnecessary restriction attached to the discharge of public duties. At the same time, he did not think the property qualification for Members of that House was exactly on all fours with that for members of Town Councils and Local Boards. The political element entered only in a minor degree into the business of those local Bodies, whose duty it was more exclusively to deal with the expenditure of money levied from
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  the ratepayers of their localities. When those qualifications were established, it was doubtless thought necessary that the owners of property in a district should have some security that the expenditure of the rates which they paid should be directed by persons having some substantial interest in that expenditure. A more potent argument might have been that the small ratepayers, especially those in districts where their rates were paid for them by their landlords, would not feel the effect of extravagance in their disbursement, and might so be under the control of their landlords. But the main point which he now desired to put before the House was, that this Bill had been brought forward with very little Notice, and it remained to be seen what view was taken of it throughout the country. Very few complaints had ever been made about the present system —certainly the attention of the Government had not been called to the matter by complaints as to the exclusion of proper persons from those local Bodies from the want of a property qualification. The hon. Gentleman had referred to certain anomalies now existing, but he had also indicated that means were now found for providing a qualification for a person supposed by his neighbours to be fit to discharge those public duties. Another reason why he had a difficulty in giving his assent to the measure was that it did not deal with the Improvement Commissioners' districts—about 40 or 50 in number, and some of them very important districts of England. Even, however, if the Bill were read the second time that day without comment, it would be necessary that time should be given before it was taken in Committee, in order that it might be generally known throughout the country, and that its various points should be examined by those whose interests were at stake. If the hon. Member for Sheffield would adopt that course and fix a day after Easter for the Committee, the Government would not object to the principle of the measure. Further than that he would not commit himself.
  MR. STANSFELDsaid, the hon. Member for Sheffield could not have expected a more favourable reception, and would advise him to accept the fair offer made to him on the part of the Government. The right hon. Gentleman who had just sat down (Mr. Sclater-Booth)

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  seemed to have some misgivings on the subject, and intimated a doubt whether it might not be desirable to retain a property qualification for Town Councils and Local Boards, because the members of those Bodies dealt more directly and exclusively with property than did the Members of that House. But the argument really told the other way; because if this Bill passed, and if working men became members of Town Councils or Local Boards, and advocated increased expenditure, this expenditure must be met out of increased rates, and these would be felt by the working men in the shape of increased rents; so that the ultimate incidence would be both upon the poor and the rich; whereas the Members of that House, if they chose to be so unwise, could impose taxation on one class which would not affect another, and could, in fact, shift the burden from one class to another. The local Bodies could not separate classes so as to throw the burden on one. Moreover, that House would soon have to address itself to the great question of a re-organization of our system of local self-government and its relations to the Imperial Government; and then it would be found impossible to maintain qualifications for Town Councillers which were not required for Members of Parliament. They would have to enlarge both the area and the functions of local government, as well as to widen the basis of local representation. Believing that the present Bill was simply an instalment of that coming larger reform, he gave it his hearty concurrence.
  SIR GEORGE CAMPBELLsaid, that in this matter he thought that the Government might take a good example from Scotland. There they had no property qualification, and yet there were no complaints of the working of the system. In his own burgh, not only was the law such that any voter might represent the constituency in the Municipal Council, but it was the invariable practice to have one or two working men as members of the council. That system acted extremely well—so well that he believed it would be considered in Scotland that no other system could work, and that it would be impossible to carry on the local self-government of a burgh without some members of the most numerous class being on the Council. He could also testify to this—that, so far from
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  there being a tendency to extravagance on the part of these representatives, the contrary was the case, and they inclined to a wise economy. Therefore if the right hon. Gentleman had any lingering doubts as to the propriety of this system he hoped he would pay an early visit to Scotland, where he was sure those doubts would soon be removed.
  Question put, and agreed to.
  Bill read a second time, and committed for Tuesday 10th April.

COLONIAL MARRIAGES BILL— [BILL 29.]
(Mr. Knatchbull-Hugessen, Mr. Russell Gurney Sir Thomas Chambers.)
COLONIAL MARRIAGES BILL— [BILL 29.]

  SECOND READING.
  Order for Second Reading read.
  MR. KNATCHBULL - HUGESSENsaid, that as he was not fond of making speeches merely for the sake of hearing his own voice, he would be very brief in moving the second reading of this Bill. Its object could be easily stated, so as to reach the comprehension of all who heard him. He weuld say at the outset that he should entirely decline to open up the long-vexed question of the marriage with a deceased wife's sister in England. At the same time his opinions upon that subject had undergone no change whatever. He thought it most sad that this free country of ours should be the only Protestant country in the world in which a civil disability was imposed upon the issue of marriages which the vast majority of Christians held to be lawful. He thought it most unfortunate for the Church of England that, upon one of the many occasions on which the House of Commons had sent up to the other House of Parliament a measure of relief from this disability, that measure should have been defeated upon its second reading by the votes of the Bishops, 14 of whom voted against it, when the majority by which it was rejected was only 4. But he cast aside all such considerations at the present moment, because it was as a colonial question that he introduced the Bill before the House, and it was a colonial grievance which it was designed to remove. In all the Australian Colonies the Legislative Bodies had passed laws legalizing marriage with a deceased wife's sister. Now, in Colonies possessing· representa-

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  tive institutions, legislation was twofold. There was legislation which was accomplished by the Colonial Legislatures and the Governors, without reference home, and there was legislation which was reserved for the special sanction of the Crown. The Marriage Bills referred to fell within the latter category, and four of such Bills had not only been passed by the local Legislatures, but had been sent home and had received the deliberate sanction of the Queen, acting under the advice of different Ministers, belonging to each of our great political Parties. Two such Bills were awaiting similar sanction. It therefore followed that a British subject in these Colonies marrying his deceased wife's sister contracted a perfectly legal marriage, and all that was asked by the Bill was, that if his children came to reside in England, they should be subject to no disability. He (Mr. Knatchbull-Hugessen) would beg the House to mark this point especially. If a British subject, resident within these islands, married his deceased wife's sister, his children were subject to a disability, because ho had contracted a marriage which was prohibited by law. But if a British subject, resident in the Colonies, did the same thing, he was contracting a marriage in every respect legal, and, therefore, his children ought not to be subject to disability. He would not—even if he were capable of doing so—inflict a long legal argument upon the House, nor was it necessary to do so. The celebrated case of Brook v. Brook decided that a marriage by British subjects in a foreign country contracted in accordance with the laws of that country was a void marriage in England, unless it would have been a legal marriage if contracted in England. But let the House mark the difference. Such a marriage would be one contracted under a foreign law by British subjects. But the case with which he asked the House to deal was the case of a marriage contracted under the colonial law by British subjects, that law having been expressly sanctioned by the Queen. He asked, in fact, that the Colonists should be considered as subjects of the Queen, and not as if they were subjects of a foreign Power and their land a foreign land. He begged the House not to deal with the Colonists as foreigners; for if they did so, and put them in this instance upon the footing
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  of foreign Nations, they would create a precedent which might be quoted against us hereafter in an inconvenient manner. As far as he could learn there were four objections made to his Bill—two of which he held to be quite untenable—the third might possibly be tenable, but would be removed by a concession he was prepared to make, and only the fourth appeared to him capable of being argued. The first objection was made by those who said that the law was not doubtful. He (Mr. Knatchbull-Hugessen) would not pretend to state accurately the precise condition of the law. Ho thought that the balance of argument was in favour of the view that the issue of these marriages in Australia, their legality having been sanctioned by the Crown, would be legitimate in England, up to a certain point; but that they could not inherit land. But there had been conflicting legal decisions upon these points, or points akin to them; and under such circumstances, he could not see how anyone could contend that the law was not doubtful; and if doubtful, then let them clear it up in the only way consistent with right and fair treatment of the Colonies. The second objection was that this Bill would be made a stepping-stone to the passing of the Bill to legalize these marriages in England. He could only say that he had introduced the measure with no such view, and he would ask the House not to reject a measure good and right in itself, because hereafter something might be asked which some of them might not think equally good and right. They had often heard of doing evil that good might follow; but he hoped they were not prepared to act upon the converse, and refuse to do good on account of some distant possibility of evil which might ensue. The third objection was that, under this Bill, persons might go out from England and evade the law by contracting these marriages in Australia, and immediately returning home. He believed that the word "domiciled" would effectually guard against any such contingency; but if it could be shown to be necessary, he would be ready to accept an Amendment to the effect that a person should be resident for a specified time—say, one or two years—before being capable of contracting such marriage. The last objection was one which, he believed, had been mentioned by his

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  noble Friend the Secretary of State for the Colonies, when a deputation waited upon him in connection with this subject. It was to the effect that British subjects resident in the Colonies ought not to be better off than British subjects at home. He could hardly understand that objection coming from anyone opposed to these marriages, because if a person who could legally marry his deceased wife's sister was "better off" than one who could not, the plain remedy was to enable the latter to have the same privilege. But the truth was, that they were not going by the Bill to make the Colonist better off—in that sense he was better off already—and all they would do by the Bill was to prevent his being worse off, by having to endure the infliction of a disability upon his children, when neither he nor they had done anything illegal. Why, he would ask, should the brand of illegitimacy be stamped, in the country of his ancestors, upon a man who was the issue of a perfectly legal marriage? What would be thought in the Colonies when they found that the House of Commons were determined that their legislation, sanctioned by the Crown, should continue to be entirely inoperative so far as this country was concerned? Would they not naturally look upon perseverance in such a course as striking a blow at that cordiality of union between them and the mother country which it was so desirable to maintain, especially when the colonial legislation of which he spoke had been carried by large majorities in the several Legislatures, and that even those Colonists who had opposed that legislation were anxious, now that it had been accomplished, that these disabilities should be removed. It was thought by some to be a small question; but to his mind a question which affected the legitimacy and rights of inheritance of British subjects was one of too serious a nature to be lightly treated. He (Mr. Knatchbull-Hugessen) saw with regret that his hon. Friend opposite (Mr. Beresford Hope) had given Notice of opposition to the second reading of the Bill. He would only make one remark upon that opposition. His hon. Friend had always opposed the legalizing of these marriages in England. Formerly, he did so upon Biblical grounds; but, driven from Leviticus, he had fallen back
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  upon moral grounds, and his opposition of later years had mainly been based upon social considerations. Now, that point could not arise under the present Bill. Social questions could only be dealt with in the society in which they existed, and the social part of the matter could only affect the Colonies where these marriages would take place. He earnestly begged the House, therefore, to let the Colonies settle their own social questions; and, as they had settled this particular question by legalizing marriage with a deceased wife's sister, he asked the British House of Commons to do them a simple act of justice by passing the Bill, of which he now moved the second reading.
  Motion made, and Question proposed, "That the Bill be now read a second time."—(Mr. Knatchbull-Huqessen.)
  MR. BERESFORD HOPE,in moving that the Bill be read a second time that day six months, said: Let me first, Sir, thank my right hon. Friend opposite (Mr. Knatchbull-Hugessen) for having, as far as his unfortunate position enables him, kept clear of the broader question of marriage with a sister-in-law. Of course it was impossible not to touch upon it here and there. Indeed, when we see his name, and the name of the right hon. the Recorder, and of the hon. and learned Member for Marylebene, on the back of the Bill, one cannot help seeing that there is a very close connection, not of affinity, but of absolute consanguinity, between the two questions. But, in following his example, I must state that although the speech of my right hon. Friend was ingenious and conciliatory, it was also singularly inconsistent. In fact, I may say that every successive statement which he made might be used as an answer to the statement which preceded it. Let me take the last of his statements. He calls upon us to look at this question with colonial eyes; and it is upon its colonial aspect that I base my opposition. Then he calls upon us to make our choice: shall we keep the Colonies loyal, friendly, and affectionate towards us by treating them as British subjects living abroad; or shall we deal with them as foreign nations? Now, it is upon these very considerations that I found my resistance to the proposed Amendments

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  to his Bill, which my right hon. Friend incidently threw out. As to the first, it is conceded that, whatever may be the state of the law for the purposes of those Colonies, gentlemen who have allied themselves with their wives' sisters in the Colonies, will enjoy the protection of such laws as those Colonies may have passed; that, in point of fact, clearing the question of all verbiage and ambiguity, the only grievance, if grievance there be at all, is that the offspring of those alliances will not inherit property under intestacy, or settlement, nor succeed to titles in England, and will have to pay maximum legacy and succession duty. That is the grievance on the side of the Colonies—really and absolutely their only grievance. The grievance on our side is, I conceive, a much broader — a more real one: shall or shall not all or any of the Colonies have the right to force the hand of the mother country? Shall we or shall we not put the marriage laws, with all those great and delicate questions which run into moral, into social, and into legal considerations; shall we put all those questions into the power of all or any of the Colonies which happen to enjoy a responsible Government to regulate for us? Is the law to be made for England by Tasmania, or by England for England, and by Tasmania for Tasmania? All the rubbish cleared away; that is simply and absolutely the question which is before us. [Mr. KNATCHBULL-HUGESSEN: Oh, oh!] My right hon. Friend says "Oh;" He can easily meet that difficulty. He can throw in a year or two of grace, of residence in the Colony, before a gentleman shall be able to marry his wife's sister. But does anyone in this House believe that an Amendment of that sort would go down in the Colonies; that they would not at once deal with it as a grievance; and that some statute would not be soon passed by the Colonial Legislature, which would create a much more difficult complication of law than that which at present exists? Then, I answer his argument with his own argument, which was—Are those colonists to be British subjects living abroad, or subjects of a foreign nation? What would more completely declare them to be foreigners, than to introduce an Amendment which declared that an Englishman, a native of England, could only ripen into an
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  Englishman of Tasmania after an acclimatization of 12 months or two years in that island? That is what the suggestion of the right hon. Gentleman comes to, and I appeal with confidence to the House to say whether such a proposal would for one instant hold water. Looking at the question, as we must, from the English point of view, and as a practical question, it all falls flat upon taking a plain, broad, intelligible, common-sense view of the matter. This is put plainly by Mr. Herbert, speaking in the name of the Colonial Minister, in the Correspondence between the hon. and learned Member for Marylebone (Sir Thomas Chambers) and the Colonial Office on this subject. It is No. 145 of the Papers of 1876, and as it is a Parliamentary document, and runs in the name of the Colonial Minister, I will read a very short passage from it to the House. First, however, I would deviate from the strict line of my argument to thank the hon. and learned Common Serjeant, the Member for Marylebone, for the ingenuous candour with which he has put us in possession of the best and strongest argument against his own Bill that could perhaps be produced. If I, or anyone who was opposed to him, had moved for the production of that Return, it might have been thrown in our teeth that we were perpetrating a bad joke upon the hon. and learned Member; but for this Return we are indebted to the hon. and learned Common Serjeant. It is what he appeals to and looks to as his brief. It is what he brings before us as a reason why he should accept his Bill. Now, what is the statement which is signed by the Under Secretary for the Colonies, and which we owe to the kindness of the hon. and learned Common Serjeant? It says—
  "It does not appear to Lord Carnarvon that there is any doubt with respect to the law on the subject, though it may be expected that questions of domicile will from time to time arise in connection with marriages of this nature celebrated in Colonies where they are legal. On the other hand, it appears to his Lordship that the proposed Act would have the effect of giving validity in the United Kingdom to marriages of this description entered into by residents of the United Kingdom, who have simply made a trip to the Colony for the purpose of procuring celebration of the marriage, thereby evading the law of this country."
  I hope that every word of that statement will be endorsed by the deci-

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  sion of the House to-day. Then he says—
  "I am, therefore, to state that such a consideration would, in his Lordship's opinion, effectually prevent the Secretary of State for the Colonies giving any sanction and support to such a measure as you propose."
  Well, I ask my right hon. Friend whether he is prepared to see stuck up at the office in Ludgate Circus—"Messrs. Cooke & Sons' Marriage Journeys to Australia; 10 per cent reduction. Messrs. Cooke & Sons provide fathers, and make all the necessary arrangements?" Is that what he wishes us to come to? Let me just take the case of a couple that have committed an alliance of this sort. The couple have taken a trip to Australia under the patronage of my right hon. Friend and the Common Serjeant. They have gone to the Antipodes, and the return trip may stand for the honeymoon. They go into society and say that they are as good as anybody else, and, perhaps, rather better. They have been married according to law in the Colony, and under the protection of my right hon. Friend's Bill. Well, they attempt to go into society, and what is their position there? No doubt, in some quarters they would be received with all the honours of martyrs; elsewhere, they would be regarded as persons who, for the purpose of contracting a marriage which is not legal in this country, had evaded the law of the mother country by undertaking the expense and trouble of a long voyage; whilst other persons, desirous of contracting the identical marriage, were unable to do so, because their business, or their want of the means, obliged them to remain in the United Kingdom. Is that, I ask, a pleasant position for a high-minded man or a pure-minded woman to stand in? But that is what your proposed measure would lead to. I will take another case, and suppose two brothers, who are successively in remainder to some property or some title. Each of these brothers has become a childless widower, and each feels that the vacant chair at his desolate hearth might be best filled by his sister-in-law. The elder brother is poor and unable to afford the expense of a voyage to the Colonies. He goes through the marriage ceremony, say, in England or in Denmark, with his sister-in-law. The younger brother, more adventurous or
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  more wealthy, makes his voyage to Australia, and after the due interval of time brings back his blushing sister-in-law decorated with his surname prom the southern hemisphere. Now the question of property comes in. A son is bern to each. The son of the elder brother and of the elder brother's sister-in-law is illegitimate, because his parents clung to Europe. The son of the younger brother and the younger brother's sister-in-law inherits the estate, or the title, because his parents took that pleasant voyage to Australia. Is that a state of things which anybody would like to see existing in England? Yet, that is another result to which this proposal of your's would lead you. I desire to deal fairly with the question on all sides. The grievance of the clients of the right hon. Gentleman and the hon. and learned Common Serjeant is one which only affects a very limited number of persons. All men do not become widowers. It is not every one who is left a widower that desires to call his sister-in-law his second wife. It is not everyone who is possessed with such a desire and who also possesses an eligible and possible sister-in-law. The number of persons so situated is limited; while they know that they can gratify their wishes and contract this marriage in the Australian Colonies, subject to the offspring of such a union not inheriting property in England, unless it be bequeathed to them by will, and subject to a contribution of 10 per cent to the public revenues of the country, but that they can inherit any property in Australia. On the most favourable footing, this is all the grievance which is put forward in support of a measure which would enable the small body of persons to whom I have referred to circumvent that which I hope and trust, and believe, will long continue, aye and ever continue, to be the law and custom of England; which would enable the man who desires to break that law to make that person his wife whom the law and custom of England declare shall not be his wife. By this Bill you enable a man, at the small expense of a journey to Australia and back, if he can afford it, and possibly of a residence of 12 months or two years in one of the colonies, to marry and bring back that person as his wife. What is this but to confound

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  all ideas of right and wrong; to defeat the laws of succession and inheritance, and to commit an outrage on the social feelings of the country, just because the man has a longer purse and some more leisure than the small residuum of persons remaining in England who might wish to do the same thing, but are wanting in the material means of giving effect to their desires? This, Sir, is the light in which I feel compelled to regard this Bill. You may argue as you like. You may tell me that the Crown has given its assent to these Australian Bills; but the Crown has, with its eyes open, only done it for Australia alone, and upon Australian considerations, not for England. To say, therefore, that because the Crown has done it for Australia, it is bound to do it for everywhere else, seems to me to lead you to a conclusion which has no preexisting premises. On these grounds, Sir, I beg to move the rejection of the measure.
  Amendment proposed, to leave out the word "now," and at the end of the Question to add the words "upon this day six months."—(Mr. Beresford Hope.)
  MR. YOUNGsaid, that, having in his younger years resided in the Australian Colonies, he was in a position to state that they took a deep interest in this question. Probably very few marriages of this kind would be contracted in the Colonies; but, at the same time, these marriages had been made legal by a law which had received the sanction of the English Crown; and to refuse to give full effect to them would not only be an insult to the Colonies, but would lead the people who had contracted them to think that they had been entrapped into doing so. Whatever any hon. Member might think of these marriages, they must admit uncertainty in marriage was a most serious evil, and he hoped that the House would by passing this Bill prevent an evil of this kind arising in the Colonies.
  MR. FORSYTHsaid, that reason and justice alike compelled him to support the second reading of the Bill. If the question before the House was to legalize marriage in this country with a deceased wife's sister, he should vote against the proposal, though simply on the ground of social expediency, because,
  1174
  in his opinion, every other objection to it failed. He did not think such a measure opposed to either religion or morality, but he thought that the weight of opinion in this country was against it. He should, however, support this measure, because it would remedy a great wrong. Why should English Colonists in this Kingdom be in a worse position than they were in their own country? Was it not the interest of England to knit together in every way the bends that united the Colonies to her? Was it not contrary to sound policy to tell the Colonist who brought over here his lawful wife and children, that those children were, as regarded the right of inheritance in England, illegitimate? There were several anomalies already in the marriage law of England and Scotland. The Common Law of Scotland was founded on the Civil Law of Rome. In Scotland a subsequent marriage legitimized children previously born; but the English law regarded as illegitimate children who were born before wedlock in Scotland, and legitimized in that country by the subsequent marriage of their parents. In a well-known case in which this point was raised, Lord Brougham said—
  "In truth, legitimate son means lawful son; and the rule of inheritance is that the eldest lawful son should succeed to the father, but ' lawful' or not depends upon the law which is to govern; and no other definition can be given of what is lawful than this—that he is the lawful son whom the law declares to be such. What law? There are two, it is said, in this case—the law of the place of the party's birth and of his parents' marriage, and the law of the place where the land lies. Then which of these two laws shall prevail? The whole inclination of every one's mind must be towards that law which prevails where each person is born and where his parents were married, supposing the countries to be one and the same; and, if they differ, I should then say certainly the law of the birthplace. Nor can anything be more inconvenient or more inconsistent with principle than the inevitable consequence of taking the lex lox rei sitœ for the rule; because this makes a man legitimate or illegitimate according to the place where his property lies or rights come in question—legitimate when he sues for distribution of personal estate, a bastard when he sues for succession to real; nay, legitimate in one country where part of his land may lie, and a bastard in some other where he has the residue."
  Lord Brougham went on to say—
  "One should say that nothing can be more pregnant with inconvenience; nay, that nothing can lead to consequences more strange in statement than a doctrine which sets out with

  1175
  assuming legitimacy to be not a personal status, but a relation to the several countries in which rights are claimed, and, indeed, to the nature of different rights. That a man may be bastard in one country and legitimate in another seems of itself a strong position to affirm, but more staggering when it is followed up by this other —that in one and the same country he is to be regarded as bastard when he comes into one Court to claim an estate in land, and legitimate when he resorts to another to obtain personal succession; nay, that the same Court of Equity (when the real estate happens to be impressed with a trust) must view him as both bastard and legitimate in respect of a succession to the same intestate."
  Another anomaly occurred in the case of a man who, having been married in England, was divorced in Scotland, and on his subsequently re-marrying in England was actually indicted for bigamy and convicted. Thus there was a most painful conflict of laws between the two countries, and it would be much better to assimilate the laws than to keep up such offensive contrasts. If this Bill were passed it would not enable a man, as had been alleged, to evade the marriage law of England by taking a tourist's ticket to one of the Colonies, because the Bill applied only to persons who were domiciled there, and who had gone there animo manendi. If a man married his wife's sister in Australia, the son of that marriage could not inherit his grandfather's property in this country. With regard to the case of the two brothers put by his hon. Friend the Member for Cambridge University (Mr. Beresford Hope) the one who married his wife's sister in England, did so with his eyes open: he knew that in law it was no marriage, and that his children would be bastards. The House would be putting a great affront upon the Colonies if it refused them the relief which this Bill would afford. It was a hard thing for a respectable Colonists who came to this country with his wife and children to find that his wife could transmit no right of inheritance in England and that his children were here to be treated as bastards.
  EARL PERCYsaid, they had been told, in answer to the argument that, if this Bill passed, persons might take a trip to the Colonies in order to get married, that the marriages to be legalized by this Bill were those only of persons who were domiciled in a Colony. This opened a fresh field of litigation, for the Courts of Law would be perpetually
  1176
  called upon to decide whether the parties who had contracted these marriages had one out to the Colony with an animus manendi, or merely for the purpose of contracting these marriages. The law of Scotland as regarded children born before marriage had existed for centuries, and it had not led practically to any serious inconvenience. If, however, that question were raised the arguments for assimilating the law of Scotland to that of England would be at least as weighty as those on the other side. The Colonies had passed Acts legalizing these marriages, and these Acts had received the assent of Her Majesty: and because that had been done they were now asked to change their own law in order to put themselves right with the Colonies. He wanted to know how far that argument was to be carried? Were they prepared to accept the views of the colonists on all matters in which the Colonial Legislatures came into contact with the Imperial Legislature? If that were to be the rule, he could hardly understand how we could be said to be independent of the Colonies at all—it would be for the Colonies to dictate the laws which they were to pass. These marriages were objected to on moral, social, and religious grounds, and they were asked to change their conduct on a moral, social, and religious question in order to suit the Colonies. If this Bill were passed, a rich man would be enabled to contract a marriage legally with his deceased wife's sister, whereas a poor man could not do so. Legislation of this kind would be introducing the thin end of the wedge. If marriage with a deceased wife's sister were right and lawful let them pass a measure making it legal; but if not let them resist by every means in their power any modification of the law by any indirect method of dealing with the question.
  MR. ROEBUCKsaid, that many years ago it was his fate to make a speech in that House which had frequently since been re-called to his memory by those who had taken part in these discussions—for it was a speech opposing any change in the law of England in respect of marriage with a deceased wife's sister. He did so upon grounds which he then stated, and which had nothing whatever to do with the Mosaic Law. But the question now

  1177
  before the House was a totally distinct one, and must be tested by different principles. Many of the Colonies of England possessing the right of self-government had determined that by their law that should be legal which was illegal here. He was told that we should not treat these people otherwise than as Englishmen, and that the law made for us in England ought to be the law in the Colonies. That, however, was not the rule either of law or morality. He would take a very extraordinary instance. We had large Indian possessions. By the law of Hindustan, a Hindoo might marry his sister. A potentate in India, subject to our rule, married his sister. The union resulted in the birth of a son and heir, who was acknowledged by the people of England as represented by their Government, and who was allowed to reign over millions of people. This was a great anomaly, which he put against the anomalies that had been pointed out by several speakers in the course of this debate. He had often been told that there had been repeated legal decisions that the rule of foreign countries respecting marriage should not be the rule here. That was not the opinion of Lord Stowell. Lord Stowell laid it down in a celebrated case that the law of the country in which the marriage was contracted should prevail. There was the case of Lord Pembroke. Lord Pembroke had married a Sicilian Princess, and Lord Stowell held the marriage to be valid in England on the ground that it was valid in Sicily. Contrary decisions had, however, been given, and Sir Cresswell Cresswell had distinctly laid it down that the law was opposite to that which he had just indicated. A settlement of the law was therefore desired, and why should it not be such a settlement as the Colonists asked for? In the fervid imagination of hon. Gentlemen opposite, the result would be that English persons desiring to contract these marriages might go to Australia for that purpose. But under the Bill no such marriages would be recognized here unless the parties had been domiciled in Australia at the time of their marriages there. What mischief, then, would arise to religion or morals in England from legitimizing here the offspring of those marriages for purposes of inheritance? Take a case:—A man went to Australia —there married the sister of his deceased
  1178
  wife—children were born of the marriage—they would come in time to man's estate—a relation might die intestate. What mischief would arise from the children being allowed to succeed as heirs? He challenged hon. Gentlemen to point out a single instance of such mischief. On the other hand, the mischief which would occur from not making this concession was very great. The people who had gone out from among us and formed great Colonies were people whom we should not only not wish to alienate but to conciliate and bind to ourselves by all reasonable ties. Why, then, oppose their wishes in this instance from the petty considerations which had been urged on the other side? Looking at the question as statesmen governing a great country and wielding a great power, were they doing right by the people of England in denying what the Colonists desired? He asked the House and the Government to act on this question like statesmen—like men who governed great nations—not like bigots or narrow-minded men bound by prejudices sucked in with their mother's milk or derived from their nurses.
  THE ATTORNEY GENERALthought it an inconvenient mode of argument to imply that those who differed from you were narrow-minded men or bigots. If the question now before the House were as to whether the law should be altered, and a man should be permitted to marry his deceased wife's sister, be, speaking for himself, might not be prepared to oppose such a measure. But the law of England being what it was—the law of Ireland and Scotland being what they were—he did not think the measure now under discussion was one which should receive the sanction of Parliament. It had been said that we should be doing an injustice to the Colonists—that we should be alienating them, and giving them just ground of complaint—if we did not permit the Bill to pass. How so? What reason had the Colonists to complain if they were allowed to make in their own Colonies their own laws, even though the laws which they made were in conflict with the law of England? Suppose the law of a Colony were—probably in some Colonies it was —that real property, instead of descending to the eldest son, should descend upon intestacy to all the children equally. Could it be made a ground of complaint

  1179
  that when the children of such Colonists returned to England they found that land descended here according to the English law, and not according to the Colonial Law? There was a conflict between the laws of all countries, and no greater hardship was suffered by Colonists in such a case as this than by inhabitants of a foreign State with whose law our own conflicted. What, then, was the state of the law in regard to this matter? According to the English law, a man domiciled in this country could not contract a valid marriage with his deceased wife's sister, either here or elsewhere—such a marriage, whether contracted in England or elsewhere, was wholly null and void. The law of Scotland was more stringent still. Such a marriage in that country was not only void because illegal, but was a crime, and a man contracting the marriage might be subjected to severe penalties—formerly, if not now, to death. With respect to a marriage solemnized between a man and the sister of his deceased wife in a Colony where these marriages were legal the marriage was valid; and if the parties were domiciled there, it was also recognized as a valid marriage in England, the sole disability which the issue of such marriage were under being that they were not capable of inheriting real property here in cases of intestacy. But he must go a little further. If a man not domiciled in a Colony—and the domicile was a most important element in this question—married the sister of his deceased wife in that Colony, the marriage—although according to the law of the Colony it was perfectly good, and was recognized as valid whilst the man and his wife remained there—was not so recognized in England; but, on the contrary, was considered an invalid marriage altogether. That being so, the question arose—should the House pass such a measure on the question as the Bill which was now under discussion? The measure only proposed to deal with marriages between persons who had acquired a domicile in the Colony, and it did not propose to make valid here marriages contracted in the Colony when the parties were not domiciled there. Would not such a measure introduce greater confusion in the law than existed before? Two brothers might marry in the Colony, one domiciled and
  1180
  the other not domiciled there. Both marriages would be recognized as valid, and the children as legitimate in the Colony; but if the Bill passed, the issue of one marriage would be able to inherit landed property in England, whereas the issue of the other would be illegitimate and excluded. Again, a distinction would arise under the Bill between marriages contracted between domiciled parties in the Colony and similar marriages contracted in a foreign country. Great confusion would thus be created in the law, which alone would be a ground for objecting to the Bill. Besides, by passing it, the Imperial Legislature would be giving their sanction to a Colonial law which was directly antagonistic to the English law, and would in effect say not only that the Colonists had a right to make laws for themselves, but that those laws were much better than the laws of the United Kingdom. If this step were taken in the case of a Colony, why not in the case of Scotland? In Scotland a man might legitimize children per subsequens matrimonium. These children might inherit land in Scotland, but they could not do so in England. In short, they were in exactly the same position as the children of a man domiciled in the Colony and marrying his deceased wife's sister. Why distinguish in this respect between the Scotch, who were at our doors, and the people of Tasmania? Again, the Bill would inflict an injustice upon persons who in this country might have succeeded to land through the illegitimacy of the issue of these marriages in the Colony; because it was proposed to make the law retrospective, applying to "the issue of all such marriages as have been or shall hereafter be contracted;" and thus by an ex post facto statute a man might be deprived of property to which he had succeeded in the ordinary process of law. For these reasons, and for many others which might be adduced, he should certainly oppose the second reading of the Bill.
  SIR HENRY JAMESwished that his hon. and learned Friend had stated any additional reasons he might have for objecting to the Bill, because the reasons he had assigned were certainly not convincing, and at present there was no guarantee that the reasons he withheld were of any greater force. The House must feel that the discussion

  1181
  was swayed not so much by reference to the Bill as by the general consideration whether marriage should be allowed with a deceased wife's sister. He conceded that those who were opposed to such a marriage being legalized by the law which regulated marriage in England might be right, and perhaps, might be successful in their opposition; but that was not the question to be determined to-day. Accepting the Attorney General's statement of the law —though he was not quite so confident on this point as his hon. and learned Friend—he asked why, now that marriages of this kind were valid according to the colonial law, the issue of such marriages should have put upon them the badge of illegitimacy with regard to the taking of lands alone? Why was it not to affect the issue of such marriages in any other respect? Why were the issue of marriage of that kind alone to bear this mark of disgrace? It had been said that we were allowing Tasmania to give the law to England. The answer was that we had given the law to Tasmania. The Colonists had submitted this law to the Crown, which had sanctioned it. He was not contending that if a marriage were incestuous we ought to accept it because it had been made valid in a Colony; but here there was nothing immoral in such a marriage; and, the Crown having sanctioned it, how could we say to the Colonists—"You have power to make your own laws; this is a proper law: but when your children return to England, expecting to hold land, we will not give effect to your law, and your children shall be treated in this respect as though they were illegitimate?" Something had been said as to the possible evasion of the law by English people which the Bill would encourage. But the restriction as to domicile was put into the Bill for the purpose of preventing any evasion of the English law. The parties must be "domiciled,"—that was, according to Vattel's definition, there must be a residence fixed and certain, with the intention of "always" remaining; or, according to the bettor and more accurate definition of the American Judges, there must be an intention to remain "for an unlimited time." The Attorney General asked why Scotland was not to have the benefit of a similar
  1182
  provision? Now, he protested against this mode of argument. If there were anomalies in our law, it was no reason to say—"You shall not correct one anomaly unless you correct all." Moreover, when Scotland came into the Union, her laws—including the law relating to legitimacy, which had been taken from the Civil Law—were accepted by us, but we never ratified them. In the present case, however, we had sanctioned a law to our Colonies on the ground that it was good and just; and to say tat we should commence with alterations in the law of Scotland so as to make it more in accord with the law of England before we altered the position of the Colonists, was an argument which he had scarcely expected to hear from the Attorney General of England. When the question arose in regard to Scotland, let it be discussed on its own merits. Then his hon. and learned Friend the Attorney General said that persons already in possession of property might be disinherited under the Bill. Such a case was a peculiar one, and could scarcely occur. But if it were needful to alter the Bill in this respect, the Attorney General might easily propose in Committee that the Bill should not apply where a person was already in possession of land in this country. Such an Amendment would be fairly considered in Committee, and did not furnish any good reason why, upon a broad question of principle, there should be a denial of justice, and why the children of these marriages, who were legitimate for all other purposes in this country should be illegitimate for inheriting land.
  MR. HUBBARDsaid, he should like some hon. Member to assure him, if it were possible, that this measure was promoted mainly at the desire of Colonists. For his own part, he believed that it was supported and urged by the same individuals who year after year agitated for an alteration of the marriage law in this country with regard to a deceased wife's sister. The laws of this country were founded upon religion, enlightenment, and civilization; and he did not think that we ought to consider either the laws of foreign lands or the laws of the Colonies with a view to changing our own. He contended that uncertainty would be produced by the word "domicile" in the Bill, which might give opportunities for

  1183
  evading the English law. According to the marriage law of England "domicile" meant 15 days' residence; and there was no definition as to what was meant in the Colonies. If, however, the Bill referred only to persons whose residence in the Colony was fixed and determined, he was at a loss to understand from what practical grievance they suffered. However this might be, in considering what laws it was right to adopt in the Imperial Parliament, they were not bound to consider the laws passed in other countries, but should be guided by the wisdom of our ancestors and the interests and welfare of our own citizens. When, too, the hon. and learned Gentleman said "we" had given this law to the Colony, to whom did this word refer? To the Imperial Parliament? Certainly not;—it applied to the Law Advisers of the Crown at the moment the law was brought under their consideration; but the Law Officers of the Crown had been known to be mistaken in their law in more cases than one. It was possible there might be reasons—though he did not know what they were —which justified or extenuated a change in the Colonial law of marriage. Let the House of Commons divest itself of subserviency the authority of the Law Officers of the Crown in this instance, and deal with the question as one arising independently before them. From this point of view, it seemed to him that the sanction of the Bill would be to create evils infinitely greater than those which it would prevent.
  MR. SERJEANT SIMONsaid, the right hon. Gentleman who had just spoken said that the laws of England were founded on civilization, enlightenment, and religion; but Her Majesty had given her sanction to various colonial measures on this subject; and was he to be told that in so doing Her Majesty had given her sanction to what was contrary to civilization, enlightenment, and religion? The right hon. Gentleman said that the Colonies had not demanded this Bill; but he (Mr. Serjeant Simon) would remind him that last year a very large deputation, representing, he believed, all the Australian Colonies, waited upon the Secretary of State for the Colonies, and asked him to give his support to the measure now proposed. The measure, therefore, had been asked for by the Colonies;
  1184
  and asked for in a most emphatic way. There were many anomalies in regard to the marriage laws as between the Colonies and the mother country. The Colony with which he had been connected (Jamaica) had legitimatized by marriage of the parents children born out of wedlock. If these were religious marriages in the Colonies, he would ask why they should not also be recognized as religious here? The hon. and learned Attorney General had said that they were good for all purposes save the single one of inheritance. If they were good marriages for all other purposes, why should they not also be good for the purposes of inheritance? It was because of the uncertainty in the law as it stood that the Bill had been introduced. He should like to ask the Attorney General whether, if these marriages were good for every purpose but that of inheritance, a man would be indictable for bigamy who, having already contracted marriage with a deceased wife's sister in Australia, contracted another here, his wife being alive. If the man would be amenable to the criminal law it would be because his first marriage was good; and in his opinion the marriage, if held to be good for that purpose, would be good for all others, including inheritance. If it was not a good marriage in view of the criminal law, what was to be said for the morality of such a state of things? A man might contract a marriage in a Colony, then abandon his wife and marry here another woman, both marriages being equally lawful in the respective countries, but not in both at the same time. The marriage in England would not be lawful in the Colony, and the marriage in the Colony would not be lawful here. Surely such a state of things was not creditable. He protested that those who opposed the Bill were invoking a law of the Middle Ages into this nineteenth century, and were inflicting a great injury on the public morals. It was of the utmost importance to preserve the loyalty of the Colonies towards the mother country; but they could not expect to maintain that loyalty if they did not give to the Colonists when in the mother country the same rights which they possessed in their own homes abroad.
  MR. H. B. SAMUELSONmaintained that the Attorney General had taken up

  1185
  an untenable position in opposing the present Bill; when, at the same time, he admitted he was open to conviction on the general question of marriage with a deceased wife's sister. The Attorney General had asked why they touched only the fringe of the matter—why they did not deal with the general question? He would reply that it was because they thought half a loaf was better than no bread. It seemed to him an extraordinary thing that when Her Majesty with the consent of her Advisers had sanctioned these marriages in the Colonies they should be stigmatized here as irreligious and immoral. He supported the Bill because he believed the Colonies would have reason to feel themselves slighted if the children of marriages which had already been legalized amongst them were in this country to be regarded as illegitimate.
  MR. MARTENsaid, he should oppose the Bill. They were not accustomed in that House to hear the argument that the acts of the Crown ought to be binding upon them as free Englishmen in regard to what they did in the House; and yet it had been argued by the hon. Gentlemen opposite, that because the Crown had sanctioned the Acts of Colonial Legislatures legalizing these marriages, the mother country was bound to adopt them for itself. It seemed to him that the answer to that was obvious. We had given to the Colonies an independent existence as regarded their internal affairs, and the only control we retained over them was the control supposed to be necessary to keep them as part of the Empire. It surely then would be a most monstrous thing to suppose that the Crown when called upon to exercise the function of veto should decline to sanction any particular measure because the view taken by the Colony was not in accordance with the particular view entertained at home. The sanction which Her Majesty had given to these Acts was of a local character—she was acting as part of the local constitution in sanctioning a local measure. It seemed to him that the argument which had been adduced on the other hand entirely ignored the principle on which legislative independence had been given to the Colonies. If the Colonies made even greater alteration in their marriage law, was the British Parliament bound to adopt them? Further,
  1186
  suppose Parliament were to legalize marriage with a deceased wife's sister—what guarantee had they that they would. not be asked to adopt the Scotch law of legitimacy, in order to make the law at home adaptable to the law of the Colonies? It was said that the Colonists suffered a wrong in this matter, because the issue of a marriage of this description, though legitimate for all purposes in the Colonies, were not capable of inheriting landed estate in England. But it had been decided some time ago by the House of Lords that a person who was legitimate in Scotland, but not legitimate according to the law of England, could not succeed to real estate in this country;—therefore the Colonists suffered under no special grievance. The most troublesome questions that arose in our law were those which were connected. with domicile, and if this Bill were to pass the most difficult questions would arise in connection with it. A man might marry in succession two sisters of a deceased wife, and the children of the one where a domicile was established might be legitimate, while the children of the other where there was no such domicile might be illegitimate. The greatest anomalies might arise under the Bill, and he hoped the House would reject it.
  MR. OSBORNE MORGANsupported the second reading of the Bill, the subject of which lay within the smallest possible compass. To a great extent the Bill was merely declaratory—it did not say what the law ought to be, but merely declared what it was—namely, that marriages validly entered into in Australia should be good and valid here. And it had been decided by the House of Lords that a marriage within the prohibited degrees in England, but not within the prohibited degrees in Australia, if contracted in the latter place, would be perfectly valid for every purpose, with one exception—the inheritance of land. That would appear from the following extracts from the judgment in the House of Lords in the case of "Brooke v. Brooke":—
  "The forms of entering into the marriage contract are regulated by the lex loci contractus the essentials depend on the lex domicilii. If the latter are contrary to the law of the domicile, the marriage (though duly solemnized elsewhere) is void.… Lord Lyndhurst's Act affects all domiciled British subjects residing abroad for transient purposes. But it does not

  1187
  affect them when actually domiciled in British Colonies acquired by conquest where a different law prevails."
  Unless this were the law, many absurdities and anomalies would arise. For instance, an Englishman domiciled in Australia, and having married there his deceased wife's sister and having issue by her, might return to England, and might then invest £1,000 in the funds, and another £1,000 in the purchase of freehold land. At his death, intestate, his son by the second marriage would be legitimate as to the funded property but a bastard as to the land. A similar anomaly arose from the state of the Scotch law already referred to. But this was a reason for altering the Scotch law, not for opposing the present Bill; except, perhaps, on the principle that two wrongs made a right. Both these anomalies ought to be removed, and the law so altered, that a marriage good for some purposes should be good for all.
  THE ATTORNEY GENERAL FOR IRELAND (Mr. GIBSON)said, that the Bill partook somewhat of the nature of a pilot balloon, inasmuch as although nominally dealing with a small question it, in reality, heralded a much larger one. There would not have been so many speakers or so much interest displayed in the debate as there had been if hon. Gentlemen had not been thinking of another measure. From the beginning to the end of the discussion there had not been a single suggestion of any practical inconvenience in connection with this subject having occurred in the history of the Australian Colonies, so that, as far as the question actually before the House went, the point was purely one of theory and suggestion, and not a question that could be called practical. That was a circumstance of great importance, because he would again remind the House that of all the speakers who had taken part in the debate, and who had spoken in its favour, none of them had pretended that it was actually required to remedy any existing inconvenience. That was really a very important consideration when they were asked to pass a measure which, while apparently having a very narrow, would, as a precedent, in reality, have a very wide operation. Was it usual, he would ask, to find that those who emigrated to Australia left behind them large rights in succession
  1188
  in land? That was contrary to all experience; and therefore he thought it clear that the desire for legislation did not originate in the Colonies, but far nearer home. That suspicion was heightened by the circumstance that although much had been said in the debate about marriage with a deceased wife's sister there was not a single allusion in the Bill to such a lady as the deceased wife's sister. He would himself express no opinion upon the larger question, although he should be perfectly ready to deal with it when it arose legitimately. He should at present confine himself entirely to the merits of the Bill before the House. He objected, in the first place, to the retrospective character of the measure. He ventured to think that if its operation had been purely prospective, it would never have been introduced. It had been brought in, not only because it was retrospective, but because it was sweepingly and searchingly retrospective. To what extent did it go? He asserted that by it a marriage between an Australian Colonist and his deceased wife's sister 60 years ago would be legalized. It would, therefore, legalize marriages which were illegal at the time of their celebration, and he therefore ventured to suggest that the Bill was intended far more to legalize past marriages than those which might hereafter be contracted. If, therefore, the Bill was enacted in its present form, a person might come over from Australia, and on the ground that he had been legitimatized by this Act successfully claim that which was now in the possession of, and the property of, other people. That was sufficient to move the House to hesitate to assent to a Bill so likely to lead to the disturbance of property and the unsettlement of titles. The measure might even disturb the succession of titles to Peerages and high dignities, provided that it should turn out that a half-forgotten relative or even an uncle had many years ago contracted a marriage in Australia which would be legalized, and the issue of which would be legitimatized by this Bill. He, however, ventured to think that it would be a great scandal if the actual holder of a Peerage were dispossessed by a claimant whose right had accrued under such circumstances. Another objection he had to the Bill was that it would create one law for

  1189
  those who had remained at home and another for those who had emigrated to Australia, and it would make the enactment all in favour of those who emigrated. He denied that the law was at present doubtful as the Preamble asserted; and if there were no doubts, where was the justification for bringing it in? There was no wish to invalidate the colonial law; and all that he and those who thought with him desired was to prevent those laws from receiving a development which they did not now possess. There was no wish to restrict the freedom of legislation in the Colonies; but, at the same time, he thought it would be most objectionable to permit the Colonies virtually to dictate the legislation and the policy of England.
  MR. KNATCHBULL - HUGESSENsaid, that he would say a few words in reply, out of respect to the hon. Gentlemen who had opposed his Bill. He would first, however, ask the House to consider the difference between himself and his opponents. He (Mr. Knatchbull-Hugessen) introduced the Bill as one embodying a great principle—the removal of a colonial grievance. His opponents met him, he would not say by quibbles, but by raising a number of points infinitesimally small, and supposing a number of cases in which persons, in almost impossible circumstances, might possibly be aggrieved by the proposed alteration. Almost every point that had been raised might be easily settled in Committee. For instance, there was the objection just raised by the Attorney General for Ireland that persons who had inherited and held land for years, might be damnified by the Bill. This objection, however, had previously been made by the Attorney General for England, and answered by the hon. and learned Gentleman the Member for Taunton (Sir Henry James), who had suggested a proviso protecting such persons, which he (Mr. Knatchbull-Hugessen) was perfectly ready to accept. Then, said the hon. and learned Gentleman, there had no case arisen of colonial grievance yet. Well, in the Colonies as in England, the birth and rearing of children was a matter of time, and as the earliest of these Acts only received the Royal sanction in 1871, there had scarcely been time for a question of inheritance here to have arisen. What the advocates of
  1190
  the Bill wished was to prevent such grievance by timely legislation. The right hon. Gentleman the Member for the City of London (Mr. J. G. Hubbard) had denied that the Bill was demanded by the Colonists, and had declared that those who desired it were the advocates of the English Bill. Why, of course, those who were opposed to the restriction in England were opposed to its being also imposed upon Colonists who had contracted these marriages legally; but he (Mr. Knatchbull-Hugessen) had probably had greater opportunities than the right hon. Gentleman of ascertaining Colonial feeling on this question, and he took upon himself to say that there was a real demand and desire for this measure. The right hon. Gentleman had made use of another argument which much surprised him, coming as it did from one belonging to a Party which loved to call itself "Constitutional." He had impressed upon the House that we should deal with this Bill as we pleased, according to our own views, and should "put away the idea of being beund by the authority of the Crown." He (Mr. Knatchbull-Hugessen) belonged to a Party which, without calling itself Constitutional, adhered to and valued the true principles of the Constitution; and when the Crown, under the advice of responsible advisers, gave a deliberate and solemn sanction to a Colonial measure, he, for one, attached great importance to such an act. The hon. Gentleman the Member for Cambridge University (Mr. Beresford Hope) had thought fit to joke upon the question, and had suggested that persons would take trips under the auspices of Mr. Cooke for the performance of these marriages. No one was more fond of a joke than his hon. Friend, and no one more highly appreciated his own jokes, for his hon. Friend usually himself led the laugh with which they were received by the House. In his opinion, however, this was not the subject for a joke, but a matter with which the House should deal seriously. The Attorney General for Ireland had begun by saying that this Bill was properly an appendage of the English Deceased Wife's Sister Bill, and had ended by saying that it could only be considered upon its independent merits. In such a manner it had been discussed, and with regard to the domicile question which had been so much

  1191
  spoken of, he repeated that he was ready to show his own bona fides in the matter by consenting in Committee to a fixed term of residence being inserted, which should secure the Bill's being what he wished it to be—a measure of relief, and not one to allow evasion of the law. His noble Friend the Member for North Northumberland (Earl Percy), speaking with his usual force, had urged the House not to "allow the Colonists to dictate to us." British Parliaments had heard similar language in past times, and from the use of such language and the adoption of the policy recommended by it, disastrous consequences had ensued. He appealed to those who valued, as he did, the Colonial Empire of this country, and who prized the continuance of good feeling between our Colonists and ourselves, not to listen to such appeals as those of the noble Lord, but to show their respect for the feelings and just wishes of the Colonists by giving a second reading to the Bill before them.
  MR. CHARLES LEWISsaid, the two questions of the law of this country and of the relief to be afforded by this Bill were quite distinct; and he thought the House ought to look at the Bill from the Colonists' point of view. It was not right or human that a Colonist who conducted himself well as a British citizen, because he chose to marry in accordance with the law of the Colony, should have himself and his children exposed to the indignity and wrong which the present state of our law would inflict upon him.
  Question put, "That the word now ' stand part of the Question."
  The House divided:—Ayes 192; Noes 141: Majority 51.

  AYES.

  Adam, rt. Hon. W. P.

  Brady, J.

  Amory, Sir J. H.

  Briggs, W. E.

  Anderson, G.

  Bright, J.

  Anstruther, Sir W.

  Brogden, A.

  Ashbury, J. L.

  Brooks, M.

  Ashley, hon. E. M.

  Brown, A. H.

  Backhouse, E.

  Brown, J. C.

  Barclay, A. C.

  Burt, T.

  Bass, A.

  Cameron, C.

  Baxter, rt. hon. W. E.

  Campbell-Bannerman, H.

  Beaumont, Major F.

  Beaumont, W. B.

  Cave, T.

  Biddulph, M.

  Cavendish, Lord F. C.

  Biggar, J. G.

  Cawley, C. E.

  Blake, T.

  Chadwick, D.

  Blennerhassett, R. P.

  Chamberlain, J.

  1192

  Chambers, Sir T.

  Laverton, A.

  Chaplin, H.

  Law, rt. hon. H.

  Childers, rt. hon. H.

  Lawrence, Sir J. C.

  Clarke, J. C.

  Lawson, Sir W.

  Clifton, T. H.

  Leatham, E. A.

  Clive, G.

  Lefevre, G. J. S.

  Colebrooke, Sir T. E.

  Legard, Sir C.

  Collins, E.

  Leith, J. F.

  Conyngham, Lord F.

  Lewis, C. E.

  Corbett, J.

  Locke, J.

  Cotes, C. C.

  Lusk, Sir A.

  Cotton, rt. hn. W. J. R.

  Macdonald, A.

  Courtney, L. H.

  Macduff, Viscount

  Cowan, J.

  M'Arthur, A.

  Cowen, J.

  M'Arthur, W.

  Cowper, hon. H. F.

  M'Kenna, Sir J. N.

  Cross, J. K.

  Maitland, W. F.

  Deedes, W.

  Marjoribanks, Sir D. C.

  Denison, C. B.

  Marling, S. S.

  Denison, W. B.

  Martin, P. W.

  Dickson, Major A. G.

  Massey, rt. hon. W. N.

  Dilke, Sir C. W.

  Meldon, C. H.

  Dillwyn, L. L.

  Mellor, T. W.

  Dodson, rt. hon. J. G.

  Middleton, Sir A. E.

  Duff, M. E. G.

  Monk, C. J.

  Dundas, J. C.

  Morgan, G. O.

  Edwards, H.

  Mundella, A. J.

  Egerton, hon. A. F.

  Muntz, P. H.

  Egerton, Adm. hon. F.

  Murphy, N. D.

  Ennis, N.

  Noel, E.

  Evans, T. W.

  Norwood, C. M.

  Fawcett, H.

  O'Byrne, W. R.

  Ferguson, R.

  O'Callaghan, hon. W.

  Fitzmaurice, Lord E.

  O'Shaughnessy, R.

  Forster, Sir C.

  Parnell, C. S.

  Forster, rt. hon. W. E.

  Pease, J. W.

  Gardner, J. T. Agg-

  Pender, J.

  Goldsmid, Sir F.

  Pennington, F.

  Goschen, rt. hon. G. J.

  Perkins, Sir F.

  Gourley, E. T.

  Philips, R. N.

  Gower, hon. E. F. L.

  Potter, T. B.

  Grey, Earl de

  Power, R.

  Grosvenor, Lord R.

  Price, W. E.

  Hamilton, hon. R. B.

  Puleston, J. H.

  Hankey, T.

  Ralli, P.

  Harcourt, Sir W. V.

  Rathbone, W.

  Harrison, C.

  Redmond, W. A.

  Harrison, J. F.

  Reed, E. J.

  Hartington, Marq. of

  Richard, H.

  Havelock, Sir H.

  Robertson, H.

  Hayter, A. D.

  Roebuck, J. A.

  Heath, R.

  Rothschild, Sir N. M. de

  Herbert, H. A.

  Samuelson, B.

  Hill, T. R.

  Samuelson, H.

  Hinchingbrook, Visct.

  Sanderson, T. K.

  Hodgson, K. D.

  Sandford, G. M. W.

  Holms, J.

  Seely, C.

  Holms, W.

  Shaw, W.

  Holt, J. M.

  Sheridan, H. B.

  Howard, hon. C.

  Sherriff, A. C.

  Howard, E. S.

  Simon, Mr. Serjeant

  Hutchinson, J. D.

  Smith, E.

  Ingram, W. J.

  Smyth, R.

  James, Sir H.

  Stafford, Marquess of

  Jenkins, D. J.

  Stansfeld, rt. hon. J.

  Johnston, W.

  Stepney, E. A. A. K. C.

  Johnstone, Sir H.

  Stuart, Colonel

  Kay - Shuttleworth, U. J.

  Sullivan, A. M.

  Swanston, A.

  Kenealy, Dr.

  Talbot, C. R. M.

  Kennard, Colonel

  Taylor, D.

  Kensington, Lord

  Taylor, P. A.

  King-Harman, E. R.

  Tennant, R.

  1193

  Torr, J.

  Wilmot, Sir H.

  Trevelyan, G. O.

  Wilmot, Sir J. E.

  Villiers, rt. hon. C. P.

  Wilson, C.

  Wait, W. K.

  Wilson, Sir M.

  Watkin, Sir E. W.

  Yorke, J. R.

  Weguelin, T. M.

  Young, A. W.

  Whalley, G. H.

  TELLER.

  Whitbread, S.

  Gurney, rt. hon. R.

  Whitwell, J.

  Knatchbull-Hugessen, rt. hon. E.

  Williams, W.

  NOES.

  Adderley, rt. hn. Sir C.

  Heygate, W. U.

  Allsopp, C.

  Hogg, Sir J. M.

  Arkwright, A. P.

  Holker, Sir J.

  Balfour, A. J.

  Holmesdale, Viscount

  Baring, T. C.

  Home, Captain

  Barne, F. St. J. N.

  Hubbard, E.

  Barttelot, Sir W. B.

  Hubbard, rt. hn. J. G.

  Bates, E.

  Hunt, rt. hon. G. W.

  Beach, rt. hn. Sir M. H.

  Johnson, J. G.

  Beach, W. W. B.

  Johnstone, Sir F.

  Beresford, Colonel M.

  Kinnaird, hon. A. F.

  Birley, H.

  Learmonth, A.

  Blackburn, Col. J. I.

  Lechmere, Sir E. A. H.

  Bright, R.

  Legh, W. J.

  Bruen, H.

  Lewis, O.

  Bulwer, J. R.

  Lindsay, Col. R. L.

  Burrell, Sir W. W.

  Lloyd, S.

  Cameron, D.

  Lloyd, T. E.

  Cave, rt. hon. S.

  Lopes, Sir M.

  Christie, W. L.

  Lowther, hon. W.

  Cochrane, A.D.W.R.B.

  Macartney, J. W. E.

  Cole, Col. hon. H. A.

  Mackintosh, C. F.

  Cordes, T.

  M'Lagan, P.

  Corry, J. P.

  Majendie, L. A.

  Crichton, Viscount

  Makins, Colonel

  Cross, rt. hon. R. A.

  Malcolm, J. W.

  Cubitt, G.

  Manners, rt. hn. Lord J.

  Cuninghame, Sir. W.

  Marten, A. G.

  Dalrymple, C.

  Matheson, A.

  Davenport, W. B.

  Mills, Sir C. H.

  Digby, hon. Capt. E.

  Monckton, F.

  Dunbar, J.

  Montgomerie, R.

  Dyke, Sir W. H.

  Montgomery, Sir G. G.

  Edmonstone, Admiral Sir W.

  Mowbray, rt. hon. J. R.

  Muncaster, Lord

  Egerton, hon. W.

  Naghten, Lt.-Col.

  Elliot, G. W.

  Noel, rt. hon. G. J.

  Ewing, A. O.

  North, Colonel

  Fellowes, E.

  Northcote, rt. hon. Sir S. H.

  Floyer, J.

  Forester, C. T. W.

  O'Clery, K.

  Freshfield, C. K.

  O'Neill, hon. E.

  Gallwey, Sir W. P.

  Paget, R. H.

  Garnier, J. C.

  Parker, Lt.-Col. W.

  Gibson, rt. hon. E.

  Pelly, Sir H. C.

  Gorst, J. E.

  Pemberton, E. L.

  Greenall, Sir G.

  Plunket, hon. D. R.

  Gregory, G. B.

  Ramsay, J.

  Grieve, J. J.

  Repton, G. W.

  Hamilton, I. T.

  Ridley, M. W.

  Hamilton, Lord G.

  Round, J.

  Hamilton, Marquess of

  Sackville, S. G. S.

  Hamond, C. F.

  Samuda, J. D'A.

  Hardy, rt. hon. G.

  Sandon, Viscount

  Hardy, J. S.

  Sclater-Booth, rt.hn.G.

  Harvey, Sir R. B.

  Scott, M. D.

  Hay, right hon. Sir J. C. D.

  Selwin-Ibbetson, Sir H. J.

  Henley, rt. hon. J. W.

  Sherlock, Mr. Serjeant

  Herbert, hon. S.

  Shute, General

  1194

  Simonds, W. B.

  Trevor, Lord A.E. Hill-

  Smith, A.

  Walker, T. E.

  Smith, F. C.

  Wallace, Sir R.

  Smith, W. H.

  Walpole, rt. hon. S.

  Smollett, P. B.

  Watney, J.

  Stanhope, hon. E.

  Watson, W.

  Stanhope, W. T. W. S.

  Whitelaw, A.

  Stanton, A. J.

  Wilson, W.

  Stewart, M. J.

  Winn, R.

  Sykes, C.

  Yeaman, J.

  Talbot, J. G.

  Yorke, hon. E.

  Taylor, rt. hon. Col.

  TELLERS.

  Thornhill, T.

  Hope, A. J. B. B.

  Thynne, Lord H. F.

  Percy, Earl

  Bill read a second time, and committed for To-morrow.

OPEN SPACES (METROPOLIS) BILL.
(Mr. Whalley, Mr. Morgan Lloyd, Sir George Bowyer.)
OPEN SPACES (METROPOLIS) BILL.

  [BILL 62.] SECOND READING.
  Order for Second Reading read.
  MR. WHALLEY,in moving that the Bill be now read the second time, explained that its object was to facilitate the acquisition by, and the transference to, the Metropolitan Board of Works of certain squares and other open spaces in the Metropolis. He said there were several such open spaces which were enjoyed by a limited number of persons, the owners of which were ready to transfer them to the local authorities on proper conditions as to maintenance and regulation. The Bill consequently did not give any compulsory powers, but would enable the Metropolitan Board of Works to acquire gardens and open spaces, by purchase or gift, for the recreation and amusement of the public, and enable them to make bye-laws and regulations for their preservation. Since the subject had been first brought under the notice of Parliament a strong feeling had been manifested by the public in favour of such a measure, and as an illustration of the benefits which might arise from it he would point out the facilities which had been given in the case of the Temple Gardens, where, in the afternoons during some months in the year, 2,000 or 3,000 children might frequently be found enjoying themselves, without inconvenience or annoyance to the members of the Temple. He should like to see similar facilities given to the public in the case of Lincoln's Inn and some of the squares, and wished to state that the Duke of Westminster was anxious

  1195
  that some recognized authority should take charge of one of which he was owner. As originally drawn, the Bill contained compulsory clauses which were objected to. These had been withdrawn, and therefore he hoped the Bill would be allowed to pass a second reading.
  Motion made, and Question proposed, "That the Bill be now read a second time."—(Mr. Whalley.)
  MR. ASSHETON CROSSsaid, he would not offer any opposition to the second reading as all the objectionable features had been taken out of the Bill. If it would give the people of London more places of recreation, no one would rejoice more heartily than himself.
  Question put, and agreed to.
  Bill read a second time, and committed for To-morrow.

THRESHING MACHINES BILL— [BILL 20.]
(Mr. Chaplin, Mr. Clare Read.)
THRESHING MACHINES BILL— [BILL 20.]

  COMMITTEE.
  Order for Committee read.
  Motion made, and Question proposed, "That Mr. Speaker do now leave the Chair."—(Mr. Chaplin.)
  MR. BIGGARrose to move that the House do go into Committee on this day six months. There were several reasons why he did so. The Bill had obtained some support among hon. Members connected with agriculture; but yet he could not help thinking there was a want of thoroughness and a narrowness of scope in its provisions that would render it inoperative. He was somewhat surprised that that should be so, seeing that the hon. Gentleman who introduced the Bill (Mr. Chaplin) enjoyed plenty of leisure and industry, as was evident a few nights ago, when he delivered a speech directed against the right hon. Gentleman the Member for Greenwich which he had learned by heart. ["Order!"] Well, if he had not learned it, perhaps he read it on that occasion. If the opinion of an expert upon agricultural machines had been consulted perhaps the foundation of a better Bill might have resulted. This Bill dealt with threshing machines merely. Another year might bring a Bill upon churning machines, then again
  1196
  on mowing machines. He could not see any special reason why legislation was directed to threshing machines more than to other machines used on a farm. The hon. Member was proceeding to examine the Bill clause by clause, when—
  MR. SPEAKERsaid, the hon. Member was not in Order in going through the Bill clause by clause on the Motion "that I do leave the Chair." The discussion of the clauses was reserved for Committee, and his remarks must be directed to the general principles of the Bill.
  MR. BIGGARsaid, he was anxious to point out how bad the Bill was from first to last. It opened up a great many questions which it did not settle. For instance, the liability of the master when one servant injured another, and so on. If Bills were to be introduced for every kind of machine used on a farm, there would be no end of legislation, and every hon. Member would be claiming the honour of having his name on the back of a Bill. The hon. Member proceeded amid continued cries of "Order!" and "Chair!" until—
  It being a quarter of an hour before Six of the clock, the Debate stood adjourned till To-morrow.

  SUPREME COURT OF JUDICATURE BILL.
  Resolution [February 27] reported, and agreed to:—Bill ordered to be brought in by Mr. ATTORNEY GENERAL, Mr. Secretary CROSS, and Mr. WILLIAM HENRY SMITH.
  Bill presented, and read the first time. [Bill 103.]

  HOMICIDE LAW AMENDMENT BILL.
  On Motion of Sir EARDLEY WILMOT, Bill to amend the Law of Homicide, ordered to be brought in by Sir EARDLEY WILMOT and Mr. WHITWELL.
  Bill presented, and read the first time. [Bill 104.]

  HABITUAL DRUNKARDS BILL.
  On Motion of Dr. CAMERON, Bill to facilitate the control and care of Habitual Drunkards, ordered to be brought in by Dr. CAMERON, Mr. CLARE READ, Mr. ASHLEY, Sir HENRY JACKSON, Mr. EDWARD JENKINS, and Mr. RICHARD SMYTH.
  Bill presented, and read the first time. [Bill 105.]
  House adjourned at ten minutes before Six o'clock.