PUBLIC RECORD OFFICE
Reference :-
PEPEC.O. 885
10 PUBLIC RECORD OFFICE, LONDON
ALLY WITHOUT PERMISSION OF THE BE REPRODUCED PHOTOGRAPHIC. COPYRIGHT PHOTOGRAPH-NOT TO
Having ventured to make these general observations I pass on to the consideration of the specific measure which it is proposed to pass into a law. But I must first express my regret that the judicial decision of the Supreme Court of the Colony referred to upon the subject has not been forwarded to your Grace. It would have afforded some light in a matter of so much obscurity as to what is supposed to be the existing state of the law with respect to these marriages, and it is unsafe to form an opinion respecting it upon a report of its general tenour made by a person who, however able, is not a lawyer.
It may be well worthy of your Grace's consideration whether your final decision upon the expediency of this messure should not be delayed until an opportunity has been afforded of examining this important sentence, of which I conclude a printed report could be easily procured. I should feel myself in all probability better qualified to advise your Grace if I had before me the judicial reasoning by which that decision had been governed.
The proposed statute might affect two classes of natives:
(1.) Those who are subject to the native laws in force in the Colony.
(2.) Those who are exempted from the operation of these laws.
Clause 10 of the statute, however, proposes to allow this class of natives to marry without restriction according to a Christian ritual. It is therefore the operation of the statute upon the former class that is to be considered.
If the basis upon which the Lieutenant-Governor is to build his scheme be sanc- tionéd, clauses, 1, 2, and 3 appear to be requisite.
The Schedule A. affixed seems to me too complicated and minute in its provisiona in the 5th paragraph, more especially when the next clause inflicts the pains and penalties of perjury upon any mis-statement (though it must be wilful) of particulars by a native.
The 5th and 6th clauses relate to the consent of parents and guardians of minors, which are also of a complicated character, and which throw a considerable burden of duty of a semi-judicial character upon the Lieutenant-Governor.
Clauses 7 and 8 are, if the basis be admitted, a necessary part of the scheme.
The 9th clause, I have already said, I think objectionable, so far as it pronounces null and void a Christian marriage for reasons unknown to any law or custom of any Christian State.
The argument for the necessity of such a provision is, perhaps, an argument against the expediency of the whole measure.
Clause 12 I have already expressed my opinion upon.
Clause 13 is said to be required by the present state of things in the Colony. It certainly furnishes no reason for passing the measure, and, as I shall presently observe,
is inconsistent with clause 17.
Clause 14 is unobjectionable.
Clauses 15 and 16 are probably necessary to the scheme of the measure; they illus-~ trate, however, the difficulties which beset it.
Clause 17 is of an extraordinary character: if Christian marriage is not to be treated as ipso facto exempting the parties from native law, it can hardly, I think, stand with clause 13. A native should not be allowed to remain under a law which permits polygamy, if he is to be penally prosecuted for bigamy.
Clauses 18, 19, and 20 ̊are unobjectionable.
As I have been desired to report to your Grace upon the whole subject of the pro- posed measure, I hope your Grace will not think that in the remarks which I have thought it my duty to make I have exceeded my proper province of legal adviser.
I have, &c. (Signed) ROBERT PHILLIMORE.
To His Grace the Duke of Newcastle.
C
1864
J