9224.
PUBLIC RECORD OFFICE
!
Reference :-
C.O. 885
10
PUBLIC RECORD OFFICE, LONDON
ALLY WITHOUT PERMISSION OF THE BE REPRODUCED PHOTOGRAPHIC- COPYRIGHT PHOTOGRAPH-NOT TO
I
I
J
SIB,
No. 278.
(HELIGOLAND.)
QUEEN'S ADVOCATE to COLONIAL OFFICE.
Doctors' Commons, October 6, 1864.
Gov. No. 21, 20 Aug. No. 18
I AM honoured with your commands, signified in Sir F. Rogers' letter of the 26th ultimo, stating that, with reference to my letter of the 7th July, he was directed G... July 1864. to transmit to me a copy of a Despatch addressed to the Governor of Heligoland, in ithdance No. 10. together with a copy of his reply on the subject of the Law of Divorce proposed to be Ag, 1865, Fatract adopted in that island, and to request that I would furnish you with my opinion upon o. 15, 19 Dre. 1483, Ex- Governor Maxse's remarks. The previous papers were also enclosed for convenience t of reference.
In obedience to your commands, I have taken this matter again into consideration, and have the honour to
Report
I
That, as on the former occasion, when this question was submitted to me, I abstain from any observations upon the general question of the policy of introducing such a Matrimonial and Divorce Court as it is proposed to establish into Heligoland learn from the reply of the Governor that lie conceives that at present there is no law in that island upon the subject of marriage and divorce. He proposes that the law as to nullity of marriage should be identical with the English law, and be enumerates some of the principal cases in which a sentence of nullity would be pronounced. His enumeration is not quite complete, inasmuch as the marriage of the husband with the wife's sister finds no place in his catalogue, but his intention is, that the jurisdiction as to nullity of inarriage shall be co-extensive with that possessed by the law of England.
With regard to a very painful but most important class of cases, I think it right to make some special observation. I advert to those cases in which the marriage is to be pronounced null on the ground that one of the parties was, by reason of original physical impotence, incompetent to enter into the contract; it certainly would appear to mo (imperfectly acquainted as I am with the character and' status of professional persons resident in that Colony) that the necessary means were wanting for the purpose of conducting such a judicial investigation.
In England the opinion of two or three of the most eminent medical practitioners, founded upon a careful scientific examination of the persons both of the plaintiff and defendant, is invariably required; in fact, it constitutes the principal evidence in the causo, and it is always competent to the defendant to produce the counter testimony of persons of eminence in the same profession as well as other testimony, and to this par- ticular class of evidence is added the deposition of both the parties to the suit as to the fact of sexual intercourse having or not having taken place between them.
As at present advised, I do not suppose that Heligoland can furnish the scientific testimony upon which the Court must mainly rely in these cases; and if this supposi- tion be well founded, I doubt whether this branch of jurisdiction as to the nullity of marriage ought to be conceded to the tribunal which it is proposed to constitute in that island.
With respect to jurisdiction on the subject of desertion there is considerable force in the observations of the Governor, and if the exercise of thie jurisdiction be strictly limited to cases in which the parties to the suit have been married in the island, I think it may be granted according to the wish of the Governor.
I have, &c. (Signed) The Right Hon. Mr. Secretary Cardwoll, M.P.
&c.
&c.
&c.
ROBERT PHILLIMORE.
C. O. No. 12,17 Nov. 1863, Extract.
No. 17, 18 Jan. 1864. Order in Council. Commission appolating
Instructiora under Sign Matiuni.
Col. Base Governor.
0 16278.-107.
25.-2/8/
* No. 25".
PUBLIC RECORD OFFICE
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Reference :-
C.O.
885
10 PUBLIC RECORD OFFICE, LONDON
ALLY WITHOUT PERMISSION OF THE BE REPRODUCED PHOTOGRAPHIC- COPYRIGHT PHOTOGRAPH—NOT TO
;
No. 278.
(HELIGOLAND.)
QUEEN'S ADVOCATE to COLONIAL OFFICE.
Doctors' Commons, October 6, 1864. onoured with your commands, signified in Sir F. Rogers' letter of the tating that, with reference to my letter of the 7th July, he was directed o mo a copy of a Despatch addressed to the Governor of Heligoland, a copy of his reply on the subject of the Law of Divorce proposed to be nt.island, and to request that I would furnish you with my opinion upon <so's remarks. The previous papers were also enclosed for convenience o to your commands, I have taken this matter again into consideration, honour to
Report
the former occasion, when this question was submitted to me, I abstain ervations upon the general question of the policy of introducing such a and Divorce Court as it is proposed to establish into Heligoland
reply of the Governor that lie conceives that at present there is no law
I
upon the subject of marriage and divorce. He proposes that the law as narriage should be identical with the English law, and he enumerates rincipal cases in which a sentence of nullity would be pronounced. His s not quite complete, inasmuch as the marriage of the husband with the nds no place in his catalogue, but his intention is, that the jurisdiction as narriago shall be co-oxtensive with that possessed by the law of
d to a very painful but most important class of cases, I think it right to ecial observation. I advert to those cases in which the marriage is to be ull on the ground that one of the parties was, by reason of original stence, incompetent to enter into the contract; it certainly would appear fectly acquainted as I am with the character and status of professional lent in that Colony) that the necessary means were wanting for the nducting such a judicial investigation.
I the opinion of two or three of the most eminent medical practitioners, 1 a careful scientific examination of the persons both of the plaintiff and invariably required; in fact, it constitutes the principal evidence in the is always competent to the defendant to produce the counter testimony of inence in the same profession as well as other testimony, and to this par- of evidenco is added the deposition of both the parties to the suit as to xual intercourse having or not having taken place between them. ent advised, I do not suppose that Heligoland can furnish the scientific on which the Court must mainly rely in these cases; and if this supposi- founded, I doubt whether this branch of jurisdiction as to the nullity of ght to be conceded to the tribunal which it is proposed to constitute in
Jet to jurisdiction on the subject of desertion there is considerable force in ons of the Governor, and if the exercise of this jurisdiction be strictly scs in which the parties to the suit have been married in the island, I think inted according to the wish of the Governor.
I have, &c. (Signed)
Hon. Mr. Secretary Cardwell, M.P.
&c...
&o.
• No. 25".
ROBERT PHILLIMORE.
a 54, 21 July 1864.
Giov. No. 21, 20 Aug. No. 16 8 JE 18
Dni hdnance No. 10, g 1863, Extract
15
C. O. No. 12,17 Nov. 1863,
tract.
18, 19 Dec. 1888, Ex- 17, 18 Jan. 1956.
Order In Council. Commission appointing
Col. Jake a Governor.
Instruction under Bign Manual.
107.
25.—2/8^.