MY LORD,
No. 96.
(QUEENSLAND.)
THE LORD CHANCELLOR to COLONIAL OFFICE.
House of Lords, 25th May 1876,
I AM directed by the Lord Chancellor to acknowledge the receipt of your Lordship's letter of the 21st ultimo, with its enclosures, inviting the Lord Chancellor to express his opinion upon the competency of the Queensland Legislature to pass an Act entitled "A Bill to legalize the marriage of a man with the sister of his deceased "wife."
The Lord Chancellor desires me in reply to state to your Lordship that he cannot think that the Queensland Act in its present form ought to receive the Royal Assent.
So far as it enacts that marriages duly solemnized within the Colony between any person and his deceased wife's sister shall be deemed valid, the Act would be unques- tionably within the competency of the Parliament of Queensland. But the Act goes on to enact that a marriage solemnized (in any part of the world) between a man domiciled in the Colony and his deceased wife's sister shall be deemed valid.
This enactment would therefore be equivalent to a declaration of a Queensland Parliament that a marriage between a domiciled Queensland man and a domiciled Englishwoman celebrated in England should, although absolutely invalid in England, be a valid marriage for all Queensland purposes.
The legislation is in this respect, as far as the Lord Chancellor knows, absolutely unprecedented. It is a violation of the fundamental principles that a contract is to be governed by the lez loci contractus. in certain cases a personal incapacity to contract upon its own domiciled subjects; The English law with regard to marriage affixes that is to say, if an Englishnan were to celebrate in Denmark a marriage with his wife's sister, valid according to the law of Denmark, the English law would hold it invalid, because by English law the man was personally incapable of contracting the marriage in Denmark or in any other place; but the Lord Chancellor knows no instance in which English law has said that a marriage invalid in the place where it was celebrated should be held valid in another country.
The Lord Chancellor may perhaps add that, if a new Act is to be passed in Queensland on the subject, the form adopted in the Victorian statute appears to him to be a safer form than the Queensland one; that is to say, in place of enacting that
66
all marriages duly solemnized shall be valid," it would be better to say "no marriage between a man and the sister of his deceased wife shall within Queensland "be voidable or in any way impeachable upon the ground only of such affinity between the parties thereto, any law to the contrary notwithstanding,”—adding a proviso similar to that in the first section of the Queensland Act.
The Right Hon. the Earl of Carnarvon,
&c.
&c.
&c.
I have, &c.,
(Signed) HENRY J. L. GRAHAM,
Principal Secretary.
A 1996-95, 25.-19/84.
PUBLIC RECORD OFFICE
Reference :--
THILLICO. 885
12 PUBLIC RECORD OFFICE, LONDON
ALLY WITHOUT PERMISSION OF THE BE REPRODUCED PHOTOGRAPHIC- COPYRIGHT PHOTOGRAPH—NOT TO
i
6489.