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PUBLIC RECORD OFFICE

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12 PUBLIC RECORD OFFICE, LONDON

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I do not think it can be successfully contended that the introduction of a system of divorce in this country has altered the effect of this course of judicial decision. It is true that the supposed indissolubility of an English marriage was one of the grounds commonly insisted upon to support the decision in Lolley's case, but the very terms of that decision imply the reverse of that proposition.

They obviously point to the proposition that for some grounds an English marriage is liable to be dissolved à vinculo matrimonii; and though, as was pointed out by Lord Colinsay (in the case of Shaw v. Gould, L.R., 3 HI.L. 91), the procedure for obtaining a dissolution of marriage was by a Bill in Parliament and not by a suit in Court, yet it could not, I think, be said to be held as a principle of English law, in the face of that decision, that marriage was absolutely indissoluble; and the establishment of a Court to administer the law of divorce did not alter the inherent qualities of the institution called marriage, as it existed in England and in all other Protestant countries. See the observa- tion of Lord Golinsay at page 92. I am, therefore, led to the conclusion that the English Divorce Act cannot be said to have qualified or altered the law of England, as laid down by the unanimous decision of the Judges in Lolley's case; and, under those circumstances, I must assume that, according to the law of England, an English marriage cannot be dissolved for any cause for which it cannot be dissolved by English law.

It will be remembered that the Imperial Statute 28 & 29 Vict. c. 64. only gives validity to marriages in Her Majesty's Colonial possessions where both of the parties thereto were, according to the law of England, competent to contract the same; and however desirable it might be by legislation to alter what I must take to be the rule of law in England, yet, as long as Lolley's case stands as the guiding authority, I am compelled to answer the first question, that in England a decree pronounced under the suggested Act would have no operation upon a marriage contracted in England.

In reply to the second question, it follows as a corollary from this, that the children of a second marriage of either of the divorced persons, contracted in the lifetime of the other, would be able to succeed to property in New South Wales, but not out of it.

In reply to the third question, I am of opinion that it is most undesirable to increase and extend the conflict of law which unhappily already exists between Scotland and England.

The Marriage Law Commission reported in 1868, (page 26 of the report,) upon the extreme inconvenience and hardship arising from that conflict; and I cannot better express the objection I entertain to the Act in question, involving, as it does, I think, the consequence I have pointed out, than by referring to the reasons given by the House of Lords in 1960 for disagreeing to certain amendments made by the Commons in "The Conjugal Rights Bill" introduced by Lord Campbell into the House of Lords,

Their Lordships stated, as one reason for their disagreement to the amendment, "because the most grievous inconvenience arises from the existing state of the law of Scotland and England on this subject, as declared by judicial decisions in both countries; for according to this, where parties have been married in England, a "sentence of divorce pronounced in Scotland is valid in Scotland and a nullity in England; so that the divorced woman still remains the wife of the husband in England, but the husband and wife are free to contract another valid marriage in Scotland, and "the children of such second marriage are legitimate in Scotland but bastards in England; and the husband or wife, again marrying in England after the divorce in Scotland, is liable to be indicted for bigamy, and punished by penal servitude."

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As one additional reason against the Act in question, it is obvious that the facility afforded to collusion by such an Act as is now under discussion is very great. At present no husband can divorce his wife upon the ground of her adultery without social ruin to her, and even with respect to the husband no wife can divorce her husband except on grounds such as cruelty, incest, &c., in addition to adultery, which make him to some extent, if not equally, averse to having such a taint inflicted upon his future career by judicial decision. According, however, to the proposed statute the marriage is susceptible of being dissolved upon the mere proof of adultery by the husband; and it is undoubtedly a fact, however much it may be deprecated, that an imputation of conjugal infidelity alone against the husband is one involving no social degradation to the husband, and to the imputation of which a person desirous of dissolving his marriage would be comparatively indifferent.

For these reasons I have to submit my opinion that the Act is not one which can properly be submitted for Her Majesty's sanction.

John Bramston, Esq.,

&c.

&c.

I have, &c.,

(Signed) HARDINGE S. GIFFARD,

No. 163

(SIERRA LEONE.)

LAW OFFICERS to COLONIAL OFFICE.

Temple, 12th February 1878.

SIR,

We were honoured with the commands of the Earl of Carnarvon signified in Mr. Malcolm's letter of the 22nd November last, stating that he was directed by his Lordship to transmit to us for our consideration a copy of a Despatch from Mr. Horatio Huggins, Chief Justice of Sierra Leone, written while in the temporary administration of the government, in which he raises the question whether the English Statute of Limi tations, 3 & 4 William IV. c. 27. was in force in that Colony.

That his Lordship did not trouble us with the enclosures to Mr. Huggins' Despatch, which related to questions of title to property which the Government of Sierra Leone were proposing to purchase from a Mr. Heddle, with funds advanced from the Imperial Treasury.

That with regard to Mr. Huggins' difficulty as to the application of English law so far as local circumstances would permit, Mr. Malcolm was to draw our attention to the case of Ruckmaboye v. Lulloobhoy Mottichand (8 Moore, P.C. Rep., page 4), in which a judicial construction was put upon the words "absent beyond seas ring in a statute of limitations, when adopted in a foreign dependency of the Crown, which would seem to remove any difficulty in applying the 16th section of the statute 33 & 4 William IV. c. 27. in Sierra Leone.

ag occur-

That Mr. Malcolm was to request that we would furnish his Lordship with our opinion upon the following points

(1.) Whether, under the Sierra Leone Ordinances of 1857 and 1862, the English law generally, at the date mentioned, was adopted, or only a portion thereof; and if so, what portion?

(2.) Whether, assuming that the civil law of England was to any extent adopted, it was adopted generally or only those parts of it enumerated by Mr. Huggins as relating to the administration of justice?

(3.) Whether the English statute 3 & 4 William IV. c. 27. was in force at Sierra

Leone in whole or in part?

(4.) Whether Her Majesty's Government were justified under the circumstances in concluding the purchase of Mr. Heddle's property on the basis of a possessory title by the vendor; and if not, whether recourse should be had to good the local legislature in order to enact an Ordinance declaring the law of England generally (including the statute 3 & 4 William IV. c. 27.) to be in force in Sierra Leone, or whether it would be better to obtain a special Act validating the proposed purchase of Mr. Heddle's property.

That Mr. Malcolm was to enclose therewith the volumes containing the Sierra Leone vol.1. Ordinances to which Mr. Huggins referred.

We were also honoured, by your direction, with Mr. Malcolm's further letter of the 6th February instant.

In obedience to the commands of the Earl of Carnarvon and of yourself, we have the honour to

That-

Report

1. In our opinion the English law generally, at the date of the passing of the Ordinances of 1857 and 1862, was adopted and applied to Sierra Leone by the above-mentioned Ordinances.

2. We are unable to concur with Mr. Huggins in his construction of the language of those Ordinances.

3. We are further of opinion that the 3 & 4 William IV. c. 27. has been adopted and applied to Sierra Leone.

We do not concur with the construction placed by Mr. Huggins upon the statute; but even if that narrower construction were adopted, the statutes of limitation relate to procedure, and our conclusion would be the same.

▲ 12916.-159. 25.-12'84.

Vol. 3.

2

No circumstances appear to prevent the application of the statute.

The reasoning would equally apply in the case of India; but a statute of limitations (of 21st James), which it was argued was inapplicable on the very same grounds, has been nevertheless held to be capable of application to India.

4. We think Her Majesty's Government may accept the purchase of Mr. Heddle's property on the basis of a good possessory title.

The Right Hon.

Sir Michael Hicks Beach, Bart., M.P.,

&c.

&c.

&e.

We have, &c., (Signed)

JOHN HOLKER. HARDINGE S. GIFFARD.

4171.