of Canada. Sir Wilfrid Laurier, fortified by the opinion of the then Minister of Justice, Sir Allen Aylesworth, refused to consider the question, on the ground that the legislation asked for would be ultra vires of the Dominion Parliament. The subject was again brought forward after the General Election, but Mr. Doherty, Minister of Justice in the Borden Cabinet, also was of opinion that questions concerning the solemnisation of marriage fell under the exclusive jurisdiction of the Provincial Legislatures. Nevertheless, a Bill was introduced in the Federal Parliament by an independent member, and the country seemed committed to a disastrous conflict. Certainly if the Bill had been discussed, as it must have been, not only in Parliament but in the Press and on the platform throughout the Dominion, appeals would have been made to the racial and religious passions of the people which might have been fatal to the peace of Canada. Throughout the French-speaking provinces such a measure would certainly have been regarded as a direct attack upon the most sacred and fundamental of the liberties of Lower Canada, and as a denial of the rights secured to its people by the Quebec Act of 1774. Happily, Mr. Borden was equal to the occasion, and showed himself at once conciliatory and firm. The introduction of a Bill in the Parliament of Ottawa had changed the situation. To allow the country to become involved in an agitation certain to bear bitter fruits of discord and disunion hereafter for the sake of the Bill which, even if it were carried through all its stages, might yet have to be disallowed as unconstitutional, was clearly at once dangerous and futile. Accordingly the Government decided to take the opinion of the Supreme Court of Canada as to whether or not the proposed legislation would be within the jurisdiction of the Federal Parliament. The terms of reference on this point were :

1. (a) Has the Parliament of Canada authority to enact in the whole or in part Bill No. 3 of the first Session of the Twelfth Parliament of Canada, intitled 'An Act to amend the Marriage Act'?

The Bill provides as follows:-1. The Marriage Act, chapter 105 of the Revised Statutes, 1906, is amended by adding thereto the following section 3. Every ceremony or form of marriage heretofore or hereafter performed by any person authorised to perform any ceremony of marriage by the laws of the place where it is performed, and duly performed according to such laws, shall everywhere within Canada be deemed to be a valid marriage, notwithstanding any differences in the religious faith of the persons so married and without regard to the religion of the person performing the ceremony. 2. The rights and duties, as

married people, of the respective persons married as aforesaid, and of the children of such marriage, shall be absolute and complete, and no law or canonical Decree or custom of or in any province of Canada shall have any force or effect to invalidate or qualify any such marriage or any of the rights of the said persons or their children in any manner whatsoever.

(b) If the provisions of the said Bill are not all within the authority of the Parliament of Canada to enact, which, if any, of the provisions are within such authority?

The question here submitted turned upon the interpretation of two clauses in the British North America Act 1867. Section 91 assigns the subject of Marriage and Divorce' to the Dominion Parliament, but Section 92 gives the Provincial Legislatures the exclusive power to legislate with regard to the solemnisation of marriage.' How are these sections to be reconciled? During the argument at the bar it was contended on the one side that the true construction of the Act of 1867 gives all questions relating to the essentials of the contract of marriage-its definition, the capacity of the parties to enter into it, and all the circumstances on which its validity depends-to the Dominion Parliament; while to the Provincial Legislatures are assigned evidential formalities, useful for authenticating the contract-the neglect of which might involve penalties, but would not serve to invalidate the contract. On the other hand, it was contended that out of the general subjectmatter of 'Marriage and Divorce,' given over to the jurisdiction of the Parliament of the Dominion, there had been carved out a distinct and essential part-the solemnisation of marriage '— which was reserved exclusively for the provinces. Certainly it is difficult, for anyone familiar with the circumstances under which the Union effected by the British North America Act was brought about, to believe that the separate provinces ever intended to surrender to the Federal Authority exclusive control over all the essentials of marriage, while reserving to themselves power to regulate the 'frills and trimmings '-the ceremonial accessories of the contract. The British North America Act, as is expressly recognised in the preamble, was in the nature of federal compact, and a compact between provinces differing in race and religion, and it is incredible that it should have been intended to surrender to a new authority anything touching the lives of the people so intimately and so vitally as the control of the law affecting marriage.

Of the five judges before whom the case was argued, four held that the proposed legislation in the Dominion Parliament was ultra vires, and that questions as to what forms of solemnisation

are necessary for a valid marriage can be determined only by the Legislatures of the separate provinces.

The second question submitted to the Supreme Court of Canada ran:

2. Does the law of the Province of Quebec render null and void unless contracted before a Roman Catholic priest a marriage that would otherwise be legally binding, which takes place in such province (a) between persons who are both Roman Catholics, or (b) between persons one of whom only is a Roman Catholic?

It is not easy to see why the second branch of this question was submitted. No one doubts, for instance, that a clergyman of the Church of England is competent in Lower Canada to unite a Catholic and a Protestant in lawful matrimony. The validity of such marriages has never been challenged in the courts of Quebec. Possibly it was desired to have it placed on public record that the lawfulness of such marriages is not affected by the Ne Temere. If so, it was an unnecessary precaution. No one suggests that the civil law of Quebec is affected by the papal Decree. The law of the Catholic Church, as it existed at the time when the civil code of Canada came into force, is incorporated, as far as marriage is concerned, in the civil law of Quebec; but this does not give any legal validity to the provisions of the Ne Temere. This becomes clear when we examine Article 127 of the civil code, which became law the year before the British North America Act was passed. The Article says: The other impediments recognised, according to the different religious persuasions, as resulting from relationship or affinity, or from other causes, remain subject to the rules hitherto followed in the different Churches and religious communities. The right, likewise, of granting dispensations from such impediments appertains, as heretofore, to those who have hitherto enjoyed it.' The word 'hitherto,' referring to a state of things existing in 1866, forbids the inclusion of impediments created or revived at a later date. In other words, it would require a new Act of the Legislature to bring the civil law of Quebec into harmony with the papal Decree. These marriages -mixed marriages contracted without the presence of a parish priest-though since the Ne Temere they are canonically null, were declared on the 17th of June by all five judges of the Supreme Court of Canada to be legally valid.

At this point it may occur to some reader, familiar with the legislation of the Council of Trent, to ask how, if the law of Quebec admits the ecclesiastical impediments which were in force in the Catholic Church in 1866, a mixed marriage celebrated otherwise than in the presence of a priest can possibly

be held to be legal. Admittedly the Decrees of the Council of Trent laid it down that marriages contracted otherwise than in the presence of the parish priest, or a priest deputed by him, or by the Bishop, are null and void. But by what is known as the Benedictine Declaration, originally issued in 1741, it was provided that 'In regard to those marriages which . . . are contracted without the form established by the Council of Trent by Catholics with heretics, wherever a Catholic man marry a heretic woman or a Catholic woman marry a heretic man if, perchance, a marriage of this kind be actually contracted there wherein the Tridentine form has not been observed, or in the future (which may God avert!) should happen to be contracted, his Holiness declares that such a marriage, if no other canonical impediment occur, is to be deemed valid, and that neither of the persons in any way can, under pretext of the said form not having been observed, enter upon a new marriage while the other person is still alive.' This Declaration, which was issued in the first place for the benefit of those places subject to the sway of the Allied Powers in Belgium' and the town of Maestricht, was subsequently extended to the Church of Canada and Quebec, as appears from replies given by Propaganda in 1764. These mixed marriages were, therefore, by virtue of the Benedictine Declaration, exempted from the operation of the Trent Decree, and, as that was the state of things at the time when the civil code of Lower Canada received the force of law in 1866, such marriages are legally valid to this day, as has now been unanimously decided by the Supreme Court of Canada.

It remains to consider the other question submitted to the Canadian judges, 'Does the law of the Province of Quebec render null and void, unless contracted before a Roman Catholic priest, a marriage that would be otherwise legally binding, which takes place in such province, between persons who are both Roman Catholics?' Three of the judges, Sir Louis Davies, Mr. Justice Idington, and Mr. Justice Duff, replied that such marriages are not invalid; the Chief Justice, for stated reasons, declined to answer; Mr. Justice Anglin, while agreeing with the position taken up by the Chief Justice, Sir Charles Fitzpatrick, felt that out of respect for his three colleagues he ought to give his decision-and decided against them. The Chief Justice justified his silence on the ground that as the court was of opinion that the proposed Act of the Federal Parliament was extra vires, there was nothing more in issue. If questions arising out of matters connected with the solemnisation of marriage' are rightly dealt with by the Provincial Legislatures, and not by the Parliament of Canada, the opinion of the Supreme Court becomes

unnecessary and superfluous. If any decision is required, application should be made to the courts of the province concerned. Sir Charles Fitzpatrick further pointed out that in fact a case is now pending before the Court of Review in Montreal in which these very issues are involved. A decision on the part of the Supreme Court of Canada would, therefore, under the circumstances, be a brutum fulmen--a decision in the air. At the same time it would be open to the objection that it would seem to be giving a lead to, and even to be putting pressure upon, the Provincial Court, which yet in the subject-matter is supreme.

Immediately after the decision of the Supreme Court of Canada was known, it was resolved to carry the case at once to the supreme arbitrament of the Judicial Committee of the Privy Council. The importance which all parties in Canada attached to the immediate settlement of these vexed issues may perhaps be measured by the urgency of the steps which were taken to speed the case across the Atlantic. The Supreme Court of Canada gave its decision on the 17th of June last, and on the 22nd of July the case was being argued before the Privy Council in London. The court consisted of the Lord Chancellor, Lord Halsbury, Lord Macnaghten, Lord Atkinson, Lord Shaw of Dunfermline, and the Lord Chief Baron of Ireland. In a brief judgment the Lord Chancellor, announcing the decision of the Committee, declared the Bill to be ultra vires of the Dominion Parliament. The essential words were these: They [their Lordships] consider that the provision in Section 92 conferring on the Provincial Legislature the exclusive power to make laws relating to the solemnisation of marriage in the province, operates by way of exception to the powers conferred as regards marriage by Section 91, and enables the Provincial Legislature to enact conditions as to solemnisation which may affect the validity of the contract.' In regard to the two queries grouped under the second question the Lords of the Privy Council endorsed, in effect, the position taken up by Sir Charles Fitzpatrick, and dismissed them without answer as being in the circumstances unimportant and superfluous.'

The net result is that the marriage law of Lower Canada stands where it did; and we now know there is no power to change it outside the walls of the Legislature of the province. What, in fact, that law is, in one point remains in doubt. We must wait the decision in the case now pending in the Superior Court in Montreal, before we can say with certainty whether a marriage in the Province of Quebec between two Catholics which is solemnised otherwise than in the presence of the parish priest is valid in law or not. If it were proper for the present writer to hazard an opinion, he would confidently predict that the