REMARKS ON THE LAW RELATING TO MARRIAGE LICENSES, QUEBEC.

By "The British North America Act, 1867," the Dominion Legislature is charged with legislation regulating "Marriage and Divorce" in Canada, while the solemnization of marriage in the Provinces is entrusted to the several local parliaments. Under this authority, the Quebec Legislature, at its last session, passed a bill respecting marriage licenses modifying the present law. This bill will come into force on the 1st July next (1872).

It is to be regretted that the legislation on the law of marriage, and of the solemnization of marriage, should have been divided betwen two distinct legislative bodies. The law of marriage in the Province of Quebec is already confused, by the tacking on of church discipline to the civil law. Instead of uniformity on so important a subject as the law of marriage, which we should seek to secure throughout our confederated states, a conflict of law, such as we see in England, Scotland and Ireland, is likely to be reproduced here.

It will be necessary to refer to the chief points of the law relating to marriage licenses as it now stands, that the alteration under this Quebec Act may be understood.

Under the Civil Code of Lower Canada, §57, unless a minister about to solemnize a marriage has published the banns of marriage himself, he must be furnished with a certificate establishing that the publications of banns required by law have been duly made.

By $58, this certificate must be signed by the person who published the banns.

$59, provides that "The marriage ceremony may, however, be performed without this certificate, if the parties have obtained and produce a dispensation or license from a competent authority authorizing the omission of the publications of banns."

Heretofore "marriage licenses" have been issued by the Governor General as representing the Crown. Our statutory law (35 Geo. 3, c. 4, §4,) as well as the Civil Code L. C., (secs. 59, 127, 134, 157,) recognize the existence of this licensing power, although it does not appear to have been specially enacted in

Lower Canada, as in Upper Canada (see Con: Stat: U. C. cap. 83, §2.) This system is evidently adopted here under the Common Law of England. By this Common Law, as well as by the English Statutory Law, the Crown holds supremacy in civil as well as ecclesiastical matters.*

In England the marriage license system has passed through several phases, and is now adopted under a public system of registration which is required for some time prior to the marriage.

In this Province of Lower Canada (now Quebec) marriage licenses are issued by an officer appointed by the Crown, to any applicant who furnishes a bond of $800 in himself and two sureties, that no legal impediment exists. As the Church of Rome by its discipline does not allow its priests to use Crown license, and only admits the dispensing power of the Bishop of the Diocese, their use has been confered to Protestants, the Church of Rome wisely adopting as its rule the publication of banns.

By Art $130, C. C., the publications of banns is made by the priest, minister or other officer, in the church to which the parties belong, at morning service, or if there be no morning service, at evening service, on three Sundays or holidays, with reasonable intervals. If the parties belong to different churches, these publications take place in each of such churches.

By $131, if the actual domicile of the parties to be married has not been established by a residence of six months at least, the publications must also be made at the place of their last domicile in Lower Canada.

By $132, L. C., if their last domicile be out of Lower Canada, and the publications have not been made there, the officer who in that case solemnizes the marriage, is bound to ascertain that there is no legal impediment between the parties, and

By $133, C. C., if the parties or either of them be, in so far as regards marriage, under the authority of others, the banns must be also published at the place of domicile of those under whose power such parties are.

As the consent of the parties to the marriage, and of those interested therein, is of the essence of the contract, and as the prevention of an illegal marriage is of more importance than the annulling of the same, it will be apparent that the publication of

* Stephens Com: Vol. 2, p. 515, 533; Vol. 3, p. 47,

banns is well adapted to secure this prevention, whereas the license system, according to our law, makes no pretension to publicity, but relies solely on the penalty under the bond, and the penalty on the minister to be hereafter referred to.

By $129, C. C., "All priests, rectors, ministers and other officers authorized by law to keep registers of Acts of Civil Status are competent to solemnize marriage; But none of the officers thus authorized, can be compelled to solemnize a marriage to which any impediment exists according to the doctrine and belief of his religion, and the discipline of the church to which he belongs."

From this clause, it may be inferred that unless there be any impediment through "doctrine," "belief," or discipline, all priests et al. may be compelled to solemnize the marriage of any parties presenting themselves, subject, however, to no impediment having been disclosed, under the publication of banns, the license, or existing to the personal knowledge of the priest or minister.

A refusal would subject the priest to an action for damages or proceedings under mandamus, and then the point as to how far the discipline of the church is subservient to the Civi! Law would arise. This point has not been presented before our Courts.

By Art. §157, C.C., "If the publications required were not made or their omission supplied by means of a dispensation or license, or if the legal or usual intervals for the publications or solemniza tion have not elapsed the officer solemnizing the marriage under such circumstances is liable to a penalty not exceeding five hundred dollars."

By $158, C. C., "The penalty imposed by the preceding article is in like manner incurred by any officer who in the execution of the duty imposed on him, or which he has undertaken, as to the solemnization of a marriage, contravenes the rules prescribed in that respect by the different articles of the present title."

This last article recognizes the solemnization of marriage as "a duty imposed on him," and gives effect to the penalty in case of his contravening the title "on marriage," which embraces every rule in the entire law regulating marriage and its celebration.

This penalty was found to be a terror to Protestant clergyman in the solemnization of marriage. Some, it is true, assumed incorrectly, that the marriage license from the Crown conveyed full authority to celebrate the marriage, and was a guarantee that no

legal impediment did exist. They contended, and with apparent reason, that it was the duty of the issuing officer to ascertain and satisfy the requirement of the law that no legal impediment did exist, and that it only remained for the priest to perform the religious form attending the contract, and that if any penalty were imposed as a security to the public, that this penalty should be imposed on the officer issuing the marriage license.

The Act of the Quebec Legislature provides, §1. "That in so far as regards its solemnization of marriage by Protestant ministers of the Gospel, all marriage licenses shall be issued from the office of the Provincial Secretary under the hand and seal of the Lieutenant Governor, who for the purposes of such licenses, shall be the competent authority under article 59 of the Civil Code."

It might have been correct to say a competent authority, as the Quebec Legislature cannot derogate from the right of the Crown under the Common Law of England to issue a license if it see fit.

§2. Provides: "In so far as regards the solemnization of marriage by Protestant ministers aforesaid, no marriage license issued in any other manner or from any other authority shall be necessary."

§3. Provides that "The licenses issued under this Act shall be furnished by such persons as the Lieutenant Governor in Council shall name for that purpose, to all persons requiring the same, who shall previously have given bond, together with two sureties being householders, and in the form appended to this Act."

The bond is in the sum of $800, on the condition that "if it shall not hereafter appear that they or either of them the said

and- have any lawful let or impediment, pre-contract, affinity or consanguinity to hinder them being joined in holy matrimony and afterwards then living together as man and wife, then this obligation to be void and of none effect, otherwise to be and remain in full force and virtue."

§4: Declares that the fee shall be $8, not more than $2 of which shall be allowed to the issuer, the balance to be paid to the Treasurer of the Province.

§5: Provides that the revenue so raised shall be apportioned among protestant institutions of superior education, by the minister of public instruction, under the authority of the Governor in Council.

By §6: "No minister who has performed any marriage ceremony, under the authority of a license issued under this Act, shall

be subject to any action or liability for damage or otherwise, by reason of there being any legal impediment to the marriage, unless at the time when he performed such ceremony he was aware of the existence of such impediment.”

§7: Provides that the Act shall come into force on the 1st July

1872.

The gist of the Act is thus in the declaration of: 1. Who shall issue licenses for Protestant ministers. 2. That no other license shall be necessary. 3. That the funds derived from the sale of licenses shall be applied to the purposes of superior Protestant education. 4. That ministers using the license shall be relieved from all penalty unless aware at the time of the celebration of the marriage of the existence of an impediment.

Now although this relief from a penalty for the transgression of the law, for which a license affords no means of guarding against, and which license the law obliges ministers to adopt, is reasonable and just so far as the priest or minister is concerned, still a wrong is done to the people by such a law. Thus the most sacred rights of family as to civil status, succession and inheritance, are guaranteed by the security of what? Of the collection of a penalty of $800 under a bond, and of the proof that the priest or minister was aware at the time of the celebration of the marriage that an impediment did exist. However respectable any class of ministers or men may be, such vital interests to citizens of a State should not be so imperilled. Even with the greatest care and in perfect good faith, injustice may be committed. Ministers of religion cannot be supposed to know by intuition that no impediment exists, and the "license" system effectually prevents their ascertaining the facts which they should know and might learn through the publications of banns.

The truth is apparent that the license system is a vicious one as it now exists in Canada.

If the English system of public registration of marriage licenses for some time prior to their use were adopted, some publicity might be obtained, but neither this plan nor any other appears so practical and likely to attain the object sought as the publications of banns in the face of the congregation where the parties interested reside and are known.

Or if the system of licenses be persisted in, then the issuing officer should be charged as a public officer to satisfy himself by evidence taken in a legal manner that no impediment does exist.