provisions no “child” under eighteen years of age will be at liberty to engage in labour on the farm. This is awkward because in some districts "children" under eighteen are married and raising families. Possibly they together with the thousands of negro "children," would be barred from active labour on the farms. The amendment is mainly interesting at the present moment as indicating the lengths to whch labour legislation would go, if it should have its way. A special jury in the recent Vancouver sittings of the Supreme Court of British Columbia awarded J. P. Smith, member of the Royal Canadian Mounted Police narcotic squad, $2,000 damages against Rev. Clem Davies, pastor of the Centennial Methodist Church, Victoria, for slander. Mr. Davies, on December 9 last in addressing his congregation, declared that Smith was not only a trafficker in drugs, but a drug fiend himself London advices say that considerable satisfaction is being expressed among the holders of Canadian securities there at the action of the Dominion Government in disallowing the Mineral Taxation Act of Alberta. The title of the Act in question would seem to imply that it was the intention of the Alberta Government to tax only such minerals as might be discovered, but in reality it was an additional land tax, where a person had the right to seek minerals of any kind. If the Alberta Government takes an appeal from the Government's decision, it is thought probable that it will go direct to the Judicial Committee of the Privy Council. In the recent case of Henderson alias Breen v. Breen, reported in (1923)1 Beck, J., enunciated the doctrine that a provincial legislature cannot legislate so as to invalidate a marriage entered into contrary to the rules framed by it with regard to the consent of parents; this expression of opinion by the learned judge was an obiter dictum, but the very fact that he deemed it expedient to pronounce such an opinion shows how indistinct at the present moment is the line of demarcation between the powers of legislation, as to marriage, of the Dominion and the Provinces of Canada. The question arises in a practical form when a provincial legislature is asked to replace restrictions upon the right to marry, for instance, to prohibit the marriage of persons under a certain age, say sixteen or eighteen years, and to declare that failure to comply with the required conditions shall render the marriage ceremony void. The Dominion Parliament having confined its activities to a few sections authorizing marriage with a deceased wife's sister or sister's daughter, or a deceased husband's brother or brother's son, such requests are constantly made by representative bodies of women, and it is a matter of importance to determine whether and to what extent the provincial authorities can comply therewith. The Province of Ontario has gone further in asserting provincial control of the subject. Thus, by amendments to The Marriage Act in 1919, after requiring the consent of parents or guardians to the marriage of a minor under the age of eighteen, it is declared that, with certain exceptions, "such consent shall be deemed an absolutely essential condition precedent to the formation or solemnization of a valid marriage, and the marriage if solemnized without such consent shall be absolutely null and void." How far is legislation of this kind supported by authority? 12 W. W. R. 480. C.B.R.-VOL. II.-25 By section 91 of the B.N.A. Act the parliament of Canada has exclusive legislation over all matters coming within the subject "Marriage,” and by section 92 the provincial legislatures may exclusively make laws in relation to the solemnization of marriage in the provinces. If, therefore, it is possible to affix a correct meaning to the word "solemnization " as used in the statute, it ought to be easy to determine the permitted spheres of activity of the Dominion and provincial legislatures respectively. Reference to the Standard Dictionary tells us that to "solemnize” means to perform as ceremonies or solemn rites, or according to legal forms; "as to solemnize marriage." The Privy Council has told us in Re Marriage Legislation in Canada2 that "solemnization " has the meaning that it ordinarily had in the system of law in the provinces of Canada at the time of Confederation, that is to say, in 1867. What, then, did it mean at that time? From the mass of legislation as to marriage, it may suffice to set out a few specimens, which show clearly what the word ordinarily meant. The Civil Code of Lower Canada laid down as a condition of marriage that the "act" must be signed by the officer who solemn ized the marriage. In Art. 128, it provided that marriage must be solemnized openly, by a competent officer recognized by law. In Upper Canada, 33 Geo. 3, cap. 5, as revised in 1843, section 3 runs in part as follows-" And if no valid objection shall have been made to such intended marriage, when three Sundays have intervened after the publication of the said notice, it shall and may be lawful for the said magistrate to proceed to solemnize the marriage." The Imperial Consular Marriage Act of 1849 in section 9 provides that "Every such marriage shall be solemnized at the British Consulate, with open doors, between the hours of eight and twelve in the forenoon." A glance at Bacon's Abridgement, Edition 1832, shows us that even then there was a well marked difference between the capacity to marry and the ceremony of marriage. Thus, he divides the subject matter of marriage and divorce into, inter alia, the following headings: A-What persons may marry, and particularly within the Levitical degrees? and under this heading the very first thing that is dealt with is the question of consents. The heading "C" begins as follows-" Of the solemnization and ceremonies requisite to a complete marriage; and herein of the 2 [1912] A. C. 880. offence of performing the ceremony without due authority or licence." From this it would appear to be clear that, in Bacon's opinion, the person performing the ceremony was a part of the act of solemnization. The Privy Council, in the case which has just been quoted, seems to have thought so also. The real question involved in that case was whether it was within the legislative power of the Dominion Parliament to enable any person who had authority to perform any ceremony of marriage by the local law, to perform it validly, whatever was the religious faith of those married by him; or, to put it in another way, to which of the contending legislatures, Dominion or provincial, fell the authority to make the officiation of the proper person a condition of the validity of a marriage? The Privy Council held that section 92 of the B.N.A. Act enables provincial legislatures to enact conditions as to solemnization which may affect the validity of the contract, the particular condition before them being the officiation of the proper person. In other words, the Privy Council, Bacon and the statutory provisions just quoted seem to have agreed that the person performing the ceremony was an integral portion of the act of solemnization. It may also be safely premised that the word "solemnization " when used with regard to marriage has not undergone any change of meaning for many centuries, as we find that Murray's dictionary gives as the modern special meaning of the word "the celebration or performance of a marriage," and that in the Prayer Book of 1548 one of the offices is "The Forme of Solemnization of Matrimonie.” It is impossible then to extract anything more from the judgment of the Privy Council that a provincial legislature may, in legislating as to the solemnization of a marriage, legislate to the effect that the marriage must be, or need not be, solemnized by the member of any particular class, but cannot be read as a statement that a provincial legislature could make the consent of parents, or any one else, a condition of the validity of the marriage. They could, if parental consent can be considered part of the solemnization of marriage. They cannot, if it cannot be so considered. The doctrine that parental consent is really a part of the solemnization of marriage has been frequently advanced. Thus, we find the late Professor Lefroy writing in 35 C.L.T., at p. 506, that "parental consent when required is to be considered part of the form or ceremony of marriage," apparently basing his opinion on the words of Cotton, L.J., in Sottomayor v. de Barros, where he says, "In our opinion this consent (that is, of parents) must be considered a part (1877) 3 Prob. Div. C. A. 1. 8 of the ceremony of marriage and not a matter affecting the personal capacity of the parties to contract marriage." Again, in an annotation to the case of Peppiatt v. Peppiatt, Mr. Morine, in criticizing an expression of opinion on the part of Meredith, C.J.C.P., to the effect that provincial legislation requiring consents is ultra vires, seems to adopt Lefroy's opinion. It is quite possible, however, that for certain purposes and within certain domains of law, such consents may be treated as parts of the ceremony, but it does not at all follow, because parental consent may, in deciding what law is to govern the question of the validity of marriage in the domain of private international law, be treated as part of the ceremony, that therefore, for all purposes, including the purpose of construing a statute which seems to bear a plain meaning of its own, consent can be treated as belonging to the ceremony. I would, however, suggest that the words of Cotton, L.J., cannot any longer, even in the domain of private international law, be accepted as finally disposing of the question. The question of whether consents are a matter of form only, a mere part of solemnization, is inextricably mixed up with the contending claims of the lex loci contractus and the lex domicilii to govern the validity of marriage. A slight historical retrospect is necessary for the better understanding of the subject. In Simonin v. Mallac, a case of a marriage in England of domiciled French persons without the consent of the husband's father, Sir Cresswell Cresswell approves without qualification the words of Sir E. Simpson in Scrimshire v. Scrimshire. In that case Sir E. Simpson says "The question being in substance this-whether by the law of this country marriage contracts are not to be deemed good or bad according to the laws of the country in which they are formed, and whether they are not to be construed by that law," and replies to his own question-" These authorities fully shew that all contracts are to be considered according to the laws of the country where they are made, and the practice of civilised countries has been conformable to this doctrine, and by the common consent of nations has been so received." Sir Cresswell Cresswell throughout his judgment shows that he is well aware that there might be a distinction between questions as to form and ceremony of marriage, and questions of capacity to marry, but yet his language is perfectly general. It was upon this principle that the Gretna Green marriages were held valid, although 4 30 D. L. R. 1. (1860) 2 Sw. & Tr. 67. |