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C.R. [1912] riage other than between their true and ordinary parishioners. (Declaration of Louis XIII., 1639.)

In 1804 and again in 1821 statutes were passed validating marriages which had been theretofore solemnized before Protestant dissenting ministers and justices of the peace. In each of these Acts it is expressly provided that they shall not extend to any future marriages.

As is very clearly pointed out by Mr. Justice Jetté in Larameé v. Evans, 25 L.C. Jur. 261, the Act of 1827, authorizing clergymen of the Church of Scotland to keep marriage registers and to solemnize marriages, and the subsequent Acts authorizing the ministers of various dissenting bodies to keep registers of baptisms, marriages and burials were all procured, not with a view of affecting the position and rights of the Catholic Church and its clergy and laity, but because of the opinion maintained by Chief Justice Sewell, and generally asserted by the Anglican body that clergymen of that church were alone competent to marry Protestants. The purpose of the legislation would appear to have been to relieve dissenting Protestant bodies from that disability by giving to the ministers of those denominations the legal right to keep registers and to solemnize marriage primarily if not solely for the purposes of their respective congregations.

In 1860 these Acts were consolidated in chapter 20 of the Revised Statutes of Lower Canada. Sections 16 and 17 of that Act are as follows:

16. The Protestant churches or congregations intended in the first section of this Act, are all churches and congregations in communion with the United Church of England and Ireland or with the Church of Scotland, and all regularly ordained priests and ministers of either of the said churches have had and shall have authority validly to solemnize marriage in Lower Canada, and are and shall be subject to all the provisions of this Act. 35 Geo. III., ch. 4; 7 Geo. IV., ch. 2. sec. 2.

17. This Act extends also to the several religious communities and denominations in Lower Canada, mentioned in this section, and to the priests or ministers thereof, who may validly solemnize marriage, and may obtain and

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Judgment of the Supreme Court of Canada.

keep registers under this Act, subject to the provisions of the Acts mentioned with reference to each of them respectively, and to all the requirements, penalties and provisions of this Act, as if the said communities and denominations were named in the first section of this Act.

There follows a list of the various dissenting bodies which had obtained special statutes.

I read these provisions as declaratory of the right of the ministers of the several religious bodies therein named (Anglican, Scotch and Dissenting) to solemnize within the limits of the territory for which they are authorized to keep registers, all marriages (subject to article 63 C.C. and the special limitation in the case of Quakers imposed by 23 Vict. ch. 11) except those which the law by other provisions renders them incompetent to solemnize. This, in my opinion, meets the objection so much insisted on at bar that, if the argument presented by Mr. Mignault should prevail, there would be no provision in the Quebec law for the solemnization of marriages between dissenting Protestants of different religious beliefs or for the marriage of infidels or pagans, or of persons attached to no particular religious denomination.

With matters in this position, the legislature appointed the Commission for the codification of the civil law with instructions to express in the code the existing law. The report of these commissioners upon the portion of the Civil Code which deals with the subject of marriage contains the following passages :

* * *

With the object of preserving to everybody the enjoyment of his own usages and practices according to which the celebration of marriage is entrusted to the ministers of the worship to which he belongs several provisions are inserted in this title which although new in form nevertheless have their source and raison d'être in the spirit, if not in the letter, of our legislation. Since a change such as that operated by the Code Napoleon, which has secularized marriage and has entrusted the celebration of it as well as the keeping of the registers to officers of a purely civil character without any intervention being required on the part of religious authorities, seems in no wise desirable in this country it has become necessary to renounce the idea of establishing here in regard to the formalities of marriage uniform and detailed rules.

C.R. [1912] 1A.C., 27

Judgment of the Supreme Court of Canada. C.R. [1912] The majority of the commissioners thus express their opinion :

The publicity required by the first part of article 128 is with the object of preventing clandestine marriages which are with good reason condemned by every system of law. An Act so important which interests many others besides the parties themselves should not be kept secret and the best method of preventing that happening is to render obligatory the publicity of the celebration. The word "openly" (publiquement) has a certain elasticity which makes it preferable to any other; being susceptible of a greater or less extension it has been employed in order that it may lend itself to the different interpretations which the different churches and religious congregations in the province require to give it according to their customs and usages and the rules which are peculiar to them from which it is desired in no way to derogate. All that has been sought is to prevent clandestine marriages. Thus, those marriages which shall have been celebrated in an open manner and in the place where they are ordinarily celebrated according to the usages of the church to which the parties belong are reputed to have taken place openly (publiquement).

Taking up the Code and reading it, as it must be read, in the light of the foregoing facts, we find the following provisions which call for consideration in dealing with the question submitted :

128. Marriages must be solemnized openly, by a competent officer recognized by law.

This is the fundamental provision designed to prevent clandestinity.

Of almost equal importance, having the same object, and being the natural sequence of the provisions enacted for the same purpose, regarding the publication of banns, in the church or churches to which the parties belong (articles 130-3 and 57-8 C.C.) is article 63, which says :

63. The marriage is solemnized at the place of the domicile of one or other of the parties. If solemnized elsewhere, the person officiating is obliged to verify and ascertain the identity of the parties.

The latter sentence obviously provides for such exceptional cases as those of persons having no fixed residence (vagi) or no residence in the province. The form in which the article is expressed would bè inexplicable if it were not thereby intended to prescribe that as a general rule marriage must take place at the domicile of one of the parties..

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I see no reason why this provision should not apply to Protestants as well as Catholics. The policy which underlies it so requires.

"Domicile" in this article means place of residence, McMullen v. Wadsworth, 14 App. Cas. 631, at p. 636, and, in the case of Catholics, and probably of Anglicans, who have parochial organization, it means the parish in which the parties, or one of them resides. In the case of a person belonging to a religious body having neither parochial organization nor its equivalent, or of a person belonging to no church, domicile would probably mean the municipality in which he resides. The Catholic parish in Quebec is legally recognized. See R.S.Q., 1909, arts. 4296 et seq. It is in the parish church, private chapel, or mission, and for the territory attached to it that the registers are kept (article 42 C.C.) It is the proper curé of the parties i.e., the parish priest, who is authorized to solemnize the marriage. It is at the church and within the territory for which he is authorized to keep registers that he is empowered to officiate. While in country places the parish and the municipality are coterminous, such cities as Montreal and Quebec are divided into many parishes of which the territorial limits åre well defined, and only within them is the curê authorized to discharge his functions and to exercise his rights as parish priest. Every consideration points to his parish being for the purpose of article 63 the domicile of the Catholic at all events.

Publication of banns in the church to which the parties belong, marriage at the domicile and solemnization by a competent officer are the great safe-guards provided by the Code against clandestinity. In all countries where the civil law prevails, territorial limitation of the jurisdiction to solemnize marriage appears to have been established for

Judgment of the Supreme Court of Canada.

C.R. [1912] that purpose a policy inspired, no doubt, by the Tridentine Decree.

To further ensure obedience to the legal prohibitions in respect to consanguinity, pre-contract and minority, the non-observance of which clandestinity too often serves to cloak, the Code has provided (articles 136 et seq.) for formal oppositions being made to marriages by interested persons. The efficacy of these provisions depends upon the restrictions imposed as to the place, time and publicity of solemnization by the articles to which allusion has just been made. Article 1107 of the Code of Cicil Procedure, which must be read with the provisions of the Civil Code (article 144 C.C.) requires that the opposition shall be served "upon the functionary called upon to solemnize the marriage," and article 61 C.C. directs that the disallowance of an opposition shall be notified to the officer charged with the solemnization of the marriage." (See also article 1109 C.P.Q.) By article 65 C.C. the "Act of Marriage" which the celebrant is required to prepare and sign, must inter alia state "that there has been no opposition or that any opposition has been disallowed." These provisions accord only with the view that in the ordinary case and as a general rule there must be some one, or at most two defined and ascertainable functionaries charged with the celebration of a marriage and that the jurisdiction of the competent officer mentioned in article 128 is necessarily territorially restricted as indicated in article 63; and that is the only logical outcome of the provisions of articles 130 et seq. The purpose of such provisions and their efficacy to attain the object sought by the Legislature the prevention of clandestine marriages, incestuous marriages, bigamous marriages and marriages between minors without the consent of parentsare well stated by Mr. Justice Lemieux in Durocher v.