CO885-(10-11) — Page 785

580.

PUBLIC RECORD OFFICE

Reference :-

mmimmimC.O. 885

11 PUBLIC RECORD OFFICE, LONDON

ALLY WITHOUT PERMISSION OF THE BE REPRODUCED PHOTOGRAPHIC- COPYRIGHT PHOTOGRAPH-NOT TO

No. 624.

(CANADA.)

LAW OFFICERS to COLONIAL OFFICE.

MY LORD,

Temple, January 13, 1870. We are honoured with your Lordship's commands, signified in Sir F. Sandford's letter of the 22nd ultimo, stating that he was directed to transmit to us a copy of a Despatch from the Governor General of the Dominion of Canada, No. 141 of the 2nd December 1869, together with an approved Minute of Council founded on a report of the Minister of Justice, respecting a Bill passed by the Legislature of New Brunswick providing for the issue of marriage licensos by the Lieutenant-Governor of that pro- vince. That this Bill has been reserved for the assent of Sir John Young,

2. Copies of the various Acts and documents referred to in these papers, and also copies of the commission and instructions issued to Lord Monck before the Confedera- tion, and of those issued after the union were also annexed. That in the case of Canada before the Confederation, the clause as to the marriage licenses would be found in the instructions sec. 12., but in the commissions (sec. 19) in the case of Nova Scotia and New Brunswick. That since the Confederation the clause as to marriage licenses has been inserted in the commissions of Lord Monck and Sir J. Young.

3. Sir F. Sandford was pleased to request that we would furnish your Lordship with

our opinion whether it was competeut for the Provincial Legislature to pass this Bill,

and what answer should be returned to the two questions stated by the Canadian Minister of Justice.

The volumes containing the Acts referred to were also transmitted.

In obedience to your Lordship's commands we have the honour to

Report

That we are disposed to concur with the Canadian Minister of Justice in his view of the first question stated by him, but we are unable to concur in his opinion that the authority to grant marriage licenses is now vested in the Governor General of Canada, and that the power of legislating on the subject of marriage licenses is solely in the Parliament of the Dominion,

It appears to us that the power of legislating upon it is conferred on the Provincial Legislatures by 30 & 31 Vict. c. 3. s. 92.,. under the words "the solemnization of marriage in the province." The phrase "the laws respecting the solemnization of marriages in England" occurs in the preamble of the Marriage Act (4 Geo. 4 c. 76-), an Act which is very likely concerned with matters relating to banns and licenses, and which is therefore a strong authority to show that the same words used in the British North American Act, 1867, were intended to have the same meaning. "Marriage and divorce," which by the 91st section of the same Act are reserved to the Parliament of the Dominion, signify, we think, all matters relating to the status of marriage, between what persons and under what circumstances it shall be created, and (if at all) destroyed. There are many reasons of convenience and sense, why one law as to the status of marriage should exist throughout the Dominion which have no application as regards the uniformity of the procedure, whereby that status is created or evidenced. Con- venience indeed and reason would seem alike in favour of a difference of procedure being allowable in Provinces differing so widely in external and internal circumstances as those of which the Dominion is composed, and of permitting the provinces to settle their own procedure for themselves. And we are of opinion that this permission has been granted to them by the Imperiai Parliament, and that the New Brunswick Legis- lature was competent to pass the Bill in question.

We have, &c.

P

The Right Hon. the Earl Granville, K.G.

&c.

&c.

&c.

(Signed)

R. P. COLLIER.

J. D. COLERIDGE. TRAVERS TWISS.

o 16978,438.

95.—5/86.