By HIS HONOUR JUDGE SWANSON.

Mr. Justice Astbury has just decided the interesting point whether under the English law the marriage of a man with his deceased wife's niece, that is the daughter of his deceased wife's brother, is lawful, in the negative. Notwithstanding the Marriage Act, ch. 105 of the Revised Statutes of Canada, 1906, this decision correctly sets forth the present law in Canada. The Canadian Act is comprised within a few lines. Section 1 gives the Act its name, "The Marriage Act," and sec. 2 says: "A marriage is not invalid merely because the woman is a sister of a deceased wife of the man, or a daughter of a sister of a deceased wife of the man." Section 2 has a very mild apologetic look to it, as if the Canadian Parliament were a little fearful about coming out in the open and declaring bluntly as the English Act does that a past or a future marriage of a man with his deceased wife's sister is validated. The Canadian Legislature has always stepped very softly on the glass-strewn dyke of the marriage law. In its haste in dealing with a vexed question impugning the Levitical law a "casus omissus" has occurred. No provision has been made to validate the marriage of a man with the daughter of a brother of his deceased wife, nor of a woman with her deceased husband's brother. The latter omission should stimulate the activities of the Women's organizations of the

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day to see that woman's rights are not unduly invaded by man. There can be no logical reason for denying to woman the same rights and privileges as men possess of doing right (or wrong) as the case may be.

Marriage of a man with the daughter of his deceased wife's brother, or with his deceased wife's sister are within the prohibited degrees set forth in Archbishop Parker's table of affinity, published in 1563, which was made part of the Canon Law by Canon 99 of the year 1603. By the Statute of Precontracts (the unrepealed portion of 32 Henry VIII., ch. 38) which incorporated the prohibited degree set out in 28 Henry VIII., ch. 7, and of the 99th Canon, the table compiled by Archbishop Parker is a portion of the Statute law of the Realm, and binding on both Clergy and laity. See the decision of the Privy Council in Sherwood v. Bay, also of the House of Lords in Brook v. Brook. Vice-Chancellor Esten held in Hodgins v. McNeil that the statutes, the English Marriage Act, George II., ch. 33 (Lord Hardwicke's Act), 28 Henry VIII., ch. 7, also 32 Henry VIII., ch. 38, so far as they remained in force, and so much of the Canon law as had been adopted by the law of England, was introduced into Ontario (Upper Canada) by virtue of the Act 32 George III., ch. 1 (the Constitutional Act). See also judgment of Sir John Beverley Robinson, C.J., in Reg. v. Roblin, also judgment of Chief Justice Armour, C.J.O., in O'Connor v. Kennedy."

3

2

Archbishop Parker's table is inserted in the Book of Common Prayer.

For the benefit of those brothers of our profession who read their Halsbury more diligently than their Prayer Book, I might add that this table is set forth in Halsbury, vol. 16, pp. 283, 284, in foot-note "G." The text writer states at the conclusion of this foot-note:

"It may be noted that marriage with the daughter of a deceased wife has not been legalized, nor has marriage with a deceased husband's brother." The first of the above propositions has now been decided by Mr. Justice Astbury. The report of the learned judge is just to hand and is found, 1919, vol. 1 Chancery, page 128. It was argued with a good deal of reason from the merely ethical, if not the purely legal, point of view that by the Deceased Wife's Sister's Marriage Act of 1907, a deceased wife's sister is removed from the prohibited degrees, and "a fortiori" her sister's daughter, who is one degree further off, is removed by implication, that it cannot have been intended to make a wife's sister marriageable, and leave her daughter unmarriageable, and that by parity of reason a wife's brother's daughter, being in the same degree as her sister's daughter, is now marriageable. Astbury, J., however, refused to accede to this argument. He held that the Act of 1907 did not alter the prohibited degrees generally. It merely removed one of them. In the present case the marriage was not by a widower with his deceased wife's sister's daughter, but with her brother's daughter, and as he was unable to find anything in the 1907 Act to validate such a marriage he therefore held it was void. In this he followed Reg. v. Brighton Inhabitants," in which it was held that the marriage of a man with his deceased wife's half-sister's daughter was null and void (not voidable) by the Marriage Act, 1835, Lord Chief Justice Sir Alexander Cockburn stating: "It is a case which depends upon the question whether a marriage with the niece of a deceased wife is or is not valid; and I now state, as the united opinion of the Court, that such a marriage is not lawful. In Ellerton v. Gastrell, the Court was of the opinion that a marriage with the daughter of a wife's sister was within the degrees prohibited by the Levitical law. Then we have the Marriage Act, 1835, which by sec. 2 enacts:

1 B. & S. 447. 458.

1 Com. 318.

“that all marriages which shall hereafter be celebrated between persons within the prohibited degrees of consanguinity or affinity shall be (not merely voidable but) absolutely null and void to all intents and purposes whatever." We must consider that Act to have been passed with reference to the known and ascertained state of the law in the Ecclesiastical Courts, and as laid down by the Court in Ellerton v. Gastrell, and consequently we have that law sanctioned and confirmed by an Act of Parliament. The result is that the Marriage Act (Canada), ch. 105, does not, to adopt the language of Mr. Justice Astbury, "alter the prohibited degrees generally." It merely removes two of them. In other words a marriage of a widower with the daughter of his deceased wife's brother is still null and void in Canada, as is also the marriage of a widow with her deceased husband's brother. We all know that the difficulties which stand in the way of modernizing the law in these matters in Canada are largely due to the religious scruples of a large body of our people. We must respect the sincere views. of all classes of our people, and not needlessly fly in the face of them. However, with all due respect to such views it does seem to me that it is surely time for Parliament to seriously grapple with these grave problems, which must perforce include the question of the establishment by parliament of Divorce Courts for the different provinces. The B. N. A. Act apportions to the Dominion legislation on "Marriage and Divorce,' under sec. 91, sub-sec. 26, reserving to the provinces only the matter of "Solemnization of Marriage," under sec. 92, sub-sec. 12. Since this article has been in course of preparation I have just read in the daily press that a member of our profession, Mr. W. F. Nickle, K.C., who holds a seat in the House of Commons for Kingston, has given notice of the introduction of a Bill dealing with the creation of Divorce Courts in Canada. This measure is, I think, a timely one, which should receive the serious consideration of not only the House

but of the public at large, and in particular of members of the legal profession, who will have to do so largely with the conduct of business before these Courts if established. It is not likely that such a bill can go through a mixed Assembly such as the Parliament of Canada, representative of different races and creeds, without some preliminary educational work.

The introduction of such a Bill will naturally focus the serious attention of the people at large upon it, and no doubt due time will be given for careful attention and study of the question in all its phases. It certainly looks like an anachronism for a province like British Columbia, comprising a population which we fondly believe to be an up-to-date body of people thinking along the most modern of lines, to have to invoke the English statute law passed by the Imperial Parliament in 1857 (Divorce and Matrimonial Causes Act) as the law governing this subject in force to-day in B.C.8

This Act, sec. 8, says that the Lord Chancellor, the Lord Chief Justice of the Court of Q.B., the Lord C. J. of the Court of Common Pleas, the Lord Chief Baron of the Court of Exchequer, the senor puisne judge in each of the three mentioned Courts, and the judge of Her Majesty's Court of Probate shall be the judges of the said Court, that is the Court for Divorce and Matrimonial Causes constituted by this Act. Section 12.The Court shall hold its sittings at such place or places in London or Middlesex or elsewhere as Her Majesty in Council shall from time to time appoint. Section 13.-The Lord Chancellor shall direct a seal for the Court, etc., etc., to be made. Section 55.-Appeal from the Judge Ordinary is provided for to the Full Court, and sec. 56 provides for an appeal to the House of Lords, etc., etc. One can therefore understand that such a well-known constitutional lawyer as Mr. Justice Clement should use the following language

It is true, however, that the procedure in divorce matters in B.C. is now regulated by "Divorce Rules" promulgated by the judges of the Supreme Court of B.C.