“In and for each province the Legislative may exclusively make laws in relation to education, subject and according to the following provisions:
“(1) Nothing in any such Act shall prejudicially affect any right or privilege with respect to denominational schools which any class of persons have by law in the province at the union;
“(2) All the powers, privileges and duties at the union law conferred and imposed in Upper Canada on the separate schools and school trustees of the Queen’s Roman Catholic subjects shall be and the same are hereby extended to the dissentient schools of the Queen’s Protestant and Roman Catholic subjects in Quebec;
“(3) Where in any province a system of separate or dissentient schools exists by law at the union, or is thereafter established by the Legislature of the province, an appeal shall lie to the Governor-General in Council from any Act or decision of any provincial authority affecting any right or privilege of the Protestant or Roman Catholic minority of the Queen’s subjects in relation to education;
“(4) In case any such provincial law as from time to time seems to the Governor-General in Council requisite for the due execution of this section is not made, or in case any decision of the Governor-General in Council on any appeal under this section is not duly executed by the proper provincial authority in that behalf, then and in every such case, and as far only as the circumstances of each case require, the Parliament of Canada may make remedial laws for the due execution of the provisions of this section, and of any decision of the Governor-General in Council under this section.”(91)
Lately there have arisen religious difficulties to which this section has no application. By the Confederation Act (Section 91) the Dominion Parliament has exclusive jurisdiction as to marriage and divorce; jurisdiction which would appear to relate to capacity as to marriage. By Section 92 in each province the legislature may exclusively make laws as to “the solemnisation of marriage in the province,” which would appear to extend to all matters affecting the form and ceremony; a division of powers certain to produce sooner or later conflicts. Recently the _Ne temere_ decree was promulgated in Canada. The effect upon Roman Catholics has been considered in what is known as the Hebert case, the chief facts of which were these: Eugene Hebert and Emma Clouatre, both Roman Catholics, were married by a Protestant clergyman. The marriage was declared null and void by Archbishop Bruchesi. His decision was confirmed by Judge Laurendeau. But on appeal it was reversed by Judge Charbonneau, who held that any officer qualified by the State to marry persons could marry persons of any religious faith; that the _Ne temere_ decree had no legal validity and was binding only upon the consciences of Roman Catholics.