whether Canon Thompson was under an obligation to administer the Holy Communion to the promoters, and that it was incumbent upon him to determine both the points raised for the defence adversely to the defendant before the promoters could succeed. The second point is, as the learned Judge says, "a pure question of construction of the Act of Parliament," and is, we think, one which may be discussed without any special knowledge of Ecclesiastical law. We give in full the first paragraph of sect. 1 of the Act which contains the proviso upon which so much

turns:

No marriage heretofore or hereafter contracted between a man and his deceased wife's sister within the realm or without shall be deemed to have been or shall be void or voidable as a civil contract by reason only of such affinity: Provided always that no clergyman in holy orders of the Church of England shall be liable to any suit, penalty or censure, whether civil or ecclesiastical, for anything done or omitted to be done by him in the performance of the duties of his office, to which suit, penalty or censure, he would not have been liable if this Act had not been passed.

The charge against Canon Thompson was, very definitely, in respect of something "done or omitted to be done by him in the performance of the duties of his office." Sir Lewis Dibdin, in dealing with this branch of the case, assumes, to quote his own words, "that a man domiciled in England "living matrimonially with his sister-in-law was (notwithstanding any marriage ceremony) before the Act, and would "be now but for the Act, an open and notorious evil liver "who ought not to be admitted to Holy Communion." If, before the Act, the promoters were persons "who ought "not to be admitted to Holy Communion," it follows ex necessitate that a clergyman repelling them could not for so doing be liable to "any suit, penalty or censure, whether "civil or ecclesiastical!" Now the proviso, as we have seen, enacts "that no clergyman in holy orders of the Church of "England shall be liable to any suit, penalty or censure, "whether civil or ecclesiastical, for anything done or "omitted to be done by him in the performance of the

"duties of his office, to which suit, penalty or censure, he would "not have been liable if this Act had not been passed." (The italics here as elsewhere are our own.) It seems at first glance difficult to escape the conclusion that Canon Thompson was within the language of the proviso, the charge against him being in respect of something" omitted "to be done by him in the performance of the duties of his "office," and the "suit" of the promoters together with the "penalty or censure" sought to be inflicted, being such as Canon Thompson "would not have been liable" to if the Act had not been passed. This apparently obvious interpretation of the statute is, however, held by the Dean not to be the right one, and in his opinion the general words of the proviso are referable (in his own words) "to the duties "of a clergyman incident to the actual marriage." We give the whole of the paragraph in which this quotation

Occurs:

In my opinion, formed after anxious consideration of the Act, and not without some doubt and hesitation, the general words of the proviso must be limited to the particular purpose of the section, and are referable to the duties of a clergyman incident to the actual marriage.

The following passage from the judgment gives compendiously the process of reasoning by which this result is reached:

The words of the proviso are undoubtedly very wide, but, being a proviso, it must be construed with reference to the clause to which it is appended, i. e., the first part of the section. The subject-matter of the section is marriages contracted between a man and his deceased wife's sister. The proviso under review is followed by two other provisoes, and they both relate to the actual marriage, one dealing with the use of churches for its solemnization, and the other providing for cases where such a marriage has been annulled or has been followed by a lawfu marriage before the passing of the Act. This suggests the inquiry whether the proviso in question can be given a reasonable meaning if restricted in the same way-namely, to the actual marriage and its incidents.

We were for some time in doubt as to the precise meaning intended to be conveyed by the expression "the subjectmatter of the section is marriages contracted between a man

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and his deceased wife's sister." The subject-matter of not only this section, but of the whole Act is marriages so contracted. The Dean adds, "but for the proviso a clergyman "would be under legal obligation to proclaim the banns of a marriage between a man and his deceased wife's sister, to solemnise the marriage, and to register it in the parish register (Agar v. Holdsworth, 2 Lee, 515). The proviso was required, and is efficient to free him from these obliga"tions." We infer from this and other like passages, and from the context generally of the judgment, that the Dean's meaning is that the section in question, and consequently the proviso, are concerned only with the solemnization of the marriage and matters incidental to the ceremony, such as publication of banns and registration.

The gist of the argument is then sufficiently plain. The immunity of the clergyman from liability, secured by the first proviso, is couched in language wide enough to include the case of Canon Thompson, but it must be cut down and confined to matters relating to the actual solemnization of the marriage and its incidents, because the section to which it is appended (so it is argued) is limited to the same subject-matter. This reasoning is obviously dependent for its validity upon the soundness of the construction which so limits the meaning of the section. There is not, so far as we can see, anything in the language of the section which supports the theory that it is dealing only or even primarily with the solemnization of the marriage, or the actual marriage (whichever phrase may be employed) and its incidents. What strikes one rather is, that the section is dealing with the status of the parties to the marriage; with their ability to enter into the contract. The disenabling effect of the existence of affinity in a certain degree between the parties is removed. Whilst, before the Act, parties so related were incapable of entering into the contract of marriage, such disability is now taken

away. There is nothing to indicate that the mind of the Legislature was concerned as to the ceremony of the marriage and its incidents. The Act was required for no such purpose, but merely to remove the disabling effect attaching to the persons by reason of a certain degree of affinity. The wide scope of the section seems singularly inconsistent with the notion that it has in view solely the actual marriage and its incidents. It expressly applies to marriages contracted "heretofore" as well as "hereafter," whether "within the realm or without," but no reference is to be found to the mode of solemnization or to the ceremony. It may be celebrated in accordance with the rites of the Established Church, in a Nonconformist Chapel, at the Office of the Registrar, or in any manner within the realm or without, in which a legal marriage may be solemnized. Assuming, as argued in the judgment, that the proviso must "be construed with reference to the clause to which it is appended,-that is the first part of the section," the difficulty is to discover anything in the latter to restrict its application to the mere solemnization of the marriage and its incidents, apart from the effects and consequences flowing naturally and inevitably from the validation of the union as a legal marriage. Let us re-state the argument which we are endeavouring to combat. The proviso says in substance that no clergyman is to be liable for any act or omission in the performance of the duties of his office for which he would not have been liable had the Act not been passed. The defendant would not have been liable before the Act for repelling from the Holy Communion the promoters, and therefore his case comes-primá facie at any rate-clearly within the express language of the proviso; but, the argument runs, the section itself relates to the actual marriage and its incidents, and the proviso must therefore be restricted in a like manner. The validity of this reasoning may well be tested by the simple

question, How do the promoters become persons eligible at all for reception of the Holy Communion? The answer is, by reason of this section of the Act which validates their marriage previously illegal. The removal of their prior incapacity is due to the operation of the section, there being nothing else in the Act touching the question. So that the enactment, upon which the proviso is to operate, implicitly enables the parties, otherwise disqualified, to receive the Holy Communion, and this is the only source from which they derive the right. This being so, we fail to see upon what ground a proviso which in terms is not limited can be construed as inapplicable to a state of things. arising necessarily out of the enactment to which it is appended. A very forcible argument in support of the view for which we are contending is to be found in the fact that the Act contains no express enactment legitimating the offspring of these marriages, leaving that to follow as the necessary result of validating the union. Had the intention of the Legislature been to restrict the operation of the proviso to "the duties of a clergyman incident to the "actual marriage," as declared by the judgment under review, it is inconceivable that language should have been employed which in the clearest terms professes to leave the clergyman in statu quo so far as "anything done or omitted "to be done by him in the performance of the duties of "his office" is concerned. The construction of the Dean seems to us to require the insertion in the proviso after the word "office" some such words as "in relation to the "solemnization of any such marriage and its incidents." We cannot see that the other two provisoes to sect. I afford much assistance in the interpretation of the section or of the first proviso. Supposing the second and third provisoes to relate, in the exclusive sense contended for, to the actual marriage, a suggestion which we are not prepared to admit so far as the third is concerned, it is not