Page images

find in the personality of the state and its sense of obligation to the dictates of the universal conscience a sufficient sanction resting on national self-respect. But study and reflection force us to the conclusion that the conscience of incorporated human nature, to use Mr. Spencer's phrase, is appreciably lower than that of the average constituent individual. Do great statesmen and diplomats, in whose keeping is the peace of nations, exhibit more patience and self-restraint than private individuals do under similar circumstances ? A senator, who would scorn to do an unworthy act for his sole private benefit, will not hesitate to divide with the majority of the chamber the odium justly attaching to an infamous logrolling job. The public is a quasi-corporation, and as such has no soul to be damned. The state's lack of complete personality with fine and delicate sentiment makes it the victim of the tax-dodger, who is often a model of private virtue, but who does not scruple to commit perjury, when necessary, if only the exaction of the revenue officer can be evaded. Nations, whose diplomacy is characterized by the extravagance of chivalry when dealing with equals or superiors, are seen to bluster and brag and play the bully when treating with weak and bankrupt states. Insincerity, jealousy, envy, arrogance, servility, and almost every low quality of mind and heart, distinguish the conduct of organized governments. It is vain, then, to look for a sufficient sanction of international law in the self-respect of individual states.

History shows how great is the field of arbitration in spite of necessary limitations. How long and how often has the possession of the Rhineland been disputed by nations in arms! And yet how simple it often is to delimit territory by peaceful means! Every part of our northern boundary has been in dispute between England and the United States, and yet peaceful negotiation and calm discussion have kept these great nations from war. The treaty of Washington in 1871 made an epoch in the history of the law of nations by submitting to arbitration all matters in dispute between England and the United States. History, traditions, aspirations, they had in common, together with language, law, and faith, presenting a unique opportunity, which, happily, was made available to advance the cause of humanity and civilization by action so momentous as to arrest and hold the attention of the world.

Can another step forward be now taken by these great AngloSaxon states? Can we provide by treaty, in advance of any international difference, the machinery for its peaceful settlement, not

by the clash of arms, but by the arbitrament of reason? Such a step should be encouraged as a step in the right direction. If the treaty thus proposed is a perfect work, and needs no amendment or supplementary attention, then, indeed, it will differ from all the other works of man, which are full of mistakes. We have doubtless much to learn from the experiences which are soon to follow; and the future will have problems of its own, as we have ours now. Other nations may scorn our counsel, and ridicule our propositions as Utopian; but cannot America and England now give an objectlesson to the world of Anglo-Saxon states, finding in reason a better means than war as a solvent of international problems? For they have learned much, not only from the platitudes of philosophers and in the stress of revolution, but through the slow unfolding of true civilization during several generations in the history of the English-speaking race.




(Read Thursday morning, September 1.]

The intercourse between nations and their proximity to one another must inevitably give rise to conflicts of interests. Some of the controversies resulting therefrom are of a national character, involving the claims which one State may have against another State, and which are settled either by force of arms or by friendly arbitrament. You have at the present moment instances of both of these methods of dealing with international disputes in the war which has so recently come to an end and in the peaceful conference which is just beginning its sittings in Quebec. But side by side with these larger questions of public interest there are numerous and important private controversies resulting from the neighborhood and intercourse of nations. The rights and obligations of individual citizens of adjacent States cannot but be affected by the differences between the laws and institutions of these States. Fortunately, the adjustment of these private controversies is invariably effected by peaceable means. It is the courts of the country where the dispute arises which determine the question at issue; and, in so doing, they apply a body of rules which are generally known as Private International Law in contradistinction to the rules of Public International Law, which regulate controversies between nation and nation. The scope of Private Inter national Law is, of course, coextensive with the whole corpus juris ; that is to say, there may be conflicts between the laws of different countries on some portion at least of every branch of the civil law. I purpose, in response to the invitation with which you have honored me, to examine very briefly indeed a few of the most striking examples of the application of these rules by the tribunals of Canada to an important branch of the civil law,- marriage and divorce,- in so far as the decisions of Canadian courts illustrate the conflicts between your laws and ours upon this subject. You

will readily understand what opportunities for legal complications are afforded by the fact that each one of the States of your Union has legislative powers of its own as to marriage and divorce. The marriage knot is tied in different ways, and untied for different reasons, and with varying degrees of celerity and completeness. Then the effects of marriage on the person and property of the consorts also differ in many respects. The law of most of your States on the subject is of course derived from the common law of England, but supervening legislation has profoundly modified the rôles of the consorts in the conjugal union. The popular statement of the old common law doctrine that "in law a husband and wife are one person, and the husband is that person,” would be very far from representing the actual condition of the law in any of your States; but the emancipation of the wife from the power of her husband is more or less complete in different States. Again, in Louisiana, you will find the matrimonial status to be principally based on the old law of France, while here and there the Spanish law has also left its mark. Turning now to the Dominion of Canada, we are presented with a somewhat similar condition of things; for, although by our constitution the subject of marriage and divorce (excepting the celebration of the marriage) is assigned to the exclusive legislative jurisdiction of the Dominion Parliament, that body has up to the present time passed no legislation on the subject, with the exception of a deceased wife's sister's bill, so that each province retains, in all other respects, its own law as it existed at the time of Confederation, and also possesses exclusive legislative powers as to the form of celebrating marriages. In the Province of Quebec we find the old French law almost intact as it existed at the time of the cession of Canada to Great Britain ; and, unless expressly excluded by marriage covenants, community of property will result from the union, and the husband will, as the head of the community, exercise very wide powers of disposal over such property. Again, by that law, the wife is still under a kind of tutelage, requiring the authority of her husband (or of the court on his refusal) in order to dispose of her own private property. In the other provinces of Canada the substratum of the matrimonial law is English, and has likewise been modified by legislation in the same direction as your law, but not everywhere to the same extent.

In regard to divorce the condition of the law in the Dominion of Canada is somewhat anomalous. The Federal Parliament has not

yet exercised its undoubted power of legislation upon the subject; and, consequently, each province remains in the position in which it was at the time of the passing of the British North America Act in 1867. In Ontario, Quebec, Manitoba, and the North-west Territories no divorce courts exist; and divorces are obtainable only by special private acts of the Parliament of Canada. In Nova Scotia, New Brunswick, and Prince Edward Island the statutes which were in force at the time of the Union, and which have never been repealed, conferred upon certain special courts the power of pronouncing decrees of divorce ; while in British Columbia similar powers have been assumed under an ordinance passed by the legislature of that province in 1867, but grave doubts have been expressed as to the validity of decrees pronounced by the courts under that authority.

In view of this great diversity of legislation in your various States, and in our several provinces, and of the constant and everincreasing intercourse between the two countries, it is not surpris ing that complications should be frequent and often embarrassing.

Before entering into a brief examination of the leading cases which illustrate these difficulties, let me remind you of the guiding principles which are followed by our tribunals in determining controversies of this kind. The fundamental principle of Private International Law, as understood in Canada, is that Canadian courts will recognize and enforce rights duly acquired under the law of a foreign country. In other words, the science is based upon the extra-territorial recognition of rights. I need not dwell upon the necessity and justice of this cardinal rule. When a marriage has been contracted in one of your States between persons domiciled there, it would obviously be unfair in the highest degree to test the validity of such marriage, or the incidental effects thereof upon the person or the property of the consorts, by reference to the law of any one of our provinces in which the controversy might acci dentally arise. For instance, if litigation should take place in Quebec involving the proprietary rights of consorts married and domiciled in New York, it would be manifestly unjust to regard their marriage as the legal equivalent of a Quebec marriage, carrying with it community of property and the control of the husband over the wife's share. Accordingly, in such cases, our courts will invariably apply the foreign law under which the legal relation arose, and enforce the rights acquired and the obligations contracted under that system. And this recognition by our courts is

« PreviousContinue »