entirely unaffected by the question as to whether your courts would under similar circumstances recognize the applicability of our law. It is not based on any supposed comity between the two nations, but is accorded as a matter of right, upon the theory that justice could not otherwise be done to the parties.

There is, however, a well-recognized exception to this general rule. Our courts will not recognize or enforce a foreign law or custom, when it conflicts with our public policy. We shall have occasion to discuss the application of this exception in regard to both marriage and divorce.

With these preliminary observations, let me now invite your attention to some of the cases which illustrate the application of the general rules I have endeavored to explain.

The first question which naturally presents itself in regard to marriages celebrated in a foreign country is as to their formal validity. Many forms prevail in the various States of your Union and in the provinces of our Dominion. In some places the marriage may be celebrated by a justice of the peace, a registrar, or a judge, in others the ceremony can only take place before a priest or other minister of religion. Again, in some districts, the intervention of a civil or religious functionary does not appear to be indispensable to the constitution of a valid marriage; and in the less civilized portions of your country, as well as of our Dominion, the unceremonious unions between white men and savage women would seem to require nothing more than the propitiation of the bride's parents with presents of money or merchandise.

The rule which is almost universally adopted, and which is followed by our courts, is that, if the marriage is valid by the law of the place of celebration, it is valid everywhere, and that, if it does not comply with the requirements of the local form, it is not valid.

The first part of the rule is illustrated by the Languedoc case, decided by the Court of Appeal of Lower Canada (now the Province of Quebec) in 1858. The consorts were both domiciled in Lower Canada, and the bride was a minor. Without consulting her guardian, the young lady ran away with her intended; and the pair went to Champlain, N.Y., where they were united in marriage before a justice of the peace. They subsequently returned to

their domicile, and about a month later were again united in marriage, but this time by the priest of their parish. In the litigation which arose the question to be decided was as to which of these

*8 Lower Canada Reports, 257.

two marriages should prevail; and the importance of deciding this question arose from the fact that the first marriage had not been preceded by marriage covenants, while the second had. The validity of the runaway marriage could undoubtedly have been impeached by the guardian whose authority had been disregarded by his ward; but, as the guardian supported instead of attacking that marriage, nothing turned upon the young lady's minority. The only question was as to the formal validity of the marriage celebrated in Champlain before a justice of the peace. The consorts were both Roman Catholic; and, if the marriage had been celebrated in Lower Canada, it could undoubtedly not have been performed by a justice of the peace, the proper officer being the priest of the parish. But it was very properly held that the marriage, having been validly celebrated according to the law of New York, should be deemed good in Canada.

The next case to which I shall refer carries us back to the days of slavery, and it illustrates the converse principle that a marriage which is not binding at the place of celebration will not be recognized by our courts.*

John Harris was a slave in Richmond, Va., and in 1825 was married to Sarah Hollaway, also a slave. The ceremony was performed by a Baptist minister, in the same way as an ordinary marriage, except that no license had been obtained. The evidence showed that by the law of Virginia at that time slaves were incapable of entering into the civil contract of marriage. A license was essential to legal matrimony, and no license could be issued to a slave. It was further testified that the so-called marriages of slaves, and the children of such marriages, were not recognized by the law of Virginia, and in no manner affected the relations of master and slave. Harris escaped in 1832 to New York, changed his name to George Johnstone, and married another woman in that city. In 1834 he went to Toronto, where he died, after having acquired real estate there, under his assumed name. Sarah, his first wife, never escaped from slavery, having died in Richmond before the fall of that city. It would appear that she also contracted a second marriage in Richmond after the escape of John Harris.

Upon the death of this much-married pair, their eldest son set up a claim to the Canadian land, as heir-at-law to his parents; and the question of the validity of the slave marriage in Richmond was * Harris v. Cooper, 31 Upper Canada Q. B. Rep. 182.

distinctly raised in the suit which he brought in ejectment against the holders. In support of that marriage it was urged that the consorts had done all that was in their power in the country of their marriage to make it a valid one, and that our courts should not recognize incapacity to marry on the ground of slavery, which was contrary to the public policy of a British colony. Notwithstanding these considerations the Upper Canadian judges held that the validity of the marriage must be tested by the law of Virginia, where it was celebrated, and that under that law there was no marriage and no legitimate issue. You will observe that in reality there was something more than a mere question of form at issue in this case; for apart from the absence of a marriage license, which was required to make the union valid as to its form, there was a radical impossibility of celebrating a legal marriage in Virginia between the parties on account of their condition as slaves. In fact, the license was not obtainable by them simply because they were slaves and had no capacity to contract a legal marriage.

Looking at the case from this point of view, it may be doubted whether the Canadian court by admitting a want of capacity resulting solely from the institution of slavery did not, in fact, recognize and give effect to a status which was then, as it is now, repugnant to the public policy of the British Empire. There is, however, another way of looking at the question which may justify the courts in declining to admit the validity of slave marriages. In order that a marriage should be entitled to recognition as such, it must possess the essential characteristics of the marriage known to our law it must involve the ideas of a permanency and exclusiveness. Now the marriages among slaves in Virginia and other Southern States do not appear to have possessed these characteristics. They were contracted with the knowledge that they could be dissolved at the will of the master of either of the spouses; and the ordinary relations between the consorts, such as the obligation of the wife to follow her husband and to reside with him, were, of course, incompatible with the position of master and slave. Accordingly, it does not seem unreasonable to say that these unions were not according to the understanding of the parties themselves, any more than by the custom and law of the land, regarded as marriages in our sense of the word. And in the present case, as in many others, the consorts were no sooner separated de facto than they proceeded to contract fresh matrimonial ties.

The same difficulty lies in the way of recognizing the so-called "Indian marriages," contracted in some part of your Western Territories and of our own North-west. Our earlier jurisprudence shows a tendency to regard these unions as equivalent to legal marriages when they are celebrated according to the customs of the tribe, in a place where there are no ministers of religion or officers of civil status. But, as in the case of slave marriages, there is more than a mere matter of form involved here; and it is really the substantive validity of these so-called marriages which is in question. For among most of these Indian tribes polygamy prevailed, and the husband exercised the right of repudiation at will. And as the plurality of wives, and the right to dissolve the union at the will of the consorts, or one of them, are entirely inconsistent with our ideas of marriage, our judges are constrained to look upon these unions as being wholly different from the relation which we call marriage.

Passing now to the effect of the marriage on the property of the consorts, there is of course no difficulty when they have settled their rights by marriage covenants. The express contract thus entered into will govern the rights of Americans, not only in their own country, but whenever they cross our border. If there be no express contract, the principle is well settled with us that the consorts are deemed to have adopted the law of their matrimonial domicile for the regulation of their property rights; and this tacit contract will remain in force throughout all subsequent changes of domicile. Thus our courts have frequently held that persons whose domicile at the time of their marriage was in New York or in Vermont, and who had executed no marriage covenants, remained separate as to property under the laws of those States, even after their permanent removal to the Province of Quebec, no community of property resulting from their change of domicile. And even real estate acquired after this change would be held separately, and would not fall into community. Our courts thus give the fullest force and effect to the matrimonial régime once fully established under a foreign system, and do not allow the tacit contract, any more than an express agreement, to be affected by any change of domicile; for that would be giving one of the consorts the power to change the marriage contract and refusing it to the other, the wife's domicile being that of her husband, and any change of that domicile being controlled by him. In this, I am aware, the view taken by our courts differs from that which has obtained currency in the

United States. Your courts and your leading writers appear to hold that a change of domicile implies an intention to submit as to future acquisitions to the law of the new domicile. So that, in the case above mentioned of domiciled New Yorkers removing permanently to the Province of Quebec, we should be led to the curious paradox that the courts of Quebec would regard them as being separated as to property under the laws of New York, their former domicile, while at the very same time the courts of New York would consider them as being common as to property under the laws of their new domicile. And the amusing irony of the situation would be that, by going from a State where the legal emancipation of a married woman is all but complete to a province which still retains the old ideas of marital authority, the lady would actually be more free from her husband's control in Quebec than in New York in regard to all the property acquired after the change of domicile.

An interesting case has recently presented itself before the courts of Quebec.* The consorts were married in Vermont, where they were domiciled at the time and for many years afterward. They subsequently removed their domicile to the Province of Quebec, where the husband amassed a considerable fortune in business. Up to the time of their change of domicile the consorts possessed no property of any account. After they had come to Canada, the husband made considerable gifts to his wife, buying real estate in her name and paying her from time to time considerable sums of money. These donations would have been perfectly good by the law of Vermont; but they were challenged as being invalid under the law of Quebec, which prevents husband and wife from conferring benefits upon each other after the marriage and during their lifetime except by way of insurance. This strict prohibition existed in the Roman law, and was intended to preserve the purity and disinterested character of the marriage tie by preventing one consort from acquiring the property of the other by the abuse of authority or of conjugal affection. It was preserved in the old French law, partly, it would seem, from the same motive, and partly also because of the desire to prevent the possessions of one spouse from passing into another family by marriage.

However that may be, the disability still exists in Quebec, where no post-nuptial arrangements or gifts are allowed. The Superior Court held that the consorts had preserved their matrimonial

* Eddy v. Eddy, 4 Revue de Jurisprudence, 78.