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manufactures, there should be one general legislative power capable of dealing with all the important questions which are involved. In Canada we have such power in the Do
minion Parliament. . . . With respect to the two great
subjects of trade and transportation, a new comer from the United States of America comes to a country where under its Constitution power exists to pass efficient laws to guard against the evils which exist in the country he comes from, and he may well be satisfied with the change. This power has been exercised already in important instances such as the Act creating an all powerful Railway Commission, and the Act relating to the investigation of injurious trade combinations. Clear power exists to make such amendments and additions to these Acts as the public interest may from time to time require.” And I may mention in this connection an interesting paper by Professor Leacock of the University of McGill, published among the proceedings of the American Political Science Association of 1900, which brings home to one to how great an extent the framers of the British North America Act, as compared with those of the Constitution of the United States, in fixing the exclusive legislative powers of the federal parliament minimised the disadvantages, in the economic and industrial sphere, which are inseparable from federal government and divided jurisdictions. Then I must mention also the complete jurisdiction over the criminal law and procedure in criminal matters which is vested in the Dominion Parliament, whereas in the United States each State possesses this power, with the result that their criminal laws and procedure differ, and differ widely, in some instances, not only as to what constitutes a crime, but as to the trial of the offender and his punishment. On this subject Mr. Lash says in the address 1 have referred to: “We have not in Canada the scandals and delays and perversions of justice which are constantly in evidence in the States, in connection with criminal trials. Our criminal procedure is prompt and sure. Crime does not go unpunished, and no lynchings, because the power of the law fails, take place. No one can say of Canada as President Taft
felt constrained to say publicly of the United States, ‘I.
grieve for my country to say that the administration of criminal law in all the States of this Union (there may be one or two exceptions) is a disgrace to our civilization. . . . I firmly believe that, if the United States Constitution had granted to the central authoriy exclusive power over criminal law and procedure, Congress would have enacted such laws, applying to the whole country, as would have gone far to obviate the scandals and delays and perversions of justice, and lynchings, and make it impossible for any President of that great nation to utter the lament I have quoted.”
Lastly, I will refer to that Dominion power over marriage and divorce, which has been so much before the minds of the public of late. In the first place that power gives the Federal Parliament jurisdiction to prescribe a general law of marriage. For although the Privy Council in a famous recent decision have held that, under the exclusive power confided to the provincial Legislatures to pass laws in relation to the solemnization of marriage in the province.' legislatures of each province can enact what shall be necessary to contract a valid marriage, if contracted in that province, the Privy Council have by no means held that if a couple find the requirements of their own province uncongenial to their religion or other principles, they cannot go and be married in some other province where the requirements suit them better, and so still contract a perfectly valid and binding marriage, which must be recognised as such throughout the Dominion, provided they comply with any requirements of the Federal marriage law. Then, on the other hand, by having exclusive control over divorce, Canadians are saved from liability to the eccentricities in that regard which characterize some of the States of the Union.
The conclusion of the whole matter, then, I think is this: that while the British North America Act leaves it to the future to settle'such modifications as circumstances may dictate or the will of the people of Canada desire in the form of the relations of this Dominion to Great Britain and the Empire at large, it has provided for her domestic affairs a most wisely devised constitutional system under which Canadians possess all the freedom any people can desire to develop their own national life in their own way; and under which they may live free, contented, and prosperous, while the British name lasts, and continue, after the manner of our ancestors, to fear God, love the brotherhood, and honour the King.
CURRENT NOTES ON INTERNATIONAL LAWS. CH INA's REPUBLIC.
The delay in the recognition of the Chinese Republic appears to be occasioned mainly by the desire of the principal Powers to make the acceptance of loans on somewhat onerous terms by China a condition of recognition. It is not clear what is involved in the soméwhat vague term “recognition.” When used with regard to a new State, which is fighting for its separate existence, the word has a very definite meaning. It imports that, in spite of the rights of the parent State, the l’ower which accords “recognition * will enter into relations with the new State as an international entity. But in the case of an existing State like China, where there has merely taken place a change of Government, the phrase is meaningless. There is no parent State whose rights are in any way affected. China needs no “recognition.” In her case the phrase simply means that the Power which is asked to accord “recognition * is asked to continue friendly relations with China under its new Government. It is not a new State. Of course one State is perfectly entitled to discontinue official relations with another if it pleases. But so long as the established government is struggling to maintain itself, it would be inadmissible for any State whatever to assist those who are seeking to overthrow its rule. Contrary to Hall's opinion, the present writer believes that it is not improper for such a State to intervene in order to support the established government. For the latter represents the organization of the State: and it is this organism, and not the fortuitous population within its territorial limits, which foreign Powers are under a duty to respect. As long, therefore, as the position of the republican government was in any way actively assailed by the imperial forces, foreign nations might properly have intervened to support the latter. But nothing of the kind happened. The success of the new régime was immediate. The former government (in a fashion which must be extremely rare) formally constituted it its successor. “Recognition,” therefore, can do China no good in any legal sense. Intervention to restore the Manchus is evidently impossible, as well as illegal. What is really meant, however, is that the Powers should resume their former diplomatic and consular intercourse with China. Mr. Wu, in his well-drawn-up monograph on the subject, urges that stagnation of trade is the result of the present position. But this is surely rather the outcome of the prevalent uneasiness as to the stability of the Republic and as to its power to guarantee security, than of any informality in the intercourse of the government with foreign powers. Morally, however, the effect of the non-recognition of the new régime is deplorable. It can only be with ulterior motives of self-interest that the nations persist in holding aloof from the established government of a recognized State. It is understood that Brazil has been the first to break through this policy of exclusion: she will, no doubt, reap a reward in the shape of increased trade and good will in the Flowery Land.
“TITAN 10 ” PROBLEMS.
The loss of the Titanic has inevitably produced a consid: erable amount of litigation. The claims, when life claims are taken into consideration, are naturally enormous, and the amount to which the owners can limit their liability (further than it is already limited by the fact of their forming a juristic person) becomes correspondingly important. Consequently, a limitation suit was commenced in the State of New York. In default of such process, the very considerable property of the owners within, and resorting to, that jurisdiction would be liable to execution on a judgment in personam, should such be obtained there or in England. Now limitation of liability is no part of the general maritime law. It rests on the legislation of individual States, and the legislations of New York and of Great Britain regulate it in different ways. Was the limitation, then, to be allowed at all? And if so, was it to be fixed by the law of England or the law of New York? These are very divergent. The English rule at £15 per ton would give the injured parties over £600,000. The United States rule, enacted in 1851, would accord them only the residuum after the collision, i.e., about £20,000 worth of boats and freight.
The petitioners urged that it should be decided according to the lear fori. It is difficult to see the reason for this argument. The lear fori applies to questions of procedure; and it was thought a considerable stretch of the principle when it was applied in the shape of section 4 of the Statute of Frauds so as to render an unwritten contract worthless for purposes of suit in England. As regards the limitation of liability, there is no question of mere procedure. Consequently the contest was really between applying the English rule or none. The Court (United States Court for the Southern District of New York, cor. Holt, J.) was evidently right in holding that to the case of injury inflicted on board a British ship on the high seas by alleged negligent collision with an iceberg, the British legislation applied. The case might have been different had a ship of another nationality been concerned. In that event, the English practice, until altered by legislation, was to disregard the limitation rule as inapplicable. (The Carl Johan, 3 Hagg. Adm. 186). In America, the view appears to have been held at one time that, at any rate upon surrender of the wreck, limitation of liability to the value of wreck and freight could be claimed in any event under the Act of 1851 as declaratory of the general maritime law: and in some cases unlimited liability was only admitted on proof of acts inconsistent with such a surrender. In the case of the Titanic's very old sister, the Atlantic (whose loss made such a sensation in the early seventies), limitation was allowed even in the case of a British steamer wrecked in Nova Scotia, on this sweeping theory of a “general maritime law'” of limitation. (Levinson v. O. S. N. Co., 15 Fed. Cas. 422; cf. Marckwald v. Same, 11 Hun. 462). But in The Scotland (105 U. S. 24), pending since 1866, and decided in 1881 by the Supreme Court of the United States, the theory in this extreme form was exploded. It was declared inapplicable to cases where one flag was alone concerned. However, it was somewhat illogically held to apply where different flags were involved. The same result was thus arrived at as was ultimately obtained in England by legislation. But it is difficult to accept as a “general maritime law,” a rule introduced at a given moment by a municipal statute. It is not here a question of varying interpretations of a supposed common “general maritime law,” but of applying as “general ” law that which is perfectly well known to be particular law, introduced for the purpose of innovation. “The rule exempting shipowners from liability on surrender of the ship and freight does not,” says Holt, J., “ seem ever to have been universally adopted throughout Europe. It is stated as a rule of Maritime law in the Consolato del Mare, but there is no reference to such a rule in the Laws of Oleron or of Wisby, or of the Hanse towns. No such