LIBRARY UNIVERSITY OF cAuro*A SANOtCOO THE MONROE DOCTRINE AND OTHER ADDRESSES. ALFRED A.fsTOpKTON, LL.D., D. C. L. OSK OF IIKR M i.ll -KL; MKMHKK (IK TIIK I.F.lilM.ATI V K ASSEMBLY OK SKW BRUNSWICK FOR TIIK CITY OF ST. JOHN; LECTURER OX COXSTITfTIOXAL LAW IS THK LAW- SCHOOL AT ST. JOHN, N. B., OK THK UNIVERSITY OF KIV,'- lipl.I.l'-.r. WINDSOR, N. 8. AUTHOR OK ADMIRALTY REPORTS AM) DKiEST; EDITOR OF HKRTON'S REI-oiil.- "K I HE SUPBKMK COURT OF SKW l!KlWH K, KTf. Ctmtentpornnra rrpotilio tit optima el furliaima in legt. 2 Inst. II. oHN, N. B. J. A A. M< Mil i vs, 98 PRIKCK WILLIAM STREET. 1898. Entered according to Act of Parliament of Canada, in the year 1898, BY ALFRED A. STOCKTON, LL.D., D. C. L., In the office of the Minister of Agriculture at Ottawa. PREFACE. When the addresses contained in this volume were delivered I had no thought that they would ever he published. They were prepared for special occa- sions ; the subjects were assigned by those asking for their preparation and delivery ; and the articles as now printed are substantially as delivered. Several friends, to whose judgment I have deferred, suggested that it would be advantageous to put these articles in permanent form, and hence this volume. It is notorious that many people, especially in the United States, have hazy and incorrect views as to what the Monroe Doctrine really is, and by whom originated. The hope is expressed that the article on that subject may at least prove useful in stimulating a desire for full and correct information. I trust the reader may find something in the following pages of interest and profit. My thanks are tendered to Mr. Reginald R. Fuirweather, student-at-law, for his kindness in pre- paring the Index. It will facilitate easy reference to the topics discussed. A. A. STOCKTON. ST. JOHN, N. B. 18 Charles Street, February 8, 1898. (iii) CONTENTS. PAGE PREFACE, iii I. THE MONROE DOCTRINE, 1 II. FIFTY YEARS A QUEEN, 76 III. SIXTY YEARS A QUEEN, 90 IV. THE AIM OF LEGISLATION 106 V. THE OBJECT OF LAW, 138 I. TIIK MOXUOK IHKTUINK. \Din:r ii i.i\ i 1:1 D I:I-:K"|;K TIIK KM ri.rv AMI STUDENTS OF mi: i MVKI:>ITV .K M \\ i:ur\-\\ i< K. AT KI:KIM i:i< T\. N. i:.. NOVKMHKI: :,, i.v;. Tin- seventh annual message of President Monroe, delivered 1 >e.-t mber 2, 1823, contained, aiming other things, the following declarations : " At the proposal of the Russian Imperial < ioveriniii-iit, made through the minister of the Kmperor residing here, a full power and in- >tnii-tions have been transmitted to the minister of the I'nited States at St. Petersburg to arrange, liy amii-alile negotiati the respective rights and interests of thf two nations on the north- oast of this continent. A similar proposal had leen made hy his Imperial Majesty to the government of (ireat Britain, which has like- \\ ']-< Keen acceded to. The government of the I'niti-d State- has been desirous, by this friendly }>roceeding, of manifesting the u'reat value which they have invariably attached to the friendship of the Kmperor, and their solicitude to cultivate the best understanding with his government. In the discussions to which this interest has given rise, and in the arrangements by which 2 THE MONROE DOCTRINE. they may terminate, the occasion has been ad- judged proper for asserting, as a principle, in which the rights and interests of the United States are involved, that the American conti- nents, by the free and independent condition which they have assumed and maintain, are henceforth not to be considered as subjects for future colonization, by any European powers." " It was stated at the commencement of the last session that a great eifort was then making in Spain and Portugal to improve the condition of the people of those countries, and that it appeared to be conducted with extraordinary moderation. It need scarcely be remarked that the result has been, so far, very different from what was then anticipated. Of events in that quarter of the globe, with which we have so much intercourse, and from which we derive our origin, we have always been anxious and interested spectators. The citizens of the United States cherish sentiments the most friendly in favor 6f the liberty and happiness of their fel- low men on that side of the Atlantic. In the wars of the European powers, in matters relat- ing to themselves, we have never taken any part, nor does it comport with our policy to do so. It is only when our rights are invaded or seriously menaced that we resent injuries or make preparations for our defence. With the THE MONROE DOCTRIM-. -I movements in this hemisphere we are, of neces- sity, more immediately connected, and by causes which must be obvious to all enlightened and impartial observers. The political system of the allied powers is essentially different in this tv>|.e<;t from that of America. This difference proceeds from that which exists in their respec- tive irovernments. And to the defense of our own, which has been achieved by the loss of so much blood and treasure, and matured by the wisdom of their most enlightened citizens, and under which we have enjoyed unexampled feli- city, this whole nation is devoted. We owe it, therefore, to candor, and to the amicable rela- tions existing between the United States and those powers, to declare that we should coniil< r t//inr(i<>n of this hemisphere as danyerous to our peace and safety. With the existing colonies or , iitlfin-ies of any European />"//-j"'ness; nor can any one believe that our Southern brethren, if left to themselves, would adopt it of their own accord. It is equally impossible, therefore, that we should behold such interposition, in any form, with indifference. If we look to the comparative strength and resources of Spain and these new governments, and their distance from each other, it must be obvious that she can never subdue them. It is still the true policy of the United States to leave the parties to themselves, in the hope that other powers will pursue the same course." The President in the following year 1824 in his annual message, directed attention to the South American difficulties, and the war being waged between Spain and the South American colonies which had thrown off allegiance to the parent state. After adverting to the so called doctrine of the " balance of power," which then so largely entered into the diplomacy of Euro- 6 THE MONROE >OCTRINE. pean States, he said : " The balance of power between them, into whichever scale it may turn in its various vibrations, cannot affect us. It is the interest of the United States to preserve the most friendly relations with every power, und on conditions fair, equal, and applicable to nil. But in regard to our neighbors our situa- tion is different. It is impossible for European governments to interfere in their concerns, especially in those alluded to, which are vital, without affecting us ; indeed, the motive which might induce such interference in the present state of the war between the parties, if a war it may be called, would appear to be equally applicable to us. It is gratifying to know that some of the powers with whom we enjoy a very friendly intercourse, and to whom these views have been communicated, have appeared to acquiesce in them." I have quoted at length from the President's messages, for the purpose of making as clear as possible their scope and object. For nearly three quarters of a century, in the United States, public policy and political action, have on occa- sions appealed to the "Monroe Doctrine" for support and vindication. The message of Pre- sident Cleveland to the Senate of the United States on December 17, 1895, concerning the Venezuelan boundary controversy, has revived THK MIINKOE DOCTRINK. I the inquiry as to what the doctrine really is, ami by whom originally conceived and formu- lated. President Cleveland appeals to tin- authority of the doctrine a> a justification for the United States to intervene, even to the extent of armed force, in a dispute between (Jivat Britain and Venezuela as to the true dividing line between the territories of these nations. The letter of Mr. Olney, the Secretary of State, to tin- American ambassador at Lon- don a copy of which accompanied the Presi- dent's me-.-agt puts forward claims alleged to be founded on this doctrine, which, I venture to think, would startle President Monroe were he alive to read them. To understand intelli- gently what the doctrine really is, we must remember the historical circumstances which called it forth, and the origin and source of its inspiration. Xo public utterance of any public man has received more diverse interpretation, or has been more misunderstood by even the majority of the people of the United States, than President Monroe's message of 1823. It will be noticed three subjects are dwelt upon in the message: (1) No further colonization on the part of a Kuropean power: (2) no exten- sion of the political system of the Allied Powers to the American continents; and (3) no inter- vention on the part of a European power in 8 THE MONROE DOCTRINE. favor of Spain against the South American Republics. The first and second will be re- served for consideration at the close of this paper; the third will be first considered. As to the general subject, I shall endeavor to prove three things in the course of the discus- sion : (1) That the doctrine itself, as enunciated and understood by President Monroe and his Cabinet, owes its origin to British statesman- ship, to the sagacity and enlightened policy of George Canning; (2) that it has never received the formal sanction of the Congress of the United States ; and (3) that it is not a part of international law, binding upon the family of nations. To understand the political events of 1823, we must go back a few years in European history. The fury of the French revolution had spent itself, and the military despotism of the great Xapoleon had succeeded the unbridled license of the French democracy. Xapoleon's soaring ambition urged him forward to the attainment of universal sovereignty. In the attempted accomplishment of that object, the thrones of Europe tottered, their occupants were expelled, and the vacancies filled by suc- cessful generals or relatives of the great con- queror. His career of blood and conquest was stopped by the defeat of Waterloo, and fugitive rulers were thereby restored to their ancestral TIIK MnMinK DOCTRINE. 9 crowns. The events, however, which had hap- pened during Napoleon's career made a pro- found impression upon the crowned heads of Europe. The impression was so great, that the rulers of Continental Europe handed themselves ' her as the "Holy Alliance," for mutual support in the maintenance of absolute govern- ment. From the eventful issue of Waterloo till the deliver}' of President Monroe's message in 1823, the great powers of Europe had held at least five Congresses for settling European affairs: that of Vienna in 1815; Aix-la-Chapelle in 1818; Troppau in 1820; Laybach in 1821; and Verona in 1822. Successive coalitions ot the invat Kuropean powers had previously been formed against France subsequent to the latter"- revolution of 1789. The avowed object of the-e coalitions was to check the progress of revolu- tionary principles and practices, and to curb the extension of her military power. The great powers at first composing the coalition were l(n.ia. Prussia, Austria and Great Bri- tain. Kraii.-e gave in her adhesion and became a party at the Congress of Aix-la-Chapelle in 1818. As stated by Mr. Wheat. .IK' the distin- guished author of International law, "this union was intended to form a perpetual system of inter- vention among the Kuropean States, adapted t<> 1 Wlieaton's Int. I-aw (by Lawrence), p. 120. 10 THE MONROE DOCTRINE. prevent any such change in the internal forms of their respective governments, as might en- danger the existence of the monarchical insti- tutions which had been re-established under the legitimate dynasties of their respective reign- ing houses. This general right of interference was sometimes defined so as to be applicable to every case of popular revolution, where the change in the form of government did not proceed from the voluntary concession of the reigning sovereign, or was not confirmed by his sanction, given under such circumstances- as to remove all doubt of his having freely consented. At other times, it was extended to every revolutionary movement pronounced by these powers to endanger, in its conse- quences, immediate or remote, the social order of Europe, or the particular safety of neighbor- ing States." Daniel Webster, in the House of Representatives in January, 1824, on moving his resolution respecting the revolution then existing in Greece, well summarized the aim of the Holy Alliance when he declared 1 : "The end and scope of this amalgamated policy are neither more nor less than this : to interfere, by force, for any government against any peo- ple who may resist it. Be the state of the people what it may, they shall not rise; be the gov- 1 Webster's Great Speeches by Whipple, p. 65. . THE .MHNKOK nm THINK. 11 eminent wluit it will, it shall not be opposed." Tin- Neapolitan ivvolution in 1820 so pivcipi- tated a Hairs tliat siied their circular to the nations, in which were set forth the principles upon which they were prepared to act. The revolutions in Naples and Piedmont 12 THE MONROE DOCTRINE. were occasions for giving practical eftect to the principles of the allied powers. Both of these revolutions had been put down by for- eign bayonets, and confessedly in opposition to the popular will. The circular declared that " the allied sovereigns could not fail to perceive that there was only one barrier to offer to this devastating torrent. To preserve what is legally established such, as it ought to be, is the invariable principle of their policy. Use- ful or necessary changes in legislation and in the administration of States ought only to emanate from the free will and the intelligent and well-weighed conviction of those whom God has rendered responsible for power." This declaration disclosed in all its nakedness the object of absolutism in the formation of the Holy Alliance. The people of any nation were not to have, and under the correct inter- pretation of such a declaration, could never have any right to reform abuses in govern- ment, either in organization or administration. Any concession granted must come spontane- ously, as a matter of grace, from " those whom God has rendered responsible for power." This doctrine would grate very harshly on the ears of the British people. Mr. "Walpole, in his History, 1 has well said: "The United Kingdom 1 Vol. 3, p. 25. THE .MHMKIE DOCTRIM:. 13 wa- tin.- last country in Europe which would have consented to recognize the novel doctrine. Its whole history, from the days of the (in at Charter to the defeat of the government a system of international law." The declaration of the allied sovereigns that "'useful or neces- sary changes in legislation and in the adminis- tration of States ought only to emanate from the free will and the intelligent and well- weighed conviction of those whom God had n-ndeivd responsible for power," necessarily could not tind acceptance in (Jreat Britain. It was directly antagonistic to every principle of our constitutional system. Its adoption would ignore tin- M niggles and triumphs in 14 THE MONROE DOCTRINE. the motherland on behalf of freedom of gov- ernment. It would turn backward the dial of popular progress, and rehabilitate the exploded dogmas of the divine rights of kings, and the absolute servility of the nation to the crown. The Great Charter, the Petition of Rights, and the Bill of Rights, would have existed only as idle traditions, and not as living, moulding forces in our system of government. The British government, therefore, had no other course but to protest against the asserted right of one nation to interfere by force in the inter- nal concerns of another nation simply because that other might desire to effect changes of government not in accordance with the prin- ciples of absolutism. Naples and Piedmont sought to shake oft' tyrannical rule, and to introduce popular reforms. But under the sanction of the allied sovereigns, and in ac- cordance with the principles laid down, the aspirations of these peoples were crushed by Austrian bayonets. Webster, in the speech from which I have just quoted, has, with great force, said : " This asserted right of forcible intervention in the aifairs of other nations is in open violation of the public law of the world. Who has authorized these learned doctors ot Troppau to establish new articles in this code ? Whence are their diplomas? Is the whole THE MONROE DOCTRINK. 1 "> world expected to aeqiiiesee ill principles whieh entirely .-ubvert the independence of nations? On tin- basis of this independence has been iv:iivut hy a principle above power, hy a sense of propriety and justice. On this principle the great commonwealth of c-ivi- li/.ed states has been hitherto upheld." But " these learned doctors of Troppau," to wit, the allied sovereigns, had determined to dis- _anl the first principles of international law. and to enforce obedience to absolutism in the government of nations. The application of their circular was not to be confined to Naples and Piedmont. Spain had given evidence of a desire for larger liberty, and freer constitu- tional methods of government. An insurrec- tion had broken out in Spain in 1821; and in response to 'the popular wish a constitution, fairly liberal in its terms, had been assented to by King Ferdinand. The Holy Alliance saw in this movement a menace to their system. The Congress of Verona was convened in October, 1822, and it was there arranged by Russia, Austria, Prussia and France that tin- latter nation should invade Spain, with the 16 THE MONROE DOCTRINE. avowed object of overthrowing the constitu- tion, and of restoring Ferdinand to the position of an absolute king. The Duke of Wellington represented Great Britain at the Congress of Verona, but he refused to be a party to any such undertaking, and protested on behalf of Great Britain against the introduction of such a principle in the international code. The representative of a nation whose cardinal prin- ciples of government are that the people are the origin of power, and that the object of all government is the good of the governed, could not well subscribe to the doctrines set forth in the circular of the Holy Alliance. At this time Mr. Canning was Secretary of State for Foreign Affairs. In accordance with the under- standing at Verona, a French army soon after invaded Spain, overthrew the constitution, and restored absolutism. The well known pub- licist 1 from whom I have already quoted, in respect of this transaction, says: "The British government disclaimed for itself,' and denied to other powers, the right of requiring any changes in the internal institutions of inde- pendent States, with the menace of hostile attack in case of refusal. It did not consider the Spanish revolution as affording a case of that direct and imminent danger to the safety 1 Wheaton's Inter. Law, p. 122. THE MONROE DOCTRINK. 17 ;in- sary for her own political and civil reforma- tion ; but because she attempted to propagate, B 18 THE MONROE DOCTRINE. first her principles, and afterwards, her domin- ion, by the sword." While Great Britain protested against the declaration of the Con- gress of Verona, yet she did not offer any resistance by force of arms to the invasion of Spain by the armies of France. She protested against the principle involved in the act, and rested contented with that. About this time, a further question was beginning to disturb the diplomatic firmament. For some time previously to the Congress of Verona, Spain bad lost her grip on her South American colo- nies. In fact, these colonies had revolted, and had thrown off allegiance to the parent state. The United States had sympathized with them in their efforts for self-government, and, at an early period in their struggle for freedom, had recognized their independence. Mr. Rush, at the time, was Minister from the United States to the Court at London. Twenty years after his return home from his diplomatic mission he published the second volume of his " Resi- dence at the Court at London." His term as minister extended from the years 1817 to 1825, and in this interesting volume he has given us valuable and authentic information as to the part played by Mr. Canning in the relations and negotiations of Great Britain with foreign powers. Happily, Mr. Rush details at length THE MnNK'tK DOCTRINK. 1 ! the confidential conversations and correspond- ence which took place between himself and Mr. Canning in respect of Spain and her re- volted South American colonies. These com- munications began as early as August, 1823, and resulted at length in President- Monroe's declaration as to non-intervention in his mes- sage of December of that year. Under date August 23, 1823, Mr. Rush, writing of a letter received from Mr. Canning of the 20th of that month, says 1 : "He asks if the moment has not arrived when our two governments might understand each other as to the Spanish Ame- rican colonies ; and if so, whether it would not be expedient for ourselves, and beneficial for all the world, that our principles in regard to them should be clearly settled and avowed. That as to England she had no disguise on the subject: 1. She conceived the recovery of the colonies by Spain to be hopeless. 2. That the question of their recognition as Inde- pendent States was one of time and circum- stances. 3. That England was not disposed, however, to throw any impediment in the way of an arrangement between the colonies and the mother country, by amicable negotiation. 4. That she aimed at tin- possession of no portion of the colonies for herself. 5. That 1 1 lush's Residence at the Court of London, p. 412. 20 THE MONROE DOCTRINE. she could not see the transfer of any portion of them to any other power with indifference." The communication of Mr. Canning to Mr. Rush was duly notified by the latter to the then Secretary of State for the United States, John Quihcy Adams, by letter of date August 23, 1823. The American Minister, on the 26th . of the same month but three days later notes in his diary a further communication from the Foreign Secretary, in which the latter says " that England had received notice, though not such as imposed the necessity of instant action, that as soon as the military ob- jects in Spain w r ere achieved, which France expected (how justly he could not determine) to achieve very speedily, a proposal would be made for a congress in Europe, or some other concert, and consultation, specifically on the affairs of Spanish America ; and he adds that he need not point out to me the complications to which such a proposal, however dealt with by England, might lead." This was also for- warded to Mr. Adams on the following day. On September 10, Mr. Rush enters in his diary: "Take steps to apprise the deputies of Spanish America in London of the hostile views of France and the continental powers, should the arms of the former succeed in Spain. I make no mention of Mr. Canning's name, or THE MONROE DOCTRINK. 21 any allnsion to it, as the source of my infor- mation : which information, although it may not be new to the deputies, I impart to put them on their guard." Again, in a dispatch from Mr. Rush to his government, of date September 19, 1823, detailing what took place at a conference between himself and Mr. Can- ning the previous day, he writes that Mr. Canning, in urging the co-operation of the "Tinted States, said the question "was full as iiim-li American as European, to say no more. It concerned the United States under aspects and interests as immediate and commanding as it did or could any of the states of Europe. They were the first power established on that continent, and now confessedly the leading power. They were connected with Spanish America by their posilion, as with Europe by their relations ; and they also stood connected with these new states by political relations. \V;i-; it possible they could see with indifference their fate decided upon by Europe? Could Europe expect this indifference ? Had not a new epoch arrived in the relative position of the United States towards Europe, which Eu- rope must acknowledge ? Were the great po- litical and commercial interests, which hung upon the destinies of the new continent, to be canvassed and adjusted in this hemisphere 22 THE MONROE DOCTRINE. without the co-operation, or even knowledge, of the United States ? Were they to be can- vassed and adjusted, he would even add, with- out some proper understanding between the United States and Great Britain, as the two chief commercial and maritime states of both Avorlds? He hoped not; he would wish to persuade himself not." Such, says Mr. Rush, Avas the tenor of Mr. Canning's remarks at that interview. It is evident England's For- eign Secretary, all through the conversations and correspondence, was endeavoring to im- press upon the American Minister the urgent importance of actively and vigorously co-oper- ating with Great Britain against the aims of the Holy Alliance in aiding Spain against Spanish America. The correspondence also shows that Mr. Rush was willing to act, but as a condition precedent, he desired Great Britain at once to acknowledge the independence of the newly organized South American Repub- lics. It is also quite evident from the subse- quent course of events that Mr. Canning had learned that it was the intention of France, under the support and guidance of the allies, after the overthrow of constitutional govern- ment in Spain, and the restoration of Ferdinand to his throne based on absolutism, to aid Spain in subduing her revolted South American colo- mi: MONROE DOCTRIXK. 23 nies. Tliis knowledge it was which induced Mr. Canning to stimulate the American Minis- ter and his government on behalf of these rising Republics. Canning addressed himself to the French Ambassador, Prince de Polignac, and frankly told him that in such a contingency (Jreat iSritain would assuredly interfere. And we know well what was the effect produced l>y Canning's attitude. Mr. liush 1 frankly says: That the change in France and her allies was produced l>y the knowledge that England would oppose at all hazards hostile plans upon Spanish America may In- inferred with little danger of error. The certainty of it is, indeed, part of European history at that epoch." He further says as to the course of the United States : " By the early transmission of the pro- posals made to me by Mr. Canning in his notes of the latter end of August, the copies of them, as well as of my reports of our confer- ence on the whole subject, arrived at Wash- ington in time to engage the deliberations of President Monroe and his cabinet before the meeting of Congress in December." He fur- ther says, and this is highly significant : "Al- though no joint movement took place, my dispatches had distinctly put before our gov- ernment the intentions of England, with which, 1 Residence at the Court of London, p. 456. 24 THE MONROE DOCTRINE. in the main, our policy harmonized; and President Monroe, in his opening message to Congress, which followed almost immediately afterwards, in December, 1823, put forth the two following declarations." The two declara- tions were (1) non-intervention, and (2) non- colonization, which have already been stated at length. Mr. Rush says the first was prob- ably expected by England and was well re- ceived; the second was unexpected, and not acquiesced in by the British government. In closing his narrative of this interesting diplo- matic event, Mr. Rush further says: "It may be inferred that the moral certainty which England derived through my correspondence and conferences with the Foreign Secretary that the United States would, in the end, go hand in hand with her in shielding those new states from European domination, even had the certainty of such a policy in the United States not been otherwise declucible, must have had its natural influence upon England in strengthening her in her line of policy laid down towards France and the Continental Powers." I have thought it advisable to quote exten- sively from the man who, at the time, was American Minister in London. We cannot look for information in any direction more THE MONROE DOCTRINK. 25 authentic. Mr. Rush's statements fully justify the contention that President Monroe's mes- sage against non-interference, at that time, in ^l-anish American affairs, was inspired by ( 'aiming. And this has been the view of lead- ing American statesmen, some of whom were personally cognizant of the facts. When Presi- dent Monroe received, through Mr. Rush, the proposals of Canning, he communicated with Jefferson and Madison, predecessors in his high office. It was natural that he should seek their advice. They both were men of marked ability, and were well versed in diplomacy. .Jetterson, in his letter of reply to the Presi- dent, dated October 24, 1823, after discussing the position of the allies and their attitude towards the Spanish American colonies, says 1 : "I should think it therefore advisable that the executive should encourage the British gov- ernment to a continuance in the dispositions expressed in these letters by an assurance of his concurrence with them as far as his au- thority goes, and that as it may K ad to war, tin- declaration of which requires an act of Congress, the case should he laid before them for consideration at their first meeting, and 1 Wharton's Dig. Int. Law, vol. 1, p. 269; Tucker's Life of Jefferson, vol. 2, p. 461. 26 THE MONROE DOCTRINE. under the reasonable aspect in which it is seen by himself." We have in this reply advice tendered to the President in October to concur in the British proposals, and as following this advice might mean war, the President is fur- ther advised to lay the whole case before the next meeting of Congress. The next meeting of Congress was held within six weeks there- after, and at that meeting the President's mes- sage was delivered. Mr. Madison, in his reply, dated October 30, 1823, among other things said : " It cannot be doubted that Mr. Can- ning's proposal, though made with the air of consultation as well as concert, was founded on a predetermination to take the course marked out, whatever might be the reception given here to his invitation. But this consideration ought not to divert us from what is just and proper in itself. Our co-operation is due to ourselves and to the world, and while it must insure success in the event of our appeal to force, it doubles the chance of success with- out that appeal." Co-operation with whom? Why, assuredly with Great Britain, in accord- ance with the proposals of Canning to Rush. Xo other conclusion can be drawn from the language of the correspondence. In a letter from Jefferson to Madison, November 1, 1823, the former, in giving a summary of his reply THE MONROE DOCTRINE. -7 to the President, uses tliis language: 1 "I have expressed to him my concurrence in the policy of meeting the advances of the British gov- ernment, having an eye to the forms of our constitution in every step in the road to war. With the British power and navy combined with our own, we have nothing to fear from the rest of the world, and in the great struggle of the epoch between liberty and despotism, we owe it to ourselves to sustain the former, in this hemisphere at least. I have even sug- gested an invitation to the British government to join in applying tin- 'small effort for so inn<-h good' to the Fi-cncli invasion of Spain, and to make Greece an object of some such favorable attention. Why Mr. Canning and his col- leagues did not sooner interpose against the calamity, which could not have escaped fore- sight, cannot be otherwise explained but by the difficult aspect of the question when it re- lated to liberty in Spain and the extension of British commerce to her former colonies." Tin- suggestion of "meeting the advances of the British government" on the part of tin- United States, proves that the moving spirit was the British government under the inspira- tion and guidance of Canning, and that the effort was to get the United States to concur 1 Wharton's Dig. Int. Law, vol. 1, p. 271. 28 THE MONROE DOCTRINE. with Great Britain. Mr. Calhoun was a mem- ber of President Monroe's cabinet in 1823, at the time the message was framed and delivered. His statements and opinions, therefore, as to the origin of this so-called " Monroe Doctrine " should necessarily have great weight. He reviewed this whole subject at considerable length in a speech i delivered in the United States Senate in 1848, when the proposed oc- cupation of Yucatan was under consideration. Upon that occasion he said : " I remember the reception of the dispatch from Mr. Rush as distinctly as if all the circumstances had oc- curred yesterday. I well recollect the great satisfaction with which it was received by the cabinet. It came late in the~year not long before the meeting of Congress. As was usual with Mr. Monroe upon great occasions, the papers were sent round to each member of the cabinet, so that each might be duly apprised of all the circumstances, and be prepared to give his opinion. The cabinet met. It deliberated. There was long and careful consultation ; and the result was the declaration which I have just announced. All this has passed away. That very movement on the part of England, sustained by this declaration, gave a blow to the celebrated alliance from which it never 1 Calhoun's Works, vol. 4, p. 454. THE MONROE DOCTRINE. 29 recovered. From that time forward it gradually decayed, till it utterly perished." In another part of tin- sunn- speech 1 Mr. Calhoun, in de- tailing the history of the transaction leading up to the President's declaration, says that the circumstances show distinctly that the pro- posals " came through Mr. Utish originating not with Mr. Adams but Mr. Canning and were first presented in the form of a proposi- tion from England." Before I close I shall refer to Mr. Calhoun 's statements respecting the clauses of the mes- sage relating to non-colonization. What I have quoted refers to non-intervention, and the non- I'.xu-nsion of the political system of the allied powers to the American continents. He says the cabinet met and deliberated, and the result of the deliberation was a determination to sup- port England against the allied powers. Great Britain, under Canning's guidance, had pro- tested against the assumed right of one nation to intervene in the internal affairs of another nation, and to settle by force, if necessary, its form of government. Mr. Calhoun states that there was " long and careful consultation " over the dispatch received from Mr. Rush. That dispatch detailed Canning's proposals urging the United States to stand by Great Britain in > p. 462. 30 THE MONROE DOCTRINE. resisting the reactionary and autocratic prin- ciples of the allied powers. Mr. Calhoun was in a position to know fully the facts whereof he affirmed. He was a prominent member ot the cabinet at the time of the " careful consul- tation" over Mr. Rush's dispatch. His testi- mony is that of a witness in a position to speak with certainty of knowledge. The conclusion reached was to support England in her move- ment. The President's declaration contained in his message was the result of that conclu- sion. Here, then, we have the unanswerable proof that the declaration of -Mr. Monroe was inspired by Cunning. But there are other names distinguished in American public life who support the position of Mr. Calhoun. Mr. Sumner, 1 in one of his books, says : " The Monroe Doctrine, as now familiarly called, proceeded from Canning. He was its inventor, promoter, and champion, at least so far as it bears against European inter- vention in American aifairs." And on another page of the same work he says : "At last, after much discussion in the cabinet at Washington, President Monroe, accepting the lead of Mr. Canning, and with the consent of John Quincy Adams, put forth his famous declaration." Mr. Sumner is no mean authority on such a 1 Prophetic Voices Concerning America, p. 157. TUB MONKOE DOCTRINK. 31 subject as the one now under discussion. lli- scholarly attaiimiriits were of the highest rank : his means of knowledge were ample ; and his jealous watchfulness for his country's credit would keep him from making any such admis- sions unless fully warranted by the facts. He was noted for liom-sty and fearlessness in the expression of his opinions. In the extracts quoted he gives credit to Canning as the pro- moter of the doctrine, and asserts that the President's declaration followed the lead of Great Britain's Foreign Secretary. To the list of distinguished Americans, already given, a Bribing the parentage of this doctrine to Canning, may be added the names of such noted publicists as President Woolsey, Prof. Woolsey, Von Hoist, and others. If we turn to writers of our own country, many promi- nent ones can be named who support the same view. The name of Dr. Philliniore stands so deservedly high as a jurist and publicist that I feel it important to give a short extract from his great work on International Law. 1 After referring to the reasons which brought about the formation of the Holy Alliance, and the intervention in the affairs of Spain to crush tree government and restore absolutism in that country, he says : " Subsequently, under the 1 Vol. 1, 3 ed., p. 589. 32 THE MONROE DOCTRINE. wise and vigorous administration of Mr. Can- ning, Great Britain protested against any in- tervention of the European powers in the contest between Spain and her American colo- nies, declaring that she would consider any such intervention by force or menace as a rea- son for recognizing the latter without delay, and at the same time the United States of America announced that they would consider any such interference as an unfriendly mani- festation towards themselves." A perusal of Stapleton's Life of Canning will fully bear out what I have already claimed for the British statesman. Mr, Stapleton was private secre- tary to Canning, and was in a position to speak with a degree of certainty. He asserts that while there was no agreement between the two countries, 1 yet it is impossible not to believe but that the correspondence which passed be- tween Mr. Canning and Mr. Rush, mainly encouraged, if it did not originate to the gov- ernment of the United States, the idea of tak- ing so firm and decisive a tone. He further declares that the language of the President's message was * " in a very great degree, if not wholly, the result of Mr. Canning's overture to Rush." Mr. Canning, in a private letter, 1 Stapleton's Life of Canning, vol. 2, p. 39. 3 p. 46. THE MONROE DOCTRINi:. 33 December 21, 1823, to Sir AVilliani a Court, who was then British minister to Spain. t' that possession. At this time it is diffi- cult to understand how any such dispute could arise. It would be a violation of the first prin- ciples of independent sovereignty for one nation to interfere by way of colonization within the 1 Tucker's The Monroe Doctrine, p. 27. 1 Wharton's Int. Law Dig., vol. 1, p. 279. 42 THE MONROE DOCTRINE. territorial limits of another. Mr. Monroe's declaration was intended to suit a special case, the extravagant pretentious of Russia as to the north-west coast and the adjacent waters. It did not touch Great Britain under the inter- pretation, that it was only to apply to future colonization, for she was a colonizer in posses- sion. Again, in 1845 and 1848, President Polk, in his messages of those years, gave sub- stantially the same interpretation to the non- colonization clause. He limited it to future colonization on the part of a European state. He explained 1 that the existing rights of every European nation had to be respected, that the message did not apply to such cases. And Mr. Clay concurred in this view, for he stated 2 that "it was not proposed by that principle to disturb pre-existing European colonies already established in America; the principle looked forward, not backward." This fact is also brought out with great force and prominence by Mr. Calhoun 3 in the speech from which I have already quoted. I feel it due to the importance of this branch of the subject, so generally misunderstood, to refer at length to Mr. Calhoun's statements, 1 Jenkins' Life of Polk, p. 184. 2 Wharton's Int. Law Dig., vol. 1, p. 280. 'Calhoun's Works, vol. 4, p. 460. THE MONROE DOCTRINE. 43 although at the risk of being considered un- necessarily prolix in quotation. He says : " The word 'eolonixation' has a specific meaning. It means the establishment of a settlement of emigrants from the parent country in a terri- tory either uninhabited or from which the inhabitants have been partially or wholly ex- pelled. This is not a case of that character. But here it may be proper, in order to under- stand the force of my argument, to go into a history also of the declaration of Mr. Monroe. It grew out of circumstances altogether differ- rnt from the other two. At that time there was a <|uestion between Great Britain and the United States on the one side, and Russia on the other. All three claimed settlements on the north-west portion of this continent. Great I>ritain and ourselves having common interests in keeping Russia as far north as possible, the former power applied to the United States for co-operation; and it was in reference to that matter that this additional declaration was made. It was sail to be a proper opportunity t> make it. It had reference specially to the subject of the north-western settlement, and the other portions of the continent were thrown in, because all the rest of it, with tin- exception of some settlements in Surinam, Maracaibo, and thereabout, had passed into independent 44 THE MONROE DOCTRINE. hands." Mr. Calhoun then goes on to say 1 that this part of the message originated with Mr. Adams, and that it never came before the cabinet for consideration. In this connection he says : " My impression is, that it never be- came a subject of deliberation in the cabinet. I so stated when the Oregon question was be- fore the Senate. I stated it in order that Mr. Adams might have an opportunity of denying it, or asserting the real state of the facts. He remained silent, and I presume that rny state- ment is correct that this declaration was in- serted after the cabinet deliberation. It origi- nated entirely with Mr. Adams, without being submitted to the cabinet, and it is, in my opin- ion, owing to this fact that it is not made with the precision and clearness with which the two former are. It declares, without qualifica- tion, that these continents have asserted and maintained their freedom and independence, and are no longer subject to colonization by any European power. This is not strictly accu- rate. Taken as a whole, these continents had not asserted and maintained their freedom and independence. At that period Great Britain had a larger portion of the continent in her possession than the United States. Russia had a considerable portion of it, and other powers 1 p. 462. THE MONROE DOCTRINK. 45 i 1 >onie portions on tin- >outhern part.- of this continent. The declaration was broader than the fact, and r.'7-/7y//.v precipitancy and want "f tine, reflection. Besides, there was an impro- priety in it when viewed in conjunction with the foregoing declarations. I speak not in the language of censure. \Ve were, as to them, acting in concert with England on a proposi- tion coming from herself a proposition of the utmost magnitude, and which we felt at the time to be essentially connected with our peace and safety; and of course it was due to pro- priety a> \\ell as policy that this declaration should be strictly in accordance with British feeling." . . . "Xow I will venture to say that if that declaration had come before that cautious cabinet for Mr. Monroe was among the wisest and most cautious men I have ever known // n-mild have been modified, and ex- pressed with a far greater degree of precision, and with much more delicacy in reference to the feelings of the British government." It must not be forgotten that the man who uses this language was a member of Mr. Monroe's cabi- net in 1823. He declares that this part of the message relating to non-colonization was never even considered by the cabinet: that its author was Mr. John Quincy Adams, then Secretary of State; that the language lacks precision, is 46 THE MONROE DOCTRINE. not in accordance with the then existing facts, and is wanting in that diplomatic courtesy then especially due to Great Britain. This is cer- tainly strong language, and it becomes more emphatic still when uttered by one who was a cabinet minister in 1823, and who must have spoken on the floors of the Senate fully feeling the responsibility of his statements. I leave this part of the subject with a quotation from Justin McCarthy, 1 a writer of acknowledged ability, much research, and judicial fairness. Writing of the action of the United States protesting against the intervention of Louis Napoleon in the affairs of Mexico, he asserts thut they " disclaimed any intention to prevent the Mexican people from establishing an em- pire if they thought fit, but they pointed out that grave inconveniences must arise if a for- eign power like France persisted in occupying with her troops any part of the American con- tinent. The Monroe Doctrine, which, by the way, was the invention of George Canning and not President Monroe, does not forbid the es- tablishing of a monarchy on the American continent, but only the intervention of a Euro- pean power to set up such a system, or any other system opposed to liberty there." This view coincides with the statements I have 1 History of Our Own Times, vol. 2, p. 222. THE MONROE DOCTRINK. 47 already made. And Mr. Sevvard, as we ha\v een, officially supports the same view. This naturally brings us to the consideration of the second division of the subject of the message no extension of the political system of tin- allied powers to the American continent. Al- though this part of our discussion is closely idt-ntitied with the non-colonization clause, yet there are features quite distinct. The " politi- cal system " of the allied powers was based on absolutism. The crowned heads composing the Holy Alliance were the originators and supporters of that system. Its basic principle was, that reforms could only emanate from the ruler, not from the people. And bound up in that prinriple was an understanding or agree- ment among the allied powers to interfere in the affairs of every nation to repress any at- tempt on the part of the people to modify or change their system of government. That sys- tem would justify the powers supporting it, to aid Spain or any other country to crush the aspirations of the people of any colonial de- pendencies to become independent sovereign states. And, as I have already pointed out, it was tin- intention of the allied powers, as soon as France, under their guidanee, had crushed the popular movement in Spain, to take steps to restore the latter's authority over tin- South 48 THE MONROE DOCTRINE. American republics. This would be imposing upon those countries by force a system they did not want, arid which they could success- fully resist against Spain single handed. Great Britain protested against any such attempt on the part of the allied powers, and President Monroe, in his message, stood firmly by Eng- land. The term "political system," as used by President Monroe, was not intended by him to mean any particular system or form of gov- ernment. The message in this regard had no reference to the substitution of republican fur monarchical form of government. It was in- tended to protest against the imposition of a form of government upon a country forcibly, by threat, by arms, against the wishes of the people. Placing Maximilian upon the Mexi- can throne, and keeping him there by French bayonets, would be a case in point. If the people of Mexico had voluntarily determined their form of government, and had invited Maximilian to be their emperor, there is noth- ing in Mr. Monroe's message opposed to such a course. The political system of the allied powers, as understood and interpreted by them, was a standing protest against the existence of the United States as a nation. . That national existence had been achieved by successful revo- lution on the part of the people. They had T1IK .M"NK"K DOCTRINK. t'. 1 thrown off allegiance to their ruler, against his will, and the system of the allied powers was intended to prevent any each movement. That -y-tem. under the direct sanction of the Kiiiaii emperor, left the Greek, struggling for freedom and independence, to the mercy of the ruthle-- Turk. Well might all countries penetrated with the love of freedom, and governed by constitutional methods, oppose the introdue- tion of such a " political system " into any part it' the world. The declarations of President Monroe's me sage have never received the formal sanction of the Congress of the United States. A decla- ration in a Presidential message indicates the policy of the executive branch for the time being, but it has no binding force upon the nation, or upon the future policy of the nation. But it is possible to go further, and say that the Congress of the United States has declined to extend a formal sanction to these particular portions of the me<>age. Mr. Clay, January 20, 1824, sought to obtain the sanction of Con- ures>. He moved a resolution in the House of Representatives, of which at the time hi- wa- speaker, " That the people of these Mates would not see, without serious iu|uictude. any forcible interposition by the allied powers of Kurope. in behalf of Spain, to reduce to their former D 50 THE MONROE DOCTRINE. subjection those parts of the continent of Ame- rica which have proclaimed and established for themselves, respectively, independent govern- ments, and which have been solemnly recog- nized by the United States." 1 This resolution was not even called up for the vote of the House of Representatives, and a somewhat similar resolution of Mr. Poinsett, of South Carolina, met the same fate. The prudent caution of the House would not even commit Congress to an expression of "serious inquie- tude" against the forcible intervention of the allies on behalf of Spain to reduce to subjec- tion a South American republic whose inde- pendence had been acknowledged by the United States. "While, therefore, the 'Monroe Doc- trine,' with regard to forcible intervention, was still," as an American writer 2 has forcibly said, " a living question, it failed to meet the sanction of Congress, in whose judgment it seemed at least prudent to delay the adoption of any measures corroborative of the President's sug- gestions until such intervention had actually taken place. The declaration of the President did not commit the policy of the country to any specific action in the premises. It rested with Congress to give it life and activity, and 1 Wharton's Int. Law Dig., vol. 1, p. 278. 2 82 North Am. Kev., 493. THE MONROE DOCTRINE. ~>\ tlii> Congress declined to do. Upon the \si- dom of this decision we do not undertake to pronounce ; we merely state the facts for the purpose of drawing the conclusion that this branch of the 'Monroe Doctrine' is not a liv- ing and substantive principle of our govern- ment policy." The appointment of delegates to the Panama Congress came up in 1826, and a perusal of the history of that incident will show that Congress was careful not to commit itself to any formal sanction of the message of In 184s, when Pre>ident Polk sought to obtain such formal sanction in connection with the ditliciilty in Yucatan, Mr. Calhoun, speaking with all the authority of eertain know- ledge as an ex-cabinet minister, declared that Piv-ident Monroe's statements were but mere declarations; that they did not represent the settled policy of the country, and that in the Panama case they were disavowed. Mr. Tucker 1 admits that the doctrine has always failed to secure legislative confirmation, and that resolution after resolution upon the sub- ject has been before h< th 1 (ranches of Congress, only to be withdrawn or to be adversely re- ported upon by the committee to whom intrust- ed." And Mr. \Vilson, as late as ls.">i;, in a 1 The Monroe Doctrine, p. 123. 52 THE MONROE DOCTRINE. speech 1 in the Senate, said: "Until the Senate and House of Representatives adopt it, I think the less our statesmen at home and diploma- tists abroad say about it, in dealing with inter- national questions, the better." Dr. Phillimore* says : " I may observe, in passing, that the doctrine contained in it, whatever that may be, has not been corroborated by an act of the legislature of the United States. But the doc- trine does not, as has been sometimes supposed,, deny the right of European countries to rule their colonies in America, or their right of further colonization in America. It protests against war, being waged in America by Euro- pean powers to preserve the equilibrium of states in Europe." It may then, I think, be considered that the Congress of the United States has never given its formal sanction to any of the declarations of the President's mes- sage. Other authorities might be referred to, to the same effect, were it necessary to do so. Very early in the history of that country Wash- ington advised against entering into any " en- tangling alliances" with foreign countries, and that policy has been quite faithfully followed throughout the history of the great republic. There was a departure in the case of the Clay- 1 Tucker's The Monroe Doctrine, p. 123. 2 Int. Law, 3 ed., vol. 1, p. 593. THE MONROE DOCTRINK. ">:5 ton-Bui we r treaty in 1850, arising out of the proposed construction of the inter-oceanic canal n< TOSS the isthmus; but that is an instance, it is thought, standing alone. But even if Con- gress had formally sanctioned the declarations of the message, if it had enacted legislation con- ti nning these declarations, that course would not make them binding on any other nation as a rule of international law. The statute law of a country has force within its territorial limits, but not beyond. In this connection the question very natur- ally arises, what is international law or the law <>t' nations? For an answer to this question it will be useful to ascertain how eminent writers on this branch of knowledge have defined it. Hooker 1 says: u Now, besides that la\v, which Dimply concerneth men as men, and that which belongeth unto them as they are men linked with others in some form of political society, there is a third kind of law which toucheth all such several bodies politic, so far forth as one t' the society existing among inde- pendent nations, with such definitions and modifications as may be established by general consent." Prof. Holland, 1 after discussing law as between citizen and citizen, and as between the state and the citizen, says : " But there i- a third kind of law which is, for many reasons, convenient to co-ordinate with the two former kinds, although it can he described as law only by courtesy, since the rights with which it is concerned cannot properly be described as legal. It is that body of rules, usually described as international law, which regulates the rights which prevail between slate and state." Tin- writer further refers to the term as being con- venient to express those rules of conduct in a-- cordanee with which, either in consequence of their express consent or in pursuance of the usage of the civilized world, nations are ex- pected to act. President Woolsey* says it, "in a wide and abstract sense, would embrace those rules of intercourse between nations which arc deduced from their rights and moral claim-: or, in other words, it is the expression of the j u nil and moral relations of state- to one an- other." l'>ut he goes on to say*: "Coming 1 Elements of Jurisprudence, 6th ed., p. 116. 1 Inter. Law, 2nd ed., p. 18. p. 19. 56 THE MONROE DOCTRINE. within narrower limits, we define international law to be the aggregate of the rules which Christian states acknowledge as obligatory in their relations to each other, and to each other's subjects." Prof. "Woolsey 1 declares it to be " a collection of rules by which nations, and their members respectively, are supposed to be governed in their relations with each other. In its exact sense, law is a rule of property and of conduct prescribed by sovereign power. Strict- ly speaking, therefore, as nations have no com- mon superior, they cannot be said to be subject to human law. But there is, nevertheless, a body of rules, more or less generally recog- nized, by which nations profess to regulate their own conduct towards each other, and the con- duct of their citizens respectively. Being rules of property and of conduct, though not pre- scribed by a superior, they are somewhat loosely designated laws; and, taken together, they form what is called international law." In his recent address before the American Bar Asso- ciation, 2 Lord Russell of Killowen, the Lord Chief Justice of England, said : " I know no better definition of it than that it is the sum of the rules or usages which civilized states have agreed shall be binding upon them in their 1 Johnson's Universal Cyclopaedia, vol. 4, p. 632. 1 At Saratoga, August 20, 1896. THE MONROE DOCTRINK. ~>7 dealings with one another." I have purposely "juoted the various definitions given of the term " law of nations," or its convertible term " in- ternational law," by so many distinguished writers and publicists, to ascertain if by any possibility a declaration of a president, or king, or even a statute of a legislature, could suo -t'ully a-pire to rank as a rule of international law. It is well understood that a Presidential message 1 is to inform Congress of the state of tin- nation, and to recommend such action in domestic and foreign relations as may be thought advisable. The responsibility of action remains with ( 'ongress. The recommendations of tin- message may represent executive /<"//,-//. they certainly cannot have any legal force, binding either upon the legislature or the peo- ple at large. If a message only represents a policy, ami maybe followed or repudiated by the governim-nt for the time being, it is diffi- cult to understand how any declarations upon which that poliey is founded can have force a- articles of international law. If all, or a ma- jority of eivili/ed nations assented to any siu-h declaration, and agreed to be bound by it, it would bind those so assenting, but not other- wise. Take any of the definitions given, and ean it be successfully said that President Mon- 1 Cooler's Principles of Constitutional Law, p. 10"). 58 THE MONROE DOCTRINE. roe's message is binding upon any sovereign state ? Mr. Wheaton speaks of rules or usages of international law existing by consent, and Lord Russell follows that view, but expresses it in stronger language. In his definition the rules or usages forming the system of inter- national law must be such as civilized states have agreed shall be binding upon them in their dealings and relations with each other. The leading writers and publicists in the United States, in common with those elsewhere, take this view, and deny that Mr. Monroe's decla- rations have any standing as rules of interna- tional law binding on the commonwealth of nations. President Woolsey, 1 on tjiis branch of the case, says : (1) The doctrine is not a national one. The House of Representatives, indeed, had no right to settle questions of policy or of international law. But the cabinet has as little. The opinion of one part of the gov- ernment neutralized that of another. (2) The principle first mentioned of resisting attempts to overthrow the liberties of the Spanish re- publics was one of most righteous self-defence and of vital importance. And such it will probably always be regarded if a similar junc- ture should arise. But the other principle of prohibiting European colonization was vague, 1 Inter. Law, 2nd ed., p. 67. THE MONROE DOCTRINK. 59 and it' intended to prevent Russia from stretch- ing her borders on the Pacific further to the south, went tar beyond any limit of interfer- ence that has hitherto been set up. What right had the United States to control Russia in gaining territory on tin.- Pacific, or planting colonies there, when she had neither territory nor colony to be endangered within thousands of miles." And further 1 : "To lay down the principle that the acquisition of territory on this continent by any European power cannot be allowed by the United States would go far I.. \, .ml any measures dictated by the system of tin- balance of power, for the rule of self-preser- vation is not applicable in our case; we fear no neighbors. To lay down the principle that no political systems unlike our own, no change from republican forms to those of monarchy, can be endured in the Americas, would he a step in advance of the congresses at Laybach and Verona, for they apprehended destruction to their political fabrics, and we do not. But t<> resist attempts of European powers to alter the constitutions of states on this side of the water, is a wist- and just opposition to interfer- ence. Anything beyond this justifies the sys- tem which absolute governments have initiate. 1 tor the suppression of revolutions by main 1 p. 70. 60 THE MONROE DOCTRINE. force." Prof. Woolsey, in a recent article, 1 ably reviewing adversely President Cleveland's message, says, in speaking of Mr. Monroe's message : " It is not a rule of international law, because it has never been made such by the common consent or agreement of nations." A little consideration must commend these pro- positions to every reasonable mind. Every state has the undoubted right to protect itself against injury, and against any act on the part of any other state, which it may deem injuri- ous. And the state itself must judge as to the effect of any given course on the part of another state upon its safety and prosperity. A decla- ration of a sovereign state, protesting against the conduct of another state, or insisting that its conduct is injurious or hostile, may be pro- per enough on the part of the nation objecting, but it would be a novel doctrine to contend such declaration or protest had the authority of a rule of international law. The admission of such a contention would enable one sove- reign state to impose on other sovereign states, against their consent, rules of conduct having the authority of international law. It is only necessary to state the proposition to show its manifest absurdity. Mr. Dana 2 has very care- 1 The Forum, February, 1896, p. 706. 2 Dana's Wheaton's Intr. Law, sec. 67, note 36; Wharton's Inter. Law Dig., vol. 1, p. 277. THE MoXKoK Im.TKINi:. lil fully >iinimari/.cd tin- whole message and his interpretation of it; and, for the sake of dear- ness, I give his summary : 1. The declarations upon which Mr. Monroe con-ulted Mr. Jefferson and his cabinet related to the interposition of European powers in the a flairs of American states. 2. The kind of interposition declared against was that which maybe made for the i>urjio.- t - of controlling their political affaire, or of ex- tending to thi.- hemisphere the system in opera- tion upon the continent of Europe, by which the great power- exercise a control over the atl'airs of other Kuroju-an states. 3. The declarations do not intimate any ourse of conduct to be pursued in case of such interpositions, but merely say that they would be " considered as dangerous to our peace and safety," and "as the manifestation of an unfriendly disposition towards the United States." which it would be imposgible for us to " behold with indifference," thus leaving the nation to act at all times as its opinion of its policy or duty might require. 4. The declarations arc only the opinions of the administration of 1823, and have acquired no legal force or sanction. 5. Tin- I'nited States has never made any 62 THE MONROE DOCTRINE. alliance with, or pledge to, any other American state on the subject covered by the declarations. 6. The declarations respecting non-coloniza- tion was on a subject distinct from European intervention with American states, and related to the acquisition of sovereign title by any European power by new and original occupa- tion or colonization thereafter. Whatever were the political motives for resisting such coloni- zation, the principle of public law upon which it was placed was that the continent must be considered as already within the occupation and jurisdiction of independent civilized na- tions. It may be of interest at this stage to glance at the boundary difficulty between Great Britain and Venezuela ; the attitude of the United States towards that controversy ; and the argu- ments employed to bring the dispute within the range of the so-called doctrine. In passing, it is important to note that Mr. Olney, in his letter of instructions of July 20, 1895, to Mr. Bayard, admits that the pronouncement of the doctrine by President Monroe " was unques- tionably due to the inspiration of Great Britain, who at once gave it an open and unqualified adhesion which has never been withdrawn." l 1 Document 31, 54th Congress, 1st session, p. 14. THE MONROE D<>< THINK. '' ''. He also admits that the doctrine "has never hern formally affirmed by Congress." And in face of these admissions he declares "that the rule thus defined has been the accepted public law of this country ever since its promulgation cannot fairly he denied." Ft is somewhat diffi- cult to understand how the promulgation of a policy by mean- of a Presidential message, not allirmed bv Congress, can claim to be the ac- v O cepted public law of the country. The state- ment is not supported by fact. For sonic ymr- a dispute has been pending between (iivat Britain and Vene/nela as to tin- proper location of the boundary line between the latter country and British Guiana. That controversy has become so acute that diplo- matic relations have been -n-pcmled between the two countrie.- ,-incr 1887. President Cleve- land, in his message to the Congress of the I'nited States of December 17, 1895, contends that this dispute in some way affects the well being of his country. He therefore insists that it is covered by the Monroe doctrine, as ex- pounded by him. and that (Jreat Britain must submit the whole subject of controversy to arbitration or run the risk of having a war with the 1'nited States. ( Jreat Britain main- tain.- that on all points about which there can be any reasonable doubt she i>, and alway- ha- 64 THE MONROE DOCTRINE. been, willing to arbitrate. Some of the claims of Venezuela, she contends, have no founda- tion whatever, and these Great Britain declines to submit to arbitration. A pretty fall history of the dispute may be found in Lord Salisbury's letter of November 26, 1895, to Sir Julian Pauncefote, the British Ambassador at "Wash- ington. According to Lord Salisbury the dis- pute does not ante-date the year 1840. In the latter year Sir Robert Schomburgk was ap- pointed by Great Britain a special commis- sioner for "provisionally surveying and de- limiting the boundaries of British Guiana." Xotice of his appointment was given to Vene- zuela. He made his report, and proposed that Great Britain should consent to surrender her claim to a more " extended frontier inland in return for the formal recognition of her right to Point Barima." And Lord Salisbury states that on this basis Schomburgk drew his line. He further states that " As the progress of set- tlement by British subjects made a decision of some kind absolutely necessary, and as the Venezuelan government refused to come to any reasonable arrangement, Her Majesty's government decided not to repeat the ofter of concessions which had not been reciprocated, but to assert their undoubted right to the terri- tory within the Schomburgk line, while still THE MONROE DOCTRINK. 'I.'. consenting to hold open for further negotiation, and even for arbitration, the unsettled lands between that lino and what they considered to be tlie rightful boundary, as stated in the note to Seflor Rojaz of the 10th .January, 1880.'' And in October, 1886, failing to get any ar- rangement, " the Schomburgk lino was pro- claimed as the irredueible boundary of the colony." Subjects of Great Britain have occu- pied the territory within the Schomburgk line, and the settlements were made on the well grounded assurance that the territory wa> liri- ti-h. To admit the claim of Yeiie/uela to the lands within that territory would be handing British subjects and their property to the CMC of a Spanish South American republic, whose past history gives no guarantee that either safety of life or property will be assured. 1 'resident Cleveland attempts to bring the con- troversy within the non-colonization clause of the message by claiming that the rectification of a boundary line, if decided favorably to (Jreat Britain, is to that extent extending the hitter's system of government to these conti- nents. He says 1 : " If a European power, by an extension of its boundaries, takes possession of the territory of one of our neighboring re- publics against its will and in derogation of it> 1 Document 31, 54 Congress, 1st Sens., p. 2. 66 THE MONROE DOCTRINE. rights, it is difficult to see why to that extent such European power does not thereby attempt to extend its system of government to that, portion of this continent which is thus taken. This is the precise action which President Monroe declared to be 'dangerous to our peace and safety,' and it can make no difference whether the European system is extended by an advance of frontier or otherwise." Prof. "VVoolsey has forcibly pointed out in a recent article 1 that under such an interpretation the renunciation of the claims of the United States to territory in the St. John valley, under the Ashburton treaty, was a violation of the Mon- roe Doctrine. The theory upon which Presi- dent Cleveland bases his message is, that the extension of Great Britain's system of govern- ment over the territory in dispute, in place of that of Venezuela, would in some way menace free republican government, and to that extent endanger the " peace and safety '* of the United States. History teaches us that Venezuela has been the theatre of periodic revolutions. Her government is a military dictatorship. Free- dom, as understood by us, has no. lodgment within her borders. Life and property are certainly not as safe under the government of Venezuela as under British rule. It might 1 The Forum, February 1896, p. 708. THE MONROE DOCTRINE. 67 also bo fair to assume that the peace and safety of tin.- I'nitcd States would IK- as >eciire with (Ireat Britain in possession of tin- disputed territory, as if Venezuela governed it. The boundary line between Canada and the United States extends from ocean to ocean, and in many places the two countries are settled on either side, and the people are living in peace and harmony. British rule and institutions north of the forty-ninth parallel of latitude have not. apparently, proved dangerous to the peace and safety of the republic. No hostile incursion has been made into the territory of that country from Canada. Xo attempt on the part of Great Britain has been made to menace or ,-uhvert its republican form of government. \\V heartily rejoice in the development and prosperity of our neighbors. Experience is airain.-t the assumption that the settlement of a boundary dispute hundreds of miles distant will in any way endanger the United States. The latter nation has no territory on the South American continent, and, if true to Washing- ton's tan-well advice, never will have any. It i.- very ditliciilt, under such circumstances, to understand how the supposed doctrine can be invoked to justify interference in such a con- troversy. In thi> connection how true the opinion of I'rof. I'.rvce': "riven no\\." >ays 1 162 North Am. Rev. (February, 1896), p. 146. 68 THE MONROE DOCTRINE. the distinguished author of the ' American Commonwealth,' " after reading what has been said by Mr. Olney and others in America, the Monroe Doctrine, as enunciated by Monroe and expounded by American historians and pub- licists up till the last few months, seems to have no more application to this particular case than a dogma of theology or a proposition in mathe- matics." Mr. Olney, in the letter of instruc- tions already referred to, gives a wider inter- pretation to President Monroe's message than even does President Cleveland. He has even gone beyond any public man in the United States clothed with the responsibility of office. He says, among other things : " To-day the United States is practically sovereign on this continent, and its fiat is law upon the subjects to which it confines its interposition. Why ? It is not because of the pure friendship or good will felt for it. It is not simply by reason of its high character as a civilized state, nor because wisdom and justice and equity are the invari- able characteristics of the dealings of the United States. It is because, in addition to all other grounds, its infinite resources, combined with its isolated position, render it master of the situation and practically invulnerable as against any or all other powers." The lan- guage quoted is from a public dispatch, penned THE MONROE DOCTRINE. 69 by a secretary of state, as instructions to an American minister for communication, res- pecting a controversy pending between two other sovereign nations. If such were not the case, one might be tempted to consider it as chiefly rhetoric, highly colored with patriotic laudation. Are we to understand that because the United States is " master of the situation and practically invulnerable," its fiat in this case is law, and must be so accepted by "all other powers?" If such be the case, why the necessity of any arbitration at all ? The whole question can at once be disposed of by the 41 fiat" of Mr. Olncy as the representative of lii- country, and his Hat once issued supersedes all rules of international law. Such language would come more appropriately from the chan- cellor of a German or Russian emperor than from the representative of a free republic. Lord Salisbury's position, in his dispatch to the British Minister at Washington, replying to Mr. Gluey 's letter of instructions, is so ap- propriate upon this phase of the question that I quote his language. His Lordship says: " In the remarks which I have made, I have argued on the theory that the Monroe .Doctrine in itself is sound. I must not, however, be understood as expressing any acceptance of it on the part of Her Majesty's government. It 70 THE MONROE DOCTRINE. must always be mentioned with respect, on ac- count of the distinguished statesman to whom it is due, and the great nation who have gen- erally adopted it. But international law is founded on the general consent of nations; and no statesman, however eminent, and no nation, however powerful, are competent to insert into the code of international law a novel principle which was never recognized before, and which has not since been accepted by the government of any other nation. 1 " He freely admits the right of the United States, in com- mon with other nations, to interpose in any controversy which it may think affects its in- terests, but that right is in no way strengthened or extended because the controversy affects American territory. President Cleveland, in one part of his mes- sage, makes an important admission which largely cuts the ground from under his feet. He says : " Great Britain's present proposition has never thus far been regarded as admissi- ble by Venezuela, though any adjustment of the boundary which that country may claim for her advantage, and may enter into of her own free will, cannot, of course, be objected to by the United States" This clearly abandons the contention put forth as to non-colonization, and the non- 1 Doc. 31, 54th Congress, 1st session, p. 25. THE MONROE DOCTRINK. 71 usion of a European political system to the A UK -rican continents. Is it true that the acqui- sition of territory on these continents, on t lie- part of a Kuropean power, "by an advance of frontier or otherwise," is dangerous to the peace and safety of the Tinted States? The only logical ground upon which the latter country ran maintain her position, either as to non- colonization or the non-extension of a Euro- pean political system to America, is danger to her peace and safety. The lodgment of a British colony, or its extension by enlargement nt' boundaries and the consequent establish- ment of a British political sj'stem in South America by the free consent of Venezuela, would be quite- as dangerous to the peace and safety of the United States as if Great Britain insisted upon holding the territory she now occupies against the wishes of Venezuela. I 'resident Cleveland, however, admits if the territory is acquired by the consent of Vene- xuela, no objection can be made by the United States. And yet such acquisition, in his opin- ion, is colonization and extension of a European political system to the extent of the territory thus gained. Such colonization, however, is harmless, according to President Cleveland, if the acquisition is made with the consent of the American nation claiming the disputed terri- 72 THE MONROE DOCTRINE. tory. It will be noticed that the " political system" obtains a status, whether established within the territory by consent or otherwise. It is very difficult to understand how the so- called doctrine affects the dispute between Great Britain and Venezuela. But, after all, is the establishment of British rule on any part of the American continents the extension of a purely European political system to those con- tinents? Great Britain cannot be said to be exclusively a European power. One-half of the North American continent and large por- tions of the South American continent, and many of the islands between, govern them- selves under the protection of the British flag. And to the extent indicated Great Britain is an American power, and is deeply interested in the peace and prosperity of the western hemisphere. London is nearer to Canada than is Washington to Alaska and portions of the United States. Inventions and improvements during the last half century have brought the different parts of a nation, and, in fact, the nations themselves, into closer community than ever before. A writer in a leading American law publication 1 very tersely states the position of his country on this question. He says : " The dispute between Great Britain and Vene- J 29 Am. Law Rev., p. 419 (1895). THE MONROE DOCTRINK. <> zuela with regard to tin- international boundary line between the territories of the two coun- tries, and the recent action of Groat Britain in demanding and enforcing the payment of an indemnity by Nicaragua for arresting and ban- ishing the British vice-consul and certain other British subjects at Bluefields, have led to a great deal of inconsiderate talk and bluster in tin- newspapers of this country concerning what is called the l Monroe Doctrine.' Very few, even of the editors who have written upon this subject, seem to know what the Monroe Doctrine really is; but most of them seem to think that it is some sort of declaration of our national policy, made by President Monroe, which obliges us to stand at the back of any <>f the republics of this continent in any dis- pute with an old world power, no matter what the merits of the dispute may be. Nothing an be further from the facts. The extent of the Monroe Doctrine is that it is the policy of the United States (1) not to interfere in the internal affairs of the governments of the old world; and (*2) not to allow these government - to interfere with republics which have been established upon this continent, so far as to suppress their republican institutions, or to at- taek the integrity of their territory. There was nothing whatever in the Monroe Doctrine 74 THE MONROE DOCTRINE. which required President Cleveland to interfere when the British made their demands upon Nicaragua for the payment of an indemnity of fifteen thousand pounds for the imprisonment, maltreatment and banishment of their consular agent and other subjects. Our own citizens have been maltreated by those petty half-civil- ized governments in a similar way, and we would have acted under similar circumstances as Great Britain did, though possibly without the same commendable vigor and decision." The statements I have made, and the authori- ties I have quoted, fully support the position claimed in the early part of this paper, 1 viz. : (1) That the doctrine itself, as enunciated and understood by President Monroe, owes its origin to the statesmanship of George Canning; (2) That it has never been formally sanctioned by the Congress of the United States ; (3) That it is not a part of international law binding upon nations. In the preparation of this paper I have gleaned from many fields, and have quoted freely and at length from writers and publicists of eminence, rather than give, in many cases, my own interpretation of what they have said or written. Resort has been had especially to the speeches and writings of American states- men and publicists. The aim has been to allow 1 Ante, p. 8. TIIK MONROE DOCTRIM:. 75 them, in their own language, to say what the doctrine really is. The subject has been much in is understood on both sides of the line. It' any success attend my humble effort to explain this subject, and remove misunderstanding, I shall feel amply repaid for the time and labor bestowed. It is in the nature of things that international difficulties should at times arise, but those difficulties are always capable of satis- t'a<'t<>ry solution in accordance with the prin- ciples of international law, interpreted in a broad, liberal, and Christian spirit. Great Britain and the United States excel all other nations in popular government, freedom, and Christian -i\ ilixatioii. It would be a stigma upon their advanced civilization if they allowed the peace of the world to be disturbed over a boundary dispute with a South American republic as to the ownership of a few square miles of territory. II. FIFTY YEARS A QUEEN. AN ADDRESS DELIVERED IN THE EXHIBITION BUILDING, ST. JOHN, N. B., JUNE 20, 1887, HIS WORSHIP MAYOR H. J. THORNE IN THE CHAIR. An auspicious event calls us together. We are assembled to mingle our congratulations upon the fact that Her Majesty the Queen has completed the fiftieth year of her prosperous reign. This splendid representative assem- blage, all alive with patriotic enthusiasm, at- tests the affection and devotion of our people for the person and throne of Her Most Gracious Majesty. We celebrate on this occasion no ordinary event. From the time of William the Conqueror to the present, only three British sovereigns besides Queen Victoria have attained the jubilee years of their reign. Henry the Third reigned 56 years; Edward the Third, 50 years; and George the Third, the grand- father of the present Queen, 59 years. More than ordinary interest should naturally attach to such an event in the case of any ruler of the empire, and that interest should be specially emphasized in the case of a monarch so dis- tinguished for personal qualities and so unsur- passed in strict adherence to constitutional methods as Queen Victoria. (76) GROWTH OF THE EMPIRE. 77 This is naturally a time for retrospect and < omparison. What were we as a nation or as a dependency in 1837? What are we in 1887? In methods of government, in knowledge of arts and science, in material growth, in tin- conditions of our political and commercial re- lations with the rest of the world, have we retrograded, have we been stationar}*, or have \\ made satisfactory and substantial advamv ': These are pertinent inquiries they belong to an occasion such as tins, and with your per- mission I shall attempt to answer some of them. It has truly been said that ours is A land of old and fair renown, Where freedom broadens slowly down From precedent to precedent. The broadening down process in our history of tin- last half century has been by no means slow or unsatisfactory. During that period there have been intense activity, keen competi- tion, and abundant success. 'Material increase, intellectual culture, scientific discovery, the harnessing of nature's forces to mechanical in- vention for man's convenience and comfort, have had greater development during the Queen's reign than during any one hundred years previously. Amid the exuberant cir- eiimstance's attendant upon such a celebra- tion as this the stirring music, the expectant 78 FIFTY YEARS A QUEEN. throng, the sympathetic listener one is very apt to be tempted into exaggerated laudation. I hope to escape that criticism, and yet I am certain a sober statement of what our nation has done, and its relative position to-day among the nations of the world, must cause satisfac- tion, admiration and gladness to fill every patriotic heart. When the Queen ascended the throne her Colonial subjects of European descent were under two millions, now they are nine millions; of Asiatic descent in her Indian empire, 96,- 000,000, now 254,000,000 ; and her subjects of other origins in the colonies and dependencies were 2,000,000, now they number 7,000,000. In other words, her Colonial and Indian sub- jects in 1837 were 100,000,000, now they have increased to the immense proportions of 270,- 000,000. The material growth of the empire has more than kept pace with the increase of population. Her Majesty's reign has been especially rich in mechanical invention and applied science, in sanitary and economic im- provements. The application of steam as a motive power in traversing continents and oceans belongs to the past fifty years, while the practical use of electricity is yet in its in- fancy. Morse first publicly exhibited his tele- graph in 1837; he fyled his caveat for a patent GROWTH OF TIIK K.MIMKK. 79 in that year, but it was not patented till 184". Tin- telegraph \va> fir.-t brought into practical ii-c ill 1*44, that being the year tin- cities of' Washington and Baltimore were connected by the ele.-tnc wire. There was no electric tele- graph in use when Victoria began her reign. Twenty years ago there were only about 2,000 miles of submarine cable laid throughout the world: to-day there are 107,000 miles, costing $185,000,000, and all this vast system of sub- marine cables, with the exception of 7,000 miles, is entirely under British control, and is the result of private enterprise. There are also 1,750,000 miles of land cables in existence to-day, and these have been laid at an estimated - t of $260,000,000. The first telegraphic message sent over the wire in this province wa- in April, 1851, from Mr. John Wilson, at St. Andrews, to Dr. William Uayard, in St. John. These electric nerve centres have practically annihilated space and brought all parts of the world into dose contact. A debate in the im- perial parliament any night is the next morn- ing read and discussed at the breakfast table throughout the empire. While the opening of the .-team railway, in lx:',0. between Liverpool and Manchester may be claimed, and rightly so, to have inaugurated the system as a com- mercial enterprise, yet the development of steam 80 FIFTY YEARS A QUEEN. power by land and sea, for locomotion and for mechanical and industrial pursuits, has taken place during Her Majesty's reign. The first railway company incorporated in this province was the St. Andrews and Quebec Railway, on the 8th March, 1836. It was the only one in- corporated in this province prior to the Queen's accession. Since then, especially after 1851, railway incorporation acts strew the pages of our statute book almost as profusely as forest leaves the ground in the late days of autumn. In looking over the names of the incorporators in the early acts, one is struck with the changes time has made. Xot one of the incorporators of 1836 is alive now ; and in the act of 1851, in- corporating the European and Xorth American Railway, but few now survive our respected Lieutenant Governor, Sir Leonard Tilley , J whom we are glad to have with us at this time, is one of the few survivors. As late as 1852, in our own House of Assembly, in a debate on rail- way resolutions, a prominent representative from Kings County frankly admitted he had never seen a railway. Thirty years ago we had no line of railway into St. John. To-day we have in this province nearly 1,400 miles of railway in operation or under actual construc- tion, intersecting it in all directions. In pro- 1 Died June 25, 1896. GROWTH OF THE EMPIRE. 81 portion to population, I believe we have a greater railway mileage than any other country in the world. The new lines proposed, many of which are already incorporate 1. and which their projectors, relying on local and federal subsidies, fully expect to build, will, when com- pleted, about double the mileage we already have. Fifty years ago a steamship had not cro ! the Atlantic. The year Is: 5s is memorable in history. On the 4th of April of that year the "Sirius" sailed from Cork, and on the 8th of the same month the " Great Western " sailed from Bristol bound for New York. Both ves- sels reached their port of destination on the 23rd of April the "Sirius" twelve or fifteen hniirs in advance of the "Great Western." These were the pioneer steamships to cross the Atlantic ocean. The change since then has been truly marvellous. Magnificent floating palaces, capable of steaming twenty miles an hour richly freighted with the products of all climes and all lands carrying tens of thous- ands of passengers in pursuit of pleasure or gain, are now thickly studding every sea, and are almost hourly arriving at or departing from the great seaports of both continents. This facility of transit and communication has drawn the nations of the world closer together mul- F 82 FIFTY" YEARS A QUEEN. tiplied their exchanges of products, and created an inter-dependence and intimate acquaintance far beyond that of any former time. Cowper's lament Lands intersected by a narrow frith Abhor each other. Mountains interposed Make enemies of nations who had else Like kindred drops been mingled into one, may have been true a century ago, but not so to-day. Enlarged knowledge and easy and frequent intercourse have fostered and stimu- lated the mercantile spirit of the age, and in that progress no nation has reaped more abund- antly than the British empire. A few com- parisons will establish my statement. The figures are taken from statistics of the year 1837 and 1885, no later statistics than 1885 being convenientlv available. o / In the American dependencies the imports have risen from $26,000,000 to $128,500,000; the exports from 25,000,000 to 107,500,000. In the Australasian colonies the imports have risen from $7,500,000 to 317,500,000; exports from $6,500,000 to $260,000,000. In Africa the imports have risen from 10,000,000 to $50,- 000,000 ; exports from $7,500,000 to 60,000,- 000. A large proportion of this colonial trade has been done with the United Kingdom. The total imports and exports are eleven times GROWTH OF T1IK K.MI'IRE. 83 greater now than in 1837. British imports to the colonies in ls:J7 were $56,500,000; in 1885, $272,500,000. British shipping trade with the colonies in 1835 was 3,700,000 tons; in 1885, ..';.000,000 tons. In 1885-6 the sea-going registered tonnage of the world was 6 million tons ; and 4J millions, or more than two-thirds of the whole amount, belonged to the British empire. In view of these expressive figures, we may well exclaim with pardonable pride: " Britannia needs no bulwarks, No towers along the steep, Her inarch is o'er the mountain waves, Her home is on the deep." I would like to speak of our great progress in the production of books and newspapers and consequent dissemination of knowledge, but time will not permit. I can only glance hastily, and consequently imperfectly, at some of the political problems of the reign. Dark and threatening clouds hung in the politieal sky when Her Majesty became Queen. Canada was in rebellion, and the Chartist movement in Kni;land was not only causing grave apprehen- sion, but had actually broken out into deeds of violence and bloodshed. Lord Durham was sent to Canada to get information and report. It is no exaggeration to >ay hi- report is one of the ablest state papers ever written. It grai- 84 FIFTY YEARS A QUEEN. pled with the difficulties in Canada, and it propounded political principles which, since acted upon, have blossomed into representative institutions and responsible government for all the considerable colonies of the empire. Res- ponsible local self-government for the colonies is one of the great facts of Queen Victoria's reign. The Chartist movement died out. The prin- ciples it espoused, viewed from the standpoint of the present, need not have caused any alarm. The charter contained six principal planks universal suffrage, vote by ballot, an- nual parliaments, the payment of the members of the House of Commons, the abolition of their property qualification, and equal electoral districts. These are not propositions to frighten people of the present generation. In fact, two of them have already become law in England ; three of them fully, and four partially, in Canada. Payment of members of the imperial parliament would not, I think, shake the tim- ber of the old constitution very much. It ha.s worked so well in Canada there is a feeling among some of the recipients that it would add strength and dignity to the constitution to in- crease the indemnity. The tendency of the past fifty years has been to centre political power in the people. The successive reform bills have given the franchise to hundreds of thous- (SROWT1I OF THE EMPIRE. 85 :unl> \\lui \\t-re formerly denied it. Formerly tin- ruling pouvr \\ as found in the House of Lords; to-day that power is decidedly with the ('ominous. In the first cabinet of George m, thirteen members were in the Lords and only one in the Commons. A cabinet so construct- ! at the present day could not live a week. The reform bills of 18B7 and 1885 made very large additions to the electoral lists over two millions and by that much added to the power of the people. Going back for a little over tifrv v.-urs. and the list of reforms is a splendid on.-. Catholic emancipation in 1829; the re- form bill of 1832 ; the repeal of the corn laws, and tin- navigation acts; the factory laws for tin- protection of women and children ; the reform bills of 1807 and 1885 : the disestab- li>lnnent of the Irish Church; the great ad- vance in a system of national education ; the opc-niiiir of the universities to all classes and creeds; and the reform in the administration of loth civil and criminal law, have all, with but two exceptions, taken place since the Queen began IHT reign. CM fortunately, there is discontent in Ireland. All attempts thus far have- failed to bring con- tent and happiness to that portion of the em- pire. This is not the place to discuss the Iri-h question. VS r e all regret the present position 86 FIFTY YEARS A QUEEN. of affairs, knowing well that the English meth- ods of government in the past have not given peace to that unhappy land. Let us earnestly pray that British statesmanship may ere long successfully solve this hitherto apparently in- soluble problem in such a manner as to remove, all causes of discontent without impairing the integrity of the empire. England has had but two wars of any mag- nitude during the Queen's reign that with Russia in 1854, and the terrible Indian mutiny in 1857. No great practical advantages came of the Crimean war. It, however, taught our great rival in the east that the men who fought at Inkerman and Balaclava were w r orthy des- cendants of the sires who fought on the plains of Abraham and on the field of Waterloo. The lesson may also have indefinitely postponed the appearance of the Russian eagle at the Khyber Pass, and the advent of the Russian iron-clad into the Persian Gulf. The Indian mutiny will alwaj's stand out in ghastly relief. It brought into prominence a splendid array of military chiefs of whom any age or country might well be proud. The political effect was to transfer to the crown the complete government of the country. The East India Company ceased to rule in India. But thirty years have produced a splendid GROWTH OF Tin: KM i-iK i-:. 87 change for the future peace and prosperity of that extensive portion of the empire. In 1857 the people of India, led by their hereditary princes, were waging a cruel and relentless war to throw oft' British supremacy ; in 1887 only the memory of that terrible crisis remains, while many of the great feudatory princes are now in London pledging fealty to their Em- press-Queen and heartily joining in the Jubilee celebrations. A recent English writer has pointed out >onicwhat fancifully, but with constitutional accuracy, that the sovereign of the British em- pire is immortal, infallible and omnipresent! Do not allow yourselves to be startled at these propositions. The sovereign is immortal, as it is a constitutional maxim "the king never dies," the succession is never interrupted; in- fallible, as under our system of government " the king can do no wrong," there must always be advisers responsible for the acts of the crown ; omnipresent, as the Queen in per- son, or by deputy, is always present in her courts administering justice. The life of the Queen is not by any means an idle one. It is said she reads all the, des- patches, particularly those relating to foreign attairs, and to the army and navy. Lord I'almerston once lost his post of foreign seere- 88 FIFTY YEARS A QUEEN. tary for neglecting to submit a despatch to the Queen before sending it. It is also a mistake to suppose the Queen has . no great powers in the administration of affairs. Those powers are great, although rarely exer- cised. By virtue of her prerogative, a few years ago she abolished purchase in the army after the Lords had refused to pass a bill for that purpose. She is the fountain of honor, and could, if so disposed, create all her subjects peers of the realm. While she cannot increase her army and navy beyond the limit allowed by parliament, yet she could disband the army and navy altogether. She can declare war and conclude peace without the intervention of par- liament. She can veto any bill passed by both houses of parliament. It would be a danger- ous exercise of power, and has not been exer- cised by any British sovereign since the days of Queen Anne. The house of commons can also refuse supplies to the crown, but the right has not been exercised since 1688. One of the chief glories of Queen Victoria's reign has been her great regard for constitu- tional government. A slight mistake natural under the circumstances was made in the early days of her reign in the case of appoint- ments of officers of her household; but it is now universally admitted the contention of Sir Robert Peel was right. GROWTH OF THE KM I'll:!-:. 89 Mueh of our political liberty and material prosperity is due to the wise and conscientious discharge of duty on the part of the Queen. Our country has made rapid strides in all that makes a nation great and powerful. Our posi- tion is a commanding one among the common- wealth of nations. The achievements of the past are ours. We are " heirs of all the ages " in art-, -< -ieiiee and literature. In the _ social, intellectual, and material development of the world we have abundantly shared. \\V can therefore look to the future of our country with hope and confidence. We possess a great advantage over those of 1837. The Victorian age will, in the future, be looked l>aek to as one \\orthy of emulation. The \vrdiet of history will he that our noble Queen, 1>\ her purity of life, by her sympathy with her people, by her active co-operation in all givat popular reforms, has added dignity and lustre to the British crown. The flag that floats from yonder tlai^tatf, in one sense, is nothing but a piece of colored bunting; but in another, and a higher and nobler sense, it is that and very much more. It is the Hag of our country. It repiv-eiit.- tli' wealth, the culture, the energy, the power, the Christian eivili/.ation of the mightiest empire the world has overseen. May <,|iieeii Victoria long he -pare. I in health and in strength to rule over this extended empire. III. SIXTY YEARS A QUEEN. AN ADDRESS DELIVERED IX THE ST. ANDREWS RINK. -T. JOHN, N. B., JUKE 19, 1897, HIS WORSHIP MAYOR GEORGE ROBERTSON IN THE CHAIR, THE MEETING CLOSING AT 12 O'CLOCK P. M. The time at my disposal is very short, and forbids introductory or preliminary remark. 1 When the fifteen or twenty minutes allowed me have elapsed, His Worship the Mayor will be good enough to call me down, and what I may have left unsaid, and it will be much, can in part be said at some other time. When we celebrated in this city, ten years ago, the Jubilee year of Her Majesty's reign, I had the great honor of being one of the speakers. At that time even, it was possible to assert, that through the many centuries of English history, from the earliest periods, only three English sove- reigns beside Her Majesty could have cele- brated the jubilee years of their reign. If the circumstances ten years ago were important and exceptional, and worthy of patriotic com- memoration, the present occasion is still more striking and unique. The Queen completes to- day sixty years of a prosperous and progressive 1 The other speakers were His Worship the Mayor, Lieu- tenant Governor McClelan, J. D. Hazen, Q. C., and J. V. Ellis, M. P. (90) COLONIAL DKVKI.ul'.Mi !1 rule the longest in the history of our nation ; and, so far a> 1 now remember, the longest in the history of any civilized nation, saving the seventy-two years of Louis the Fourteenth. The French king, however, came to the throne when but five years old, and for a considerable period there was a regency. It cannot, there- fore, be successfully claimed that he really reigned longer than Queen Victoria. It would be quite impossible at this time to glance even at the many prominent features of the reign. I have accordingly thought it beet to direct your attention to a single phase the great colonial development of the empire during the period under review. This sexagenary is being celebrated throughout the wide bounds of the empire, and it is safe to say that in no portion of that empire is the enthusiasm more genu- ine, or the loyalty more devoted, than in the colonies. England, for three centuries past, has been the world's great colonizer. Spain, Portugal, and Holland even, had entered upon sun-,- ful careers of colonization years before Kng- land had a single colony. Through force of circumstances, through the enterprise and dar- ing of their navigators, these nations had acquired the ownership, and had entered into the occupancy of all known territories available 92 SIXTY YEARS A QI'EEN. for colonization. The sceptre of colonial pre- eminence has, however, long since been wrested from these nations, and that sceptre is now held by Great Britain. When Sir Francis Drake, in 1588, defeated and scattered the great Armada, he struck the first decisive blow giving England an ascendancy beyond her island home, and at the same time sounded the knell of Spanish decadence. The victory of La Hogue, a century later, decided Eng- land's naval supremacy over France a supre- macy which has continued from that time to the present. Only the great Magellan before Drake " put a girdle round the earth," but he died on the voyage. Drake was the first navi- gator to accomplish the task of penetrating the " mare tenebrosum," of lifting the veil from the " sea of darkness," and sailing round the globe. Prof. Sir John Seeley, in his excellent work " The Growth of British Policy," more than suggests that the victories I have named laid the foundations of our colonial empire and of our naval supremacy. How fitting, then, that the country which produced such men as Drake, Blake, Hawke, Rodney and Xelson, should become the fruitful mother of nations and the proud mistress of the seas. It is no boastful exaggeration to assert that Great Britain, as a naval power, has no equal among COLONIAL HK\ KI.OI'.MENT. 93 the nations of tin- world. Her naval supre- macy is tin basis of her colonial pre-eminence, and her colonial pre-eminence is the pledge and guarantee of her continued naval supremacy. Three hundred years span the period from Kli/.abcth to Victoria. Mighty changes have been wrought during the intervening time. It is more than a coincidence that the first snh- Mantial beginning towards laying the founda- tions of our colonial empire was made during the reign of a ljueen, the last of the Tudor line; and that the greatest expansion and high- est development of that colonial empire ha\e also been attained during the reign of a Queen the present representative of the House of lirunswick. These are noteworthy facts in con- nection with the movement to give to women a larger space than heretofore in the political affairs of the country. The length of the reign we celebrate is im- portant and exceptional, but the vastness and imperial grandeur of the empire are more re- markable than the length of the reign. Scan, if you will, the pages of history, ancient or modern ; peer, if you can, through the twilight and beyond, into the regions of pre-historic times, and you get no knowledge of empire BO v.i-t. so imperial, so pui>>ant. in arts, in science. in commerce, in government, in all that en- 94 SIXTY YEARS A QUEEN. nobles mankind, and makes a nation great, as we see to-day in connection with the British empire. The forces and resources of nature were never at any former period so fully under man's control as at present; civilization, with all implied in the term, has never before touched so high a level as we see to-day. When the Queen began her reign her em- pire contained not more than 125,000,000 of people; now that empire, including protector- ates, covers 11,500,000 square miles of the earth's surface, and commands the allegiance of 385,000,000 of people. This marvellous growth may be seen in her tonnage, for that represents the commerce of the nation, and its trade and industrial relations with the rest of the world. In 1837 the empire had something under 2,800,000 tons of shipping; now it has over 10,620,000 tons, or nearly four times as much as sixty years ago. Then the imports into the United Kingdom were 57,230,968 stg. ; now 480,604,788 stg. Then the exports from the United Kingdom were 97,621,549 stg. ; last year they had risen to 285,094,268 stg. The total trade of the empire in 1896 was: imports, 690,539,806; exports, 499,- 126,601. In naming these sums it must not be forgotten that the price level of the world is much lower now than in 1837. But our COLONIAL DEVELOPMENT. 95 attention miiM 1'c more directly concerned \vitli India and tlu- colonies. Those who were BO fortunate as to listen to Joseph Cook in this city some years ago, must have been struck with a remark he made as to India. Discuss- ing with Thunder Sen the possibility of that country again attempting to throw oft' allegiance todreat Britain, the distinguished Kast Indian declared to Mr. Cook that "India could not now, if she would, throw off* that allegiance, and, twenty-five years henee, she would not if she could." The reason assigned was that, under British rule, the government was mild and free, and security of life and property was amply guaranteed. The peasant who tills the soil feels secure in the possession of his har- vest ; the merchant who exposes his goods for sale knows that the strong arm of the law will protect him from plunder, ami aid him in reap- ing the legitimate gains of his exchanges. It was not always thus in that portion of the empire. When native princes held sway no class felt safe from their inordinate exactions. The colonies and India, in 1837, had a popula- tion of 100,000,000; now fully 308,000,000, or more than three times as many as when the (Juecn began her reign. Our colonial popula- tion, exclusive of India, is 1*0,000,000 of people. For the purpose of estimating approximately 96 SIXTY YEARS A QUEEN. the growth and development of our colonial empire, it will be sufficient to take note of the three principal groups : (1) The North Ameri- can possessions ; (2) The Australasian : (3) The South African colonies. The populations of these groups in 1837 were under 2,000,000; now they contain fully 15,000,000 of people. At the beginning of the reign Canada had about 1,400,000; Australia about 340,000; and South Africa 140,000. Each of these groups has to-day over 5,000,000 of people, a very satisfactory increase indeed. The British flag was first raised in Australia as a colony in 1788 less than fifty years before the Queen came to the throne. South Africa has risen into importance during the last twenty-five years. I ask you to look at yonder map. 1 It is well dotted with red, but those red spots are not large enough on the continent of Africa. In the interests of that country, as well as in the interests of civilization, it would be far better if Great Britain ruled that continent. I do not wish to weary you with figures, but colonial expansion cannot adequately be told without resort to statistics. The present rail- way mileage of the empire is 75,000 miles. India has 20,000 miles of this, and the colonies 1 A map of the world, showing the British possessions in red colors, hung at the rear of the platform. COLONIAL DEVKI.ol'.Mi !7 :;i.iini) iniK-s. of the latter amount Canada has something over 16,000 miles, 1 nearly one- half of the entire railway mileage of the colo- nies. The same growth may be seen in con- nection with steamship lines, and telegraph and telephone systems. The telephone was, I be- lieve, first used in Canada. The iirst telegraphic message was sent over the wire in this province in 1851 to our highly esteemed townsman, Dr. William Bayard, the active and energetic, and, I had almost said, youthful president of our Loyalists' Society.* We are all glad to have him on the platform upon this interesting occasion. In 1837 railways, ocean steamships, cables by land and sea, and telephones, were unknown as instruments of transit and ready communi- <-ation. An English author of repute, as late as 1846, seriously advised the Imperial government to abandon New South AVales as a penal settle- ment, and to send transported convicts to 1 These figures are taken from the Statesman's Year Book of 1897, and they correxpond with the figures given in the Statistical Year Book of Canada for 1896, p. 230, since pub- lished. 2 Dr. Bayard is in the eighty-fourth year of his age, and still maintains his foremost position in the active practice of his profession. At the close of the meeting, in a stirring speech, he moved a vote of thanks to the speakers, which was seconded by Judge Forbes. a 38 SIXTY YEARS A QUEEN. Canada. The reasons assigned by him for the proposed change were that in Xew South Wales the penal colony \^as near the coast, and the chances of escape were therefore easy ; but if the convicts were sent several hundreds of miles into the interior of Canada, it would be extremely difficult for them to tind their way out, in case of escape. "Well, what has been the growth of these confederated colonies which Mr. Porter 1 thought good camping ground for transported convicts? In 1837 their imports were $15,500,000 ; in 1896, $1 18,000,000. Their exports then, $9,914,155; now, 121,000,000. Stating the case in another form, the total trade of the provinces now forming the Dominion, in 1837, was under $25,000,000 ; in 1896, over $239,000,000. Great railway lines now traverse our country, opening up vast tracts of territory to settlement, which, sixty years ago, knew only the Indian and the buffalo. But time forbids further reference to this phase of our subject. The theme is grand and inspiring, and yet we have only touched the fringe of the topics which so naturally, and so eagerly, spring to the lips seeking utterance. Thus far we have noted national progress and expansion. It is now in order for us to look for a moment at the improved methods 1 Progress of the Nation, 2nd ed., p. 131. COLONIAL DEVELOPMENT. 99 of government adopted in the colonies during the present reign. This examination involves a survey of the colonial policy of the mother country, and the corresponding political and MM-ial development of the colonies. The old colonial policy, especially that of continental Europe, looked upon the colonies as close pre- serves, to he held for what they were worth to the parent state. The development of the colony, for the benefit of the colony itself, rarely entered into the calculation. Those who left the parent state and migrated to the colony were supposed to have gone to better their fortunes, and they, in many cases, had the in- tention of returning when fortunes were made. After the American revolution any such policy on the part of Great Britain was wholly aban- doned. Sir Robert 1 Yel, as long ago as 1842, said that colonies should, as far as possible, be treated as though they were integral parts of the kingdom. This was before the grant of self-government to the colonies. The effort, especially during the last fifty years, has been to make the colony in methods of government, in social life, and in business and industrial activity, a counterpart of the parent state. This policy has given free scope to the inde- pendent activity of the colonies, and has pro- duced the satisfactory results we see to-day. 100 SIXTY YEARS A QUEEN. When the Queen came to the throne there were Chartist riots in England and rebellion in Canada. All questions occasioning those diffi- culties have been happily settled. The points of the Charter have been substantially granted by the Imperial parliament, except payment of members of the House of Commons ; and re- bellion in Canada has given place to loyal devotion to the Crown. Wise and prudent statesmanship has accomplished these happy results. How apt the language of the late poet laureate : "And statesmen at her councils met Who knew the seasons when to take Occasion by the hand and make The bounds of freedom wider yet." The reign, considered from the standpoint of constitutional development, may naturally be divided into two parts. The first part ends about the year 1856, and the second extend* from that period to the present. In 1837 the territorial and casual revenues of this province were first handed over by the Imperial gov- ernment to be managed by ourselves, under a legislative agreement that the province should provide a civil list for payment of administra- tive expenses. The colonies were governed from Downing street through the agency of a Royal governor. That official selected his own COLONIAL 1>K\ KI.Ol'MKNT. 101 .\.-riitive council, and that council was not in any way responsible to the people's represen- tatives. The executive council usually was composed of the same members as the legisla- tive council, and in this way the governor and council wielded large administrative and legis- lative powers, irrespective of the wishes of the -elected representatives. This state of affairs wa- largely responsible for the rebellion in Canada in 1837. Lord Durham was sent to Canada that year to investigate and report. In consequence of misunderstanding with the home government, he returned to England in 1838. His report on the subject of his mission _i\ -n to the public in 1839, and in 1840 he died. His almost pathetic statement that pos- terity would do' justice to his memory has been amply vindicated. In his now celebrated report he grappled with the colonial discontents and difficulties. His report was not confined to the solution of the Canadian problem, but to the colonies in general. He laid bare the evils of the system which then prevailed, and sketched with a masterly hand the remedy to be ap- plied. He strongly advocated the introduction of a system of government similar to that then prevailing in England the responsibility of the ministers of the Crown to the representa- tives of the people. His recommendation, in 102 SIXTY YBARS A QUEEN. the face of vigorous opposition, final ly pre- vailed, so that by 1856 all the great colonies of the empire were in the enjoyment of respon- sible government. Since then all these colo- nies have governed themselves, in accordance with the well understood wishes of the people, subject, of course, to the paramount supremacy of the Crown The evils predicted to follow the introduction of this system of government into the colonies have not come to pass. On the contrary, the benefits have surpassed even- the expectations of its most sanguine advocates. The colonies, under this system, have been working out the great problem of self-govern- ment in harmony with a central and imperial power. The result thus far has been eminently satisfactory. The attempt at 'self-government has gone beyond the experimental stage. In no part of the world have the people greater political freedom and personal security than in the self-governing colonies of the British em- pire. Our political methods are more demo- cratic, more responsive to the popular will, than are those of our neighbors to the south, of us. With us a cabinet for continuance in power must depend on the uninterrupted sup- port and favor of the House of Commons; with our neighbors the cabinet depends on the will of the President, quite regardless of the COLONIAL DEVELOPMENT. 103 attitude of the House of Representatives. And it is because of tin- I claim our system of gov- ernment, in practical working, is more demo- cratic than that of the United States. Thirty or forty years ago leading Briti.-h men seriously discussed the propriety of allowing the colonies to sever the tie of allegi- ance to the Crown. The theory was put forth that colonial dependencies were a source of wcakn.-.-s to the mother country, and not a bond of strength. These statements, which were avowed with more or less ability and per- sistency, \veiv not calculated to Matter colonial pride, nor stimulate colonial patriotism. But that condition of affairs has happily ceased to exist. We hear no such expression of opinion now. The old time Manchester and Birming- ham school of political thought has closed it- doi.rs and gone out of business. Joseph Chamberlain, the radical of former years, has become the powerful exponent and champion of the Imperial idea. Tin- public men of the "little island " range- of political vision in tin- old land have moved off the stage of public- life. (Ireat Britain and her colonies stand loser together, and have more in common, than at any past period in their history. And it is right that such should be tin- case. Inheri- tors of her institutions, her history, her litera- 104 SIXTY YEARS A QUEEN. ture, her glorious past, we, as colonists, feel an ever-increasing glow of affection for the motherland beyond the sea. The imperial idea is in the air ; it has taken hold of the thought of the empire. It acquires strength by lapse of time. Singular would it be if it were other- wise. " Shall we not through good and ill Cleave to one another still ? Britain's myriad voices call ' Sons be welded each and all Into one imperial whole, One with Britain heart and soul, One life, one flag, one fleet, one throne.' " What a splendid spectacle can be witnessed at this very time in London ^ The capital of the empire is extending hospitality to the great and titled of all lands. Its historic monuments have looked upon many an epoch-making page- ant, but upon none more important than the present. The premiers of the colonies, from all climes and from all quarters of the globe, are there, not at the command of military or arbitrary power, but voluntarily, and from a sense of loyal duty, to pay homage and fealty to Her who has so worthily worn the crown, and so wisely ruled our vast empire for full sixty years. Canadians have especial reason to be proud. The "maple leaf" has been assigned the place of honor. Amid the coro- MI. (.MAI. i'i:\ I:I.O|'.\II:M. In.") of the titlft' print-fly lineage, no one among the throng receives greater honor, or attracts more atten- tion, than WILFRID LAURIER, the prime minis- ter of Canada. 1 We all, irrespective of party politics, send our thanks across the sea for the honor thus conferred upon Canada in the per- son of her premier ; and we all join in tin- prayer for the continued health of Her Majesty, and the ever-increasing prosperity of the em- pire. 1 Now, by reason of honors conferred at the time, the Right Hon. Sir Wilfrid Laurier, G.C.M.G., etc. IV. AIM OF LEGISLATION; MATERIAL DEVELOPMENT OR MORAL IMPROVEMENT? AX ADDRESS DELIVERED BEFORE THE FACULTY AND STUDENTS OF THE UNIVERSITY OF NEW BRUNSWICK, AT FREDERICTON, N. B., MARCH 12, 1895. Some months ago Professor Davidson ex- tracted a promise from me to be one of the lecturers in this year's course. I am here this evening in fulfilment of that promise. I desire in the first place to assure my young friends of the University that it gives me very great pleasure, at all times, to be instrumental in advancing, even in an humble way, the educational and intellectual life of our Pro- vince. I still cherish vivid and pleasant recol- lections of my own student life at Mount Allison University, and I sincerely trust I may never forget how to appreciate and enter into the feelings and aspirations of those pursuing undergraduate courses of study. The subject for consideration this evening is " The Aim of Legislation Material Development or Moral Improvement ? " The theme for discussion was selected for the speaker; it was not his own choosing. And yet if I had selected a topic (106) MATERIAL DEVKUH'MENT. 107 for dUciission, it would have been difficult to have chosen one more appropriate or more practical. After engaging for several weeks in the active work ot legislation 1 , what more profitable or interesting than to turn aside for an hour or so, amid the quiet of these Acade- mic halls, to discuss the theory of legislation the aims-ouirht and the objects to be attained ? Many of you, no doubt, have listened from the galleries of the Parliament building to earne-t and warm discussion upon the various subjects which, during the session just closed, have engaged the attention of the collected legis- lative wisdom of our Province. In many instances you ma}* have felt that the sean-h was not singly after truth as revealed by un- clouded reason. You may have thought that the quest for reaching correct conclusion was occasionally hindered by desire for party ad- vantage. \Vithin the halls of such an insti- tution as this we meet to discus- questions without bias, without party predilections; and with, let us hope, a sincere desire to know the truth. The range of the University curriculum is now broader and more compivhen.-ive than it was a halt', or even a quarter of a century a-n. The necessities of the age require that such should l>e the case. We study the present as 'The Legislative Assembly was prorogued, March 5, 18'J~>. 108 AIM OF LEGISLATION. well as the past. It is as important, that every liberally educated person should understand the scope and limitations of his country's insti- tutions, as that he should possess a critical knowledge of the political functions of the Amphictyonic League or the Achaian Assem- bly. In saying this, no reflection is intended to be cast upon classical culture; on the con- trary, I desire to emphasize the desirability of its attainment. Civilization is a development, a growth; it is not a manufacture. The progress of de- velopment is well marked, from hunter and herdsman to husbandman and artificer. By no process of rapid evolution can the nomad of yesterday be transformed into the bull or bear of the stock market of to-day. In the hunter state men are scattered ; they subsist by the chase, and require but few rules and laws to govern their intercourse with each other. The patriarchs of old were the law givers to those under their control. The legislative, judicial and executive functions were all centred in them. In those days the family was the unit in the state. When property accumulated, when men became tillers of the soil and ceased "nomadic life, when the individual became the unit in the state or community, the need of protection to life and property became appar- M\li:i;l.\L DEVELuI'MKM. 109 t-iit. I am not railed upon at this time t< di ,!id define the terms "society" and "state." and tin- many and various theories as to their origin; u whether spontaneous or miraculous, whether by divine agency or by a social com- pact." Speaking generally, there are t\\<> views a- to the origin of society. Aristotle and those who think with him contend it arose by nature, while Hobbes and his school hold it arose from compact. It is not neces- sary to detain you to consider either theory. It is quite sufficient to know that society exists, that people are living together in com- munities, and that laws or regulations are imperatively required to control and govern. At this stage the question naturally arises: What is law ? By this I mean the rule or regulation society sets for itself in the govern- ment of the varied relations of its members. Professor Sidgwick, in a recent work ' follow- ing Austin, says : "A law, in the more general sense, may be defined as a command to do or abstain from doing a certain class of acts issued by a determinate person or body of persons acting as a body, and involving the announce- ment, express or tacit, of a penalty to U- in- flicted on any persons who may disolu-y tin- commands, it being assumed that the individual 1 KlemenU of Politics, p. 16. 110 AIM OF LEGISLATION. or body announcing the penalty has the power and purpose of inflicting it. Such commands, when issued directly or indirectly by the sove- reign of the community to which the command is addressed, are positive laws in the strictest sense." Blackstone defines municipal law as " a rule of civil conduct prescribed by the supreme power in the state, commanding what is right and prohibiting what is wrong." Chan- cellor Kent declares it to be a " rule of civil conduct prescribed by the supreme power of a state." It is not necessary to remind you that un- written preceded written laws. The former, however, were none the less binding because unwritten. Laws in a country may exist and possess authority from usage, religious observ- ances, decisions of courts, writings of those skilled in the science, and from legislation. " Statute law," says Kent, " is the express writ- teji will of the legislature, rendered authentic by certain prescribed forms and solemnities." The great body of laws in every civilized country to-day is the statute law, that law ordained by the sovereign legislative authority of a country. The different legislative bodies throughout the world are annually busily en- gaged putting upon the statute book laws hav- ing for their objects the attainment of all sorts MATERIAL DEVELOPS! i 111 and conditions of things. The opening up of a .-I MI lit ry to settlement, the bridging of rivers and .-tivams, tin.- const ruction of railroads, the incorporation of companies for educational, religious, and commercial purposes, sanitary laws, compelling the observance of rules relat- ing to health and preventing the spread of disease, and numerous other objects are con- tinually claiming legislative intervention. My subject requires that I give some idea of the aim of all this legislation, or rather what ought to be its aim. \V r hat principle, what motive, should underlie legislative enactment ? The principles of morals and legislation were dis- cussed with great force and acuteness by Jeremy Bentham more than a century ago; and since his day many eminent writers have traversed the same domain of investigation with greater or less ezhauetiveness. Bentham grounds his views upon the principle of utility. 1I<- defines the principle of utility to be "that principle which approves or disapproves of -ry action whatsoever, according to the ten- dency which it appears to have to augment or diminish the happiness of the party whose interest is in question ; or what is the same thing in other words, to promote or oppose that happiness." 1 He applies this principle to 1 Principles of Morals and Legislation, Clarendon Press, Oxford, 1879, p. 2. 112 AIM OF LEGISLATION. every action whatsoever, not alone every action of a private individual, but likewise every mea- sure of government. By utility he means " that property in any object whereby it tends to produce benefit, advantage, pleasure, good, or happiness ; " or its converse, " to prevent the happening of mischief, pain, evil, or un- happiness to the party whose interest is con- cerned; if that party be the community in general, then the happiness of the community ; if a particular individual, then the happiness of that individual." It may therefore be de- duced from Bentham's theory of legislation that the great primary object of thelegislature should be to enact laws tending to promote happiness, or to avert its opposite. Mr. Justice Markby, 2 in a recent work, is by no means optimistic as to the power of legislation to secure happi- ness. He says : " If instead of saying that we ought not to take utility as our guide in legis- lation, it were said that legislation, even with utility for its guide, is, after all, but a feeble instrument of happiness, I should be much more inclined to agree. I take it, however, that this is not because we have chosen the wrong principle to guide us in legislation, but because legislation can never, under any cir- 'id,p.2. 2 Elements of Law, Clarendon Press, 4 ed., p. 33. MATERIAL DEVELOI'M KM . 113 ciniistances, be a potent instrument for happi- ness. Nearly all the lawgiver can do is to remove impediments to people procuring hap- piness for themselves, and to secure thorn from being disturbed in the enjoyment of it." All law is coercive, restraining, or organizing. Hobbes declares that " law was brought into the world tor nothing else but to limit the natural liberty of particular men, in such manner as they might not hurt, but assist one another, and join together against a common enemy." Kant defines the object of law as " The totality of the conditions under which the free will of one man can be united with the free will of another in accordance with a general law of freedom." Locke states that " the end of the law is not to abolish or restrain, but to preserve or enlarge freedom." No doubt the ultimate object of every law should be the highest well-being of society. I cite the statements of these great thinkers in these departments of human study and activity, hoping that you may thereby be induced to peruse their pages at first hand and for yourselves. Instead of dwelling upon the abstract requi- sites of legislation, I prefer, tor obvious and practical purposes, to point out what has Keen aooompfiahed by legislation, and from these instances draw conclusions as to the aim and n 114 AIM OF LEGISLATION. scope of legislation in general. The ultimate aim of legislation should not only,be the high- est well being of society as it at present exists, but it should also project beyond the present, so as to conserve the well being of posterity. " What need I care for posterity ; it has done nothing for me ? " is the idle or jocular remark we often hear. If the affairs of the world were really conducted on that principle, the results would indeed be disastrous. Under such cir- cumstances we would have no interest in the prosecution of enterprises extending beyond the limited horizon of our own little lives. The great projects for the settlement and civil- ization of continents, the expansion of com- merce, and the establishment of noble charities, would remain as idle dreams. Sordid selfish- ness would naturally rule the race. We are reaping to-day largely from the sowing of past years. Take our own province as an illustra- tion. The great majority of those who, fifty years ago, planned for the progress and well- being of this province, have passed from the stage of life. Their works, however, remain. And it was intended by those who made our laws, felled our forests, and rendered the con- ditions of life enjoyable, that their works should follow them, as a benefit to those succeeding. In this age of the world wealth has so largely MATERIAL DEVELOPMENT. 115 increased, resources of all kinds under new conditions have been so greatly developed, in- tercommunication has been rendered so easy, ;u il the social, political and commercial rela- tions men sustain to each other are so compli- cated, that there must be laws, regulations, in short, legislation, to direct and protect those complicated conditions and relations. If it had not been for the fostering and protecting influence of law, wealth would not have so accumulated, and our resources would not have been so developed. The first great object to engage the state's attention is to secure abso- lute security for person and property. People dwelling within our borders must have the a-- u ranee that their lives and their property are safe under the law. If the state is unable to give such assurance, the thrifty will go where such security can be had. Thrift, accumula- tion, capital, labor, shrink from every appear- ance of lawlessness, or weakness in adminis- tration of law. The laws of a country must not only impose sanctions tor tin- <. urity of life and property, but to be efficacious there must be power behind thqm to enforce, if necessary, their proper observance. The abso- lute necessity for these conditions can be seen to-day in some despotic eastern countries. Take Egypt as an example. The natural resources 116 AIM OF LEGISLATION. of that country properly developed and pro- tected would efficiently maintain the public- services and keep the people in comparative comfort. The population, if free, would be- come industrious and thrifty. But such has not been the result in Egypt. The people are down-trodden, they are not very secure in their personal liberty, and they are robbed by the tax gatherer for so-called state purposes. In consequence of this unfavorable condition, the people refuse in large measure to cultivate the land and to engage in other productive pur- suits, as they have no guarantee that they will be allowed to enjoy the fruits of their labors. The evils endured by the people of that country have been greatly mitigated of late years through the agency of British influence. This sense of insecurity paralyzes the arm of industry, and destroys the spirit of enterprise. But while freedom of person and security of property are absolutely indispensable to the greatest individual and public prosperity, there are some modifying limitations to this state- men!. Let us look at this phase of the subject from the standpoint of material development in the light of modern legislation. Circum- stances may, and in fact do, frequently arise, where the interests of the individual and the state the public at large become antago- MATERIAL DEVELOPS! KM . 117 ni.-tir. The- individual is now the unit, and tin- aggregate of units composes the com- munity or state. While tin- individual is deeply interested in the prosperity of the state, that interest is reciprocal, as the state is also interested in the welfare of the individual. The state the aggregate of units must seek to promote the general welfare, but in doing so the rights of the individual may have to give way for the general good. The pro- position in more popular phrase is that private rights must give way to the public good. In this sense then, under existing theories and ]>ra< -tice of legislation, we hold our property a- trustees for the public welfare. While the >tate guarantees us personal liberty, and free- dom of speech and action, there is the implied Condition that we must not in the exercise of that liberty interfere with the liberty and riirhts of others. A great many notions formerly held as to the sacredness of private property have been rudely shocked by modern legislation. A man's house is said to be his castle; and in a sense that is quite correct. The (Jin-en has no right to enter without his permission and airainst his will. But the exigencies of modern improvement and enterprise have in many cases induced the legislature to grant corporate 118 AIM OF LEGISLATION. powers under the authority of which a man's dwelling may be completely obliterated. The exercise of such authority under legislative sanction became especially prominent forty or iifty years ago in England when the railway companies were constructing their lines of rail- way. We are also quite familiar with the exercise of such power in this country since the beginning of the construction of railways. The doctrine of eminent domain 1 is one with which the legal profession is familiar. It is the right or power of a sovereign state to ap- propriate private property to particular uses for the purpose of promoting the general welfare. It embraces all cases where, b} T authority of the state and for the public good, the property of the individual is taken without his consent for the purpose of being devoted to some particular use, either by the state itself or by a corporation, public or private, or by a private citizen. Judge Cooley 2 says: "It is the rightful authority which exists in every sovereignty to control and regulate these rights of a public nature which pertain to its citizens in common, and to appropriate and control individual property for the public benefit as the public safety, necessity, convenience, or x See Lewis cm Eminent Domain, p. 1. * Constitutional Limitations, 5th ed., p. 649. MATERIAL DEVELOPMENT. 119 welfare may demand." "We hold our lam Is subject to this implied right of expropriation. And this power to expropriate is now fully granted by the legislature on the theory that it is in the public interests. This right at first was sparingly given, but the principle has be- come so firmly established in our legislation that expropriation acts are of frequent occur- rence. It may with great apparent strength of reason be asked, what right has a priva in- corporation to run a line of railway through my garden, or it may be over the site of my house? The power to exercise this right is given to every railway company receiving cor- porate power fromHhe legislature. Upon what basis of reason does it rest? The theory is that the exercise of the power increases the material development of the country, adds to its rer-omvr-, and is so important in the public interests that rights of private property must give way to the paramount interests of the general public. Of late years we have seen the application of this principle of legislation ( ai li. (1 tar beyond the power of expropriation contained in railway charters. The grant of -iidi [.own- in ronm-.-tion with railway legis- lation was supported on the ground that rail- way construction, although promoted by a private company, was m'Verthele.-s a y Hobbes, and is supposed to run through all intelligent legislation. In fact there would be no freedom at all if every person did as he pleased regard- less of the rights of others. Society, under such conditions would sink into barbarism. and might, not right, would prevail. General anarchy would be the result. But legislation goes even beyond protecting man against the aggressions ,.(' hi- fellow.-, it seeks to j.rot.-.-t him against himself. It does this upon well founded principles of public policy. Man finds himself a member of society, lie is one of the units which make nj> the aggregate. The highest and best possible development of the separate units must necessarily lienefit the aggregate. This shows us how the state has 124 AIM OF LEGISLATION. a deep interest in the individual, in his power as a wealth producer, as a contributor to the public treasury, as a force against ignorance and crime. This theory justifies the enact- ment of laws to repress the liquor traffic. If you admit that the use of intoxicants lessens the producing power of the wage-earner, that it has a tendency to produce pauperism and crime the logical conclusion must follow, that society the state has an undoubted right to protect itself against the evil. ^ Legislation upon this subject is in reality an attempt to protect the individual and society against in- jury. In more euphemistic phrase, and to be strictly within constitutional limits, we say it is raising a revenue for civic or municipal pur- poses. We justify the maintenance of our public school system on the same theory. In- telligence, sobriety, capacity to discharge the duties of citizenship properly, ability to add to the general wealth, are important factors in building up a free and progressive state. We, therefore, by legislative enactment declare that the property of the whole community must contribute to place within the reach of every child the means of acquiring an education. As the state benefits by the intelligence and character of its citizens, the property within it must, in part at least, bear the burden of MATERIAL DEVELOPMENT. 125 securing these ion of particular views is injurious or dangerous to society or the state, and therefore should be suppressed. It was upon such reasoning that freedom of 1 Buckle's History of Civilization, Vol. 1, p. 23. Roee-Bed- ford Pub. Co., 1878. l 130 AIM OF LEGISLATION. religious opinion was formerly repressed, and freedom of public discussion in the press or on the platform denied. Our country has happily outgrown these views. While opinions may be deemed heterodox in both church and state we have learned that the repression of opinion or discussion will lead to graver evils than those sought to be avoided by means of restriction. While we admit all this, legislation at all hazards must .protect the public against crime, immorality and those practices injurious to the community, or to the individual. Legislation should not be in advance, or much in advance of public opinion. It is supposed to embody the collected sense of the community at the time of its enactment. There are occasions, however, when the leaders of men must act in the interest of the state, although public opinion may be adverse. They must trust to the possibility of subsequently educating public opinion up to the required standard. Laws are placed on the statute book for a purpose. They should be obeyed. One of the most unfortunate and demoralizing things which can happen a community is to have a law violated with impunity. Disregard of a par- ticular law in time begets disregard and want of respect for all law. To clearly understand the history of a country, its intellectual life and ' MATERIAL DEVELOPMENT. 131 social growth, we must consult its statute book. The historian who neglects this will fail to grasp intelligently the many and varied phases through which a country has passed in build- ing up its material prosperity, and in develop- ing its intellectual and social conditions. "While wealth cannot be created by Act of Parliament, yet wise legislation may guide and intensify the efforts of a community in the pursuit of material growth, commercial expansion, and social progress. Our systems of public edu- cation, our encouragement to agriculture, our aid to the construction of public works so as to render transit easy, all testify in favor of this view. It is the duty of the legislator to study well the conditions of the country for which he legislates, and to do that which at the time appears to be in the best interests of the public. Changing conditions may require change of method. Political science is by no means an exact science. Mr. Buckle ', a bril- liant writer and a most industrious collector of facts, in one of his gcnerali/.ations, >ays: "Poli- tics so far from being a science is one of the mo-t backward of all the arts; and the only >at'c course for the legislator is to look upon his craft as consisting in the adaptation of temporary contrivances to temporary einerg- 1 Hi>t.,ry of Civilization, Vol. 1, p. 504. 132 AIM OF LEGISLATION. encies. His business is to follow the age, and not at all to attempt to lead it. He should be satisfied with studying what is passing around him ; and should modify his schemes, not according to the notions he has inherited from his fathers, but according to the actual exig- encies of his own time. For he may rely upon it that the movements of society have now become so rapid that the wants of one gener- ation are no measure of the wants of another." These are words worthy of attentive study. Intelligently following them, in the actual work of legislation, would enure to the benefit of the state. But you must not infer from the language of Mr. Buckle that he favors political opportunism. He does nothing of the kind. Political opportunists care but little for the public weal. They fasten themselves upon a political party almost always the party in power not through any patriotic purpose, but to advance their personal interests. From what has thus far been stated, it must be evident that a legislator should possess a large and varied fund of knowledge. As stated by Aristotle, 1 in addition to this practical wis- dom, " he ought to perceive what laws are best, and what are most suitable to each par- ticular government; for all laws ought to be 1 Politics, Bk. 4, c. 1, Bohn's ed. MATERIAL DEVELOPMENT. trained, and are framed by all men, with refer- ence to the state, and not the state with reference to the laws. For government is a certain order- in sr in a state, which respects the magistrates as to the manner in which they are regulated, where the supreme power shall be placed, and what is the final object which each community shall have in view. . . . And hence it is evident that the founders of laws should attend to the different kinds and to the number of governments ; for it is impossible that the same la\vs should be fitted to all sorts of oligarchies and democracies; for of both these govern- im-nts there are many species, and not one only." Plato l placed a high ideal before those preparing to become legislators. He would keep them till they were fifty years of age in active and earnest preparation for this highest of work. "Then, as soon as they are fifty y-ars old, those who have passed safely through all temptations, and who have won every dis- tinction in every branch, whether of action or of science, must be forthwith introduced to their final task, and must be constrained to lift up the eye of the soul and fix it upon that which gives light to all things; and having surveyed the essence of good, they must take 1 Republic, Bk. 7, translation by Davies and Vaughan, 1874, p. 268. 134 AIM OF LEGISLATION. it as a pattern to be copied in that work of regulating their country and their fellow-citi- zens and themselves, which is to occupy each in turn during the rest of life ; and though they are to pass most of their time in philoso- phical pursuits, yet each, when his turn comes, is to devote himself to the hard duties of public life, and hold office for their country's sake, not as a desirable, but as an unavoidable occu- pation, and thus having trained up a constant supply of others like themselves to fill their places as guardians of the state, they will de- part and take up their abode in the islands of the blessed. And the state will put up monu- ments to their memory at the public expense." These are high standards of attainment, and if all, ambitious of becoming law-makers, were compelled to meet these requirements, the numbers seeking such distinction might possi- bly be considerably smaller than at present. Professor Lorimer 1 contends that we can only legislate correctly when we do so in accordance with the law of nature. In his view the legis- lator ought to have knowledge of the laws of nature, and that such knowledge is as neces- sary to him as knowledge of the laws of the land to one placed on the bench to administer law. " That the errors of our legislation do 1 Institutes of Law, p. 193. MATERIAL DEVELOPS! K NT. I-!-", in practice arise from mistaken or imp* conceptions of the objects which legislation ought to seek, quite as frequently us of the means by which its objects are to be attaint lator a- a factor in the development of a state as some of the writers I have already named. Il- thinks we are too apt to forget tlu- social forces at work in producing the beneficent results already attained. Ife de- 1 Justice: The Limits of State-duties, Appleton A Co., 1891, p. 247. 136 AIM OF LEGISLATION. clares that when the legislator " asks how the surface of the earth has been cleared and made fertile, how towns have grown up, how manu- factures of all kinds have arisen, how the arts have been developed, how knowledge has been accumulated, how literature has been produced, he is forced to recognize the fact that none of these are of governmental origin, but how many of them suffered from governmental ob- struction ; yet, ignoring all this, he assumes that if a good is to be achieved or an evil pre- vented, parliament must be invoked. He has unlimited faith in the agency which has achieved multitudinous failures, and has no faith in the agency which has achieved multi- tudinous successes." In conclusion, I think we can all agree that the legislator should have an intelligent know- ledge of his own country at the very least. A wider knowledge, enabling him to compare different political systems with his own, would add to his legislative usefulness. The aim of legislation should be to promote both material development and moral improvement. The legislator should have extensive knowledge of the material resources of his country. He should seek to know the best means of devel- oping those resources. He also should have faith in the possibilities of his country, and his MATERIAL DKVKL>l>MKNT. 137 effort should be to give to that country an in- telligent and law-abiding citizenship. Legis- lation promoted on such conditions would elevate all the concerns of state, and from it would flow the happiest results. V. THE OBJECT OF LAW, AS RELATED TO THE STATE AKD THE INDIVIDUAL. AN ADDRESS DELIVERED IN THE UNIVERSITY EXTENSION COURSE, ST. JOHN, N. B., FEBRUARY 14, 1892. From the very interesting and instructive lectures of my predecessor, the Recorder, 1 you have heard something of the origin of law, the sources whence derived, and the development of the various systems in different ages to meet the requirements of social conditions and ad- vancing civilization. It now becomes my duty to speak to you on the object of law, its rela- tion to society and the individual ; its enforce- ment; the security of life and property as dependent upon its proper and expeditious administration ; and such other topics as natur- ally grow out of the discussion of these sub- jects. Emerson, in one of his essays, gives a good definition of law, taken from the Hindoo scriptures : " Law it is which is without name or color or hands or feet; which is smallest of the least, and largest of the large ; all and knowing all things ; which hears without ears, 1 1. Allen Jack, D. C. L., Q. C. (138) THE STATE AND TIIK INIUVIOUAL. 139 sees without eyes, moves without feet, and seizes without hands." This is a very good definition, especially as seen in a well governed state. Its all pervasive intiuenec is exerted throughout the community without notice, and without so much as giving any indication of its presence until some violation of its provi- sions takes place. Then its existence is soon apparent, and the offender learns that he can- not ignore its rules with impunity. The dictum of Herhert Spencer that " law embodies the dictates of the dead to the living" is just and forcibly put. My remarks in this discourse must be understood as limited to human laws laws made by men fur their own guidance and government. In the early times tin -re were no distinctions between human and divine laws. In tact all laws originally were supposed to have come down to mankind from a divine source, and their observance was based on a duty to the gods ; their non-observance entailed not only punishment from man, but merited the anger of the gods. Grote points out that among the Greeks there was no Greek word for human laws. The Romans supposed that their laws had been received by Numa from the g.nl. : :ia. I'.ut as trade and com- merce increased, as intercourse between peoples of different cities and distant lands became 140 THE OBJECT OF LAW. more frequent, as the necessities of a growing civilization in the different communities of the same nation even indicated the impossibility of social existence without defined rules to regulate the conduct of persons and property, a distinction gradually arose between the divine and human laws; those regulating the con- science, and those regulating the status of citizen and the acquisition and transfer of pro- perty. It is quite easy to understand that laws suitable for one stage of social development might be inadequate for a totally different stage or condition. The object of human law is to govern the relations between individuals as members of society, to preserve to each the right of person and property, and in this way to stimulate individuals to exertion in the ac- quisition of property and the improvement of their social condition. I do not claim for a country possessing a wise system of jurisprud- ence pre-eminent superiority over one not so fortunately situated. A modern writer 1 has w r ell said: "In various departments of intel- lectual exertion in philosophy, poetry, oratory and the fine arts the Greeks have never been surpassed. But they contributed almost noth- ing to the science of jurisprudence. In specu- lative philosophy they greatly excelled the 1 Mackenzie, Roman Law, p. 1. THE STATE AND TlIK INDIVIDUAL. 141 Romans; but in the cultivation of law, the Umans carried off the palm from all the nations of antiquity." The country. however. possessing a good system of law, and ample i Machinery to put it in force, with ability and inclination to preserve to every person the law- ful acquisitions arising from brain or hand, will excel in every development worthy of social and national life a community or state not so happily situated. How could there be national progress in a state where the husbandman, the artisan, or the worker in any department of production was in momentary dread of being despoiled of his just acquisitions by some roving bandit? We have abundant evidence of this disastrous effect upon thrift in countries incapable or unwilling to protect life and pro- perty. The soil may be fertile, the climate all that is desirable, the results of well directed labor abundant, and yet the people are far from prosperous in consequence of the lawless, dis- tracted state of the country. The husbandman, tin- merchant, tin- waire earner, will not devote brain and eneriry to their respective pursuits if there is no assurance of ivaping the legitimate reward. The true object of law should pri- marily be to protect all in the enjoyim-nt of security of personal freedom and the unli- turbed possession of lawful gain. < >nly under 142 THE OBJECT OF LAW. such social conditions will there be substan- tial advancement in intellectual and material growth. It is the proud boast of all countries governed by English law that much of their rapid growth in intelligence, political freedom, and expand- ing wealth, is largely due to the laws under which they live. This statement applies to Great Britain, her English speaking colonies, and the United States. The common law of England, which has grown with the centuries, is much different from the laws of continental Europe. We have grown to our present stature under the common law; the rest of the world, outside of the English speaking portions of it, under what is known as the civil law. Our nation from early times clung to the principles and procedure of the common law, and sturdily resisted the introduction of the study of the civil law. A recent writer 1 declares that " our language, and the main outlines of our political and judicial institutions, are all inherited from our Teutonic ancestors." This view is also strongly held by Mr. Justice Holmes 2 even with reference to the law of bailments. . In discussing the analogies between the English and early German laws as to bailment, he says: 1 Taswell-Langmead, Eng. Con. Hist., 4 ed., p. 4. 2 The Common Law, p. 196. THE STATE AND THE INDIVIDUAL. 143 " Lord Holt's famous opinion in the latter case 1 quotes largely from the Roman law as it filtered to him through Bracton; but, whatever influ- ence that may have had upon his general virus, tin- point decided and the distinctions touching common carriers were of English growth." King Alfred conquered all his competitors for power in England, and subsequently codified the laws of the whole country, and in conse- quence has been called the great founder of the English law. This does not mean that " those laws were first made in his time, for there were Saxon laws then in being, which had been made for above three hundred years before his n-ign ; hut the meaning was this only, that he, being the first Bole monarch after the Hep- taivhy, collected the substance of the laws of all former Saxon kings, from ./Ethelbert to his time, who were kings only of parts of the land. into one body, and so formed one entire codex or book of laws." Sir John Fortescue was Chief Justice and Lord Chancellor in the time of Henry VI. In addition to his book "De Laudilms Legum Angli:e," he left in manu- script, now in the Bodleian Library, Oxford, a dissertation upon the Kngli>h constitution. That dissertation was published, with re- marks," in 1714, by John Fortescue-Ahmd, 1 Coggs vs. Bernard, 2 Ld. Raym., 909. 144 THE OBJECT OF LAW. and in his preface, from which I have quoted, he traces the origin and development of the system of our common law. 1 Writing further of King Alfred's laws, he says 2 : "Now this codex, being made up of such a variety of dif- ferent laws, enacted by the several Saxon kings, reigning over distinct parts of the kingdom ; and these several laws, which then affected only parts of the English nation, being now reduced into one body, and made to extend equally to the whole nation, it was very proper to call it the Common Law of England, be- cause those laws were now first of all made common to the whole English nation." And from this it follows, as rightly claimed by writers of authority, that the English Consti- tution is part of the common law. The late Dr. Hearn, Chancellor of the University of Melbourne, in his excellent work, 3 expresses in felicitous language the fond preference of our Saxon forefathers for their system of laws. " It is not easy," he says, " for us, so altered are our circumstances, to enter into the feelings with which our ancestors regarded the Com- mon Law. To them those ' ancient judgments 1 Fortescne's Monarchy and English Constitution, by Fortescue-Aland, London, 1714, p. xviii. 2 p. xix. 3 The Government of England, 2 ed., p. 35. THE STATE AND Till: IMMVIIH \l.. 145 of the just' 1 represented the immemorial - -u- toms of their ra.-c. tin- old familiar principle.- under which they and their fathers had lived, ami ly which their property and tlieir security were assured, this traditionary law was ren- dered still dearer to them by the suhtle inno- vation- Itoth of the Xorman lawyers in favor of the crown, and of the canonists in favor of tin- church. On the one side the forest laws, or the laws of the court of chivalry or other peculiar eourts, infringed upon the free customs of the land: on the other side tin- church un- cea-inrly strove to extend its own system, and to introduce into general practice the doctrines of the civil law. But however willing the elder jurists of our country' were to derive reflected light from Roman jurisprudence, they knew too well the political tendencies of the lawyers of the Antonines and of the codes of Theodosius and Justinian to admit for an in- stant the hindinr authority of that leri.-lation. The unlearned hut free born tenants of the crown had no idea of submitting to a heavier yoke than their fathers were accustomed to bear: and in tlieir general contentment with the (.re-cut, and tlieir ignorance of the caii>e of their comparative prosperity, resolutely re- sisted every change. Thus we find the Ki 1 Bracton. K 146 THE OBJECT OF LAW. when oppressed by Norman exactions, clamor- ing for the restoration of the good laws of King Edward. Thus we find the sturdy refusal of the barons at Merton to permit, on a question of status, the laws of England to be changed. Thus we know that in the times of the Third Edward and of his grandson the addition of a new law was regarded as a matter of the gravest nature, not to be lightly asked or heed- lessly granted. At a still later period, the language of our lawyers towards their loved jurisprudence breathes a spirit of the deepest reverence and of the tenderest affection.'' At a later stage of this paper I will consider the hostility of our ancestors to the doctrines of the civil law. We divide our laws primarily into two divisions, the lex non scripta and the lex scripta. The unwritten laws are those which compose what we call the rom///o// laic. The written laws are the statutes passed by the appropriate legislative authority. The theory is, however, that all laws, both the written and the unwritten, have originally emanated from the same source the legislature. But, by lapse of time, many of the records relating to these old laws have been lost, and 'by the statute of Westminster the limitation of a writ of right was settled and fixed at the beginning of the reign of Richard the First, i. e., A. D. 1189. i in: -TATI: A.M. mi: INHIVIIM AI.. 147 The common law. then, i- tin- hody incc 1 !>'.'. Hence we have the statement of Half 1 "that these statutes or acts of parliament that were made hefore tin- he^-innin^ of the reign of Hit-hard tin- Fir.-t. and have not sinee been repealed ..r altered, either hy contrary ue<|Ufiit. acts of parliament, arc now ac- counted part of the //./ in.n xrrlfifn, bfinr, &8 it wei-e. incorporated therewith, and hecomc a part of the common law: ami in truth >udi statutes are not now pleadahle as acts .(' par- liament, liecau-e what is li,ft t r> time of memory i- -upposed without a h.-^iniiin*;, or at least such a liciriiminir a< the law take- notic.- .if. lint they ohtain their -tren^th liy mere imme- morial usasre <>r ciiaid to have heen the com- mon -eii>e ot' the country in adjustinir ilisputt-s, interpretinir contracts, and laying down rules to meet new and unprovided casei ari-inir under lian^in.ir circumstances of time and condition. It -ettled the- rule- of tin- de-cent of property, the different method.- of a<-|iiirinir and trans- ferring property, and of validatinir and enforc- 1 Tlie C'ornmon Law, 4 etl., lv Ktiiiniii^ton, ItnMin, 17 '._', 1'. 148 THE OBJECT OF LAW. ing contracts. In these respects it differed in many important particulars from the civil la\v. By the former, lands descended to the eldest son, except in the circumscribed cases of gavel kind and borough English ; by the latter all the children shared equally. The descent of landed property under the common law was the outgrowth of the feudal system. The common law, we may therefore state, is that law not set down in writing, and which receives its binding power, as a law, from long continued and immemorial use, and general reception throughout the realm. Those usages, customs and rules are declared by the judges of the land in interpreting the law, of which more hereafter. It is more easy to speak of the written or statute law of any country. Mr. Bishop 1 has forcibly said that " the world has yet discovered but two forms of law, doubtless the only forms possible the one being reason, the other command. In England and the United States the former is called the common law ; on the continent of Europe it is called the civil law, having been derived from the Roman jurists." He should also have included in this statement England's great English speaking colonies, as they are governed by the common law. Mr. Bishop fears that " the great and 1 Non-Contract Law, p. 618, sec. 1302. THK STATE ANI> TI1K I M'l V 1 1>1 A I.. 1 t '.' overwhelming danger to our law is tin- m-ed- lc-s multiplication of statutes." We must all admit there is force in this criticism. Almost every incipient legislator t'cels it to he his boumlcn duty to emphasi/c hi- entry into pub- lic life, and to illustrate- his genius for states- manship by placing some law upon the statute book. Now the written or statute law is only sup- i to exist for the purpose of declaring or modifying the unwritten or common law. Hence it follow- that legislation should in all pasee -eck to improve upon existing condition* 1 am not arguing against change in our law-. but change should be reasonably called for in the public interest-, and well considered before being adopted, change must necessarily take place. The growth of a country in population, wealth, industrial activity, methods of transit, iind other mode.- of development, renders in- di-pensahle changes in existing laws. What suited a country of sparse population, small means, and simple habits or pursuits, would very inadequately meet the requirements of the .-ame country having a dense population con- gregated in busy cities, devoted to great manu- facturing enterpri-cs. and bidding for a share of the world's commerce. Let me illustrate. When the government of a country required 150 THE OBJECT OF LAW. pri\ 7 ate property for public uses, under the doctrine of Eminent Domain it appropriated what it required, giving to the owner a reason- able or just compensation therefor. The pro- perty, however, was taken, whether the owner was willing or not. That was allowed and justified on the ground that the individual held his property from the Crown, and that the Crown had a right, as trustee for the public, to- resume possession of that property, or any por- tion of it, whenever the necessities of the public services so required. But that doctrine did not apply as between subject and subject, or as between subject and corporations. What a man owned was his own, and no one else, ex- cept the Crown, could lawfully disturb him in its enjoyment against his will. The experience of the last half century shows how that prin- ciple has been expanded. The term p/f>!ir use, as interpreted by the courts, does not mean that the property sought to be expropriated must be for the government, or a body stand- ing for the public. The exercise of the power is permitted even to private corporations upon its appearing that the object sought is for the advancement of the general welfare or the public good. And in every instance the judg- ment of the legislature must be satisfied as to- the utility of the proposed object before grant- TIII: BTA1 1: AMI Tin: m>i\ im AL. l.'.l ri^hf to expropriate. A ri^i'l adherence to tin- doctrine, as first propounded, would have proved a threat hindrance to tin- expansion nt' public improvements. The growth of trade ami commerce demanded certain and rapid transit. Scientific discovery, quickened, no doiilit, liy material needs, de\i>ed the methods of overcoming time and distance in the transit of passengers, freight, and thought. It became manifest to the supreme authority of the coun- try the legislature that it would he quite impossible to derive adequate results from sci- entific discovery and private enterprise without modifications of the law. That was especially the case with reference to the application of steam as a motive power for transit by land. Without such modifications private corpora- tion- could not have carried forward BOC fully the ii'i-eat undertakings which have been accomplished. These remarks are especially applicable to such works as railways ami canals. It i- not necosiry to i;o into particulars; the in-tan. -s will readily occur to the mimls ot'all. The legislature has in all such eases provided that indemnity shall be Driven for the property thu- compulsorily i-xpropriated. The point I le-ire to emphasi/e i-. that the statute law i- a change upon tin- common law. and is called for. from time to time, to meet exigencies not 152 THE OBJECT OF LAW. thought of or provided for under the common law. The same statements made respecting railways and canals can also be made, mutatis mutandis, respecting many other departments of industrial activity. The changed relations brought about by material development and other causes necessitated the intervention of the legislature. And yet the student of the common law must be struck at the great adapt- ability of that system as a system to meet the requirements of the great social and com- mercial changes which have taken place, and are taking place, in the world As Mr. Bishop has pertinently put it, the common law is founded on reason, not command ; and herein lies its superiority over every other system. Founded on reason, and governed by principles of elastic application, the common law system has been largely able to meet the changed con- ditions of society, arising from the diffusion of knowledge, the spread of wider principles of human freedom, and the enormous accu- mulation of wealth. Close beside the common and statute law has grown up a body of law known as case or judge-made law. It is quite separate from, and yet closely dependent upon, them both. Human language is only an im- perfect instrument to convey thought, ideas, intention. It is the medium or instrument we Tin: n \n: \M> TIM: IM>I\ IIM \i.. I.".:; employ to convey to tin- state, to the individual, tlu- intent or purport of the law its com- mands or >anetins. It therefore necessarily follows that the correct meaning of the law- giver's intent must depend largely upon the efficiency of tin- instrument employed. It has always been found nece->ary fur tin- state t<> cuinniis-i.i!! oilirials known among ua as judges to explain and interpret the meaning of the law. a> well as to enforce its sanctions, hiffcrences do not gem-rally arise among law- yers as to what an- the correct principles of law which should prevail and govern the deter- mination of a particular case. The difficulty arises when the prim-iples of the law are sought to be applied to the facts of the case in con- tro\vr>y. The exercise of that faculty requires sound judgment, a critical discrimination as to what is relevant, and what, in short, is the actual point to he decided. The language em- ployed in stating the law may hi- obscure, ambiguous, capable of two or three meanings, or may even >eem contradictory. I'nder such eireumstanco. when a controversy ari.-e-. each party to the di.-pute will naturally contend for that construction, that meaning. nnt favorable to his interests. The judge- are then called upon to put a construction upon the law, and to state its meaning. The judicial opinions in 154 THE OBJECT OF LAW. all English speaking countries, in the higher courts, are published by authority for future reference and guidance. From this practice we have the law reports. The reports in the mother land extend back to the time of Edward the Second. In Great Britain, the colonies, and the United States, there must now 1 be over 6,000 volumes of these reports. Proba bly the following estimate will be found approximately correct: England, 1,700 volumes ; Ireland, 225 volumes; Scotland, 325 volumes; Canada, 300 volumes; Australia and the other colonies, 250 volumes; and the United States 3,500 vol- umes; or a total of 6,300 volumes of reports. Much of the law found in these reports is what is known as "judge-made" law. The intent by having these reports is to make the law cer- tain, to explain difficulties and contradictions, and to have authoritative decisions. Xotwith- standing these precautions, difficulties continue, the decisions do not at all times harmonize, in fact in some instances they are irreconcilable. But as a general rule the system fairly meets the ends sought, and the decided cases are pre- served in the reports, and in the same court are followed as authoritative until reversed or modified by a higher or appeal court. In this respect our system differs from that of conti- 1 1892. THK STATi: AM) TIN-: IMMV1IM Al.. 1 .".") noutal Furope. I'mler the latter system judi- ial decisions have iT'-m-rally no hindinir force. and an- not looked to as precedent-. We .-:in well believe tliat nii(k-r such condition- there cannot he the -aim- certainty in the administra- tion of the law. Cnder that system then- is also a marked divergence from our- in some important directions. With us all persons stand equally he fore the law. But under the doctrine of the '//-/'/ uiliiiiiii.--lrntif, especially as interpn-ti'd in France, the trovenimeiit. and all per-oiis acting for or on he-half of the state, are held to have rights and privileges ditK-reiit from tho^,. which olitain lietweeii citi/.eiis as such. 1 With us all persons stand equally hi- fore the law, and the decisions of our courts an- tor the purpose of rendering- the law more certain. In-tead, however, of a decrease in the numher of the n-ports \early. they are on the incn-a-e every year, much to tin- perplexity of the le^al pn>fc.->ioii. The n-ports contain the "Case" law. so called. This laNv i< not in the strict the common or statute law, hut the vieNvs of the jud-v- ;i- to the correct mcamiiiT of the coiniiMtn or statuti- law as applied to disputed '|iicstions hetweeii litigants. Spem-er'> detini- tion, " laNV emhodies the dictates ot' the dead to the living," is especially apposite as n-irards 1 See Dicey, Law of the Con., 4 ed., p. 310. 156 THE OBJECT OF LAW. case law. We all know that after an act of the legislature has been passed affecting in main* ways private interests or rights, the courts are called upon frequently to determine and declare its operation and limitations. And it may re- quire some years before the meaning of the particular act has been fully settled. This experience points strongly to the necessity of well considered action before entering upon a change. Reform or alteration should not be at a stand-still because of over-caution, but no legislative change in our laws should be pro- moted merely on speculative grounds. Having said this much with reference to our laws, the question very naturally arises, what has all this vast system, and the machinery for putting it in force, to do with the state and the individual ? It is an object of prime import- ance to me, as a member of a community, to feel and know that ample means of redress are available to punish those who may attempt to injure me in person or estate. It is likewise a guarantee of tranquility for the community to feel there is a power, dormant it may be, but ready to spring into action to protect all from unlawful interference at the hands of others. There have been times in the history of the mother country when private disputes were set- tled in ways far different from present methods. TIIK STATi: AM. TMK I MI V I DI A I.. 1.".? Take, tor instance, wager of battle, ordeal, the infliction of punishment by tin- one injured or seeking ivdr B6, the law of retaliation, and othrr method> t -(juallv primitive, barbarous and dangerous. No man can safely be permitted to art as judge, juror and sheriff's olKeerin his own case. Our law wisely forhids that. We are in the statr. \\ v an- members of it, and it owes us protection, and we in turn owe it the re of certain duties. The law. a> to a member of sorirty. is only irk- some when thriv is a disposition not to obey it. Law exists to guarantee security to the rom- munity, to deter the wrong-doer from i>ursuinr bis evil course, and to inflict punishment upon those violating its commands. How dreadful it would appear to us of the present time: if guilt or innocence were tested by the ordeal by the hot iron by wager of battle, or by thr "accursed bread." How >illy it would seem if the settlement of a disputed line fem-e wn v attempted by methods adopted by our fore- fathers long centuries ago. What an unde.-ir- able country to live in where a person assaulted could vindicate the offended majesty of law, and >eek reparation for the injury, by assaulting hi> as.-ailant in turn. How startling it would in to us now if the relatives or friend- of one murdered demanded the right to inflict the 158 THE OBJECT OF LA\\. death penalty upon the murderer. Happily for us we are governed by wiser and better laws than those indicated, and yet our fore- fathers in the mother land in early times were so governed. It is a maxim of our jurispru- dence that a law does not become obsolete by non-user. If once upon the statute book, and unrepealed, it can be invoked on any fitting occasion. The Court of King's Bench in Eng- land, as late as 1818, 1 decided that the accused had a right to be tried by wager of battle. The incident caused the repeal of the old law by the legislature. As early as 1372, in the time of Edward the Third, a law was passed excluding practising lawyers from parliament, and it was not formally repealed till 1871. 2 Laws enacted by legislative authority, con- stitutionally speaking, are an expression of the will of the people. In a country possessing representative institutions such as ours, the people elect the law-makers, and these law- makers, as delegates of the people, can fairly be said in their proceedings to express the popular will. In theory this is correct, but in practice there are exceptions. The legislature, on occasions, may not properly voice public opinion in the work of legislation, but the 1 Ashford vs. Thornton, 1 B. & Aid. 405. z See Taswell-Langmead, Con. Hist., 4 ed. 297. Till: STATK AM' Till-; IM>I\ ll'l \1.. remedy can only he applied hy inducing tin- 1 -islatiirt- t<> repeal tin- law, and, in case of ivfu-al, to -elect a legislature which will. All law should he supported hy puhlic opinion, otherwise it may he administered inefficiently, lle-pect tor law, and it> proper and speedy en- forcement, is one of tin- irivat hulwai 1 social and political security. Let it he once understood that the law is inefficient, or that tho-e entrusted with its enforcement are care- r iieirli^fiit. and you at. rnfortunately. from statement- we read, thai -y-tem of law doe- occasionally ohtain in some portions of tin- world. And so far as now advised, these countries are not deficient in the p..--eion of -\-tcm- of jurisprudence amply sufficient to protect hotli life and property. What. then, is the difficulty'.' Wherein lie.- the trouhle'r It i- found in the fact that the people have lo.-t confidence in the prompt and vigorous adminis- tration of the law to protect tin-in from a;_ sion. Take an instance for illustration. A irreat criminal i.- arraigned for the conimi ion of a cruel and cohl-hlooded crime. l',\ -onie mean.- he .-.-ape- puni-hnicnt for hi- wron_ir- loinu- ;,nd irain- hi- lihert. Other 160 THE OBJECT OF LAW. miscarriage of justice occur. Public confidence in the established methods of administration is destroyed ; the people, for the time being, lose faith in the power of the laws to shield them from wrong; they realize the necessity of keeping the evil-disposed in wholesome dread of some power, and they at length rise in their might, take the law into their own hands, and inflict summary punishment upon offenders. I am not speaking in this connec- tion as to lynchings w r hich take- place in defi- ance of all law when prejudice of caste or. color overrides all respect for law or its proper administration. In some of the states of the United States the negro charged with the com- mission of crime has but small opportunity for a fair trial. We must deplore the introduction .of irregular methods of administering law, and yet, when the public authority is lax or ineffi- cient, there must be some restraint, some assur- ance of security to person and property. It may, however, be admitted that this position, as a general rule of conduct, is quite correct, but that it is not applicable to some laws, especially those against public policy or the general welfare. But the question in all such cases must arise, who is to judge as to what is the public utility or the general welfare? Is it the authority which formulated and enacted THE STATE AND THK INDIVII.IAL. 1C1 the particular law, or, it may be, tin- individual whose interest it is to disobey? There nm.-t be ultimate authority somewhere in the -tat.-. and that authority should he uniform and equally binding upon all. If each individual had the right to judge, and from that to act or to refuse to act, there could be no uniformity, no equality, but great confusion. Under .-u.-h conditions there would be no obedience to law, and it is not necessary to repeat that open violation of any law on the statute book will soon beget contempt of all law. It is upon this ground we deem it highly important to inculcate a respect for law and its due enforce- ment. As a general rule, I believe, that feeling has a strong hold upon the people of this coun- try. We notice this especially when officers of the law, armed with legal process, seek to execute such process, either in the arrest of tin- person or the attachment of property. Men. having no regard for right, will neverthelex allow themselves to be arrested, or their prop- erty attached, feeling that the art is done, not by the officer who executes the process, but by that mysterious impalpable something we call law, which, as already pointed out. "hears without ears, sees without eyes, move- without teet, and seizes without hands." This mu>t have been the feeling of a man of large stature L 162 THE OBJECT OF LAW. arrested by a constable of small size in the State of Massachusetts. The diminutive officer of the law stood on tip-toe, and, tapping the defendant on the shoulder, informed him that he was his prisoner. The party arrested looked down contemptuously upon the constable, and threatened to pick him up with one hand and shake him. This was quite too much. The constable felt, no doubt, the majesty of the law was being offended by such disregard of his official dignity. He stood oft' a few paces, looked up at his prisoner, and triumphantly said : " I wish you to understand, sir, if you shake me, you will shake the whole common- wealth of Massachusetts." According to the story, that was quite sufficient. The mysteri- ous power of law supposed to be wrapped up in the person of the officer, and wielded by him, settled the question, and the threatened shaking did not take place. This incident quite accurately expresses the feeling prevail- ing in every well governed state as to the efficacy and potency of law. In the interest, therefore, of the individual and the state, there should be no doubt as to the certainty of en- forcing legal rights and punishing wrongs. We need not, in this connection, trouble ourselves as to any theories about the nature of society and the supposed terms of the social compact. THE STATE AND THE INDIVIDUAL. 163 Some writers, notably Sir William Blackstone, maintain that society is formed, on the tacit agreement at least, that each mcmher has voluntarily given up some of his personal rights to the general body for the public good. Putting the theory in different language, it is contended that the members of the state have agreed among themselves that each shall de- nude himself of certain rights and liberties he may possess in a state of nature for the public good. And it is upon this supposed contrac- tual relation, we are told, that the state has tlu- right to legislate as it does. It is quite unne- rr-siry tor me to say that the contract has m-\vr yet been produced; and no less an authority than Sir Henry Maine repudiates any such theory. Men are born into society. They have no option in the premises, and whether they are willing or unwilling, they must obey the laws of the society into which they are born, so long as they remain members of it. History has preserved no record of the time or circumstances when people roaming in a state of nature met together and entered into any such compact. Guizot 1 fully and clearly attention to the vast body of case or judge- made law in the English language, spread over more than 6,000 volumes of reports. 1 As already >tated, these reports are published by authority. Such publication is for the purpose of rendering them easily accessible, and to ensure uniformity of opinion or decision in the particular court. Courts in our country have adopted for their guidance the maxim stare detisis. It is a wholesome rule, and should have universal application. It would be highly inconvenient and impolitic if judges of the .-ante court did not hold themselves bound by the decisions of their predecessors. Not to do so would introduce uncertainty and eonfii-ion into our jurisprudence. When a court has, after mature consideration, decided a principle of law, it should not thereafter, except upon rare occasion, depart from that decision. All courts should hold themselves bound by their decisions until corrected by a court of appeal. We base our personal relations, and the acquisi- tion and tenure of property, largely upon the judgments of our courts. What security would there \>v cither fur person or property if it were allowable or customary for those courts to l.e guided by no principle, to respect no former decision, but to decide according to the then Now (1898) fully 7,000. 166 THE OBJECT OF LAW. view of the tribunal? People may have ac- quired property upon the reasonable expecta- tion that a court of law will be consistent with itself, will respect its own decisions, and will not, by a vacillating, contradictory course, in- troduce doubt and confusion into the adminis- tration of justice. A moment's reflection will indicate what would be the result of such a course. I purchase property, knowing at the time the rule of law governing my right to acquire and retain. I purchase upon the faith that the law is and will continue to be as ex- pounded by the court. Would it not be unjust for the court, after my purchase, to lay down a contrary doctrine, and thus, it may be, divest me of what I have purchased in good faith relying on the consistency of judicial decision ? How unfortunate would be such a condition of affairs. But in continental Europe judicial decisions in general have no binding effect as precedents. It is submitted, the common law system, in this respect, surpasses its rival, the civil law system. There cannot be much real or substantial progress in a country where the administration of law is uncertain. The prime necessity for true progress is faith in the stability of the institutions of the state, and an assur- ance that the citizen, within proper limitations, will be free in person and undisturbed in the THE STATE AND THE INDIVIDUAL. 1'7 possession of his property. These arc objects which should never l>e lost sight of by law- makers or the administrators of the law. The great object, then, of our legal s\>u -m is to protect the individual in the pursuit of happi- ness, in social and intellectual development, and in the acquisition of wealth. Writers of eminence have maintained with great force the superiority of our common law over its great rival system, the civil law, to accomplish these objects. Judge Cooley, in a clear and masterly analysis, says: "But on the whole the system was the best foundation on which to erect an enduring structure of civil liberty which the world has ever known. It was the peculiar excellence of the common law of England that it recogni/ed the worth, and sought especially to protect the rights and privileges of the indi- vidual man. Its maxims were those of a sturdy and independent race, accustomed to an unusual degree of freedom of thought and action, and to share in the administration of public affairs; ami arbitrary power and uncontrolled authority were not recognized in its principles. Awe surrounded and majesty clothed the king, but tin- humblest subject might shut the door of his -ottage against him, and defend from intrusion that privacy which was as sacred as the kingly prerogatives. The system was the opposite of 168 THE OBJECT OF LAW. servile; its features implied boldness and inde- pendent self-reliance on the part of the people ; and if the criminal code was harsh, it at least escaped the inquisitorial features which were apparent in criminal procedure of other civil- ized countries, and which have ever been fruit- ful of injustice, oppression and terror." 1 Sir Frederick Pollock 2 discusses this question in his usual clear cut manner. He admits that the civil law failed of obedience in onl}* one corner of Europe, and that was in England. He expresses the opinion that the world and civilization have gained in consequence. If such had not been the case there would have been no rival to the civil law system. He further declares that " It is hardly too much to say that the possibility of comparative juris- prudence would have been in extreme danger ; for broadly speaking, whatever is not of Eng- land in the form of modern jurisprudence is of Rome, or of Roman mould. In law, as in politics, the severance of Britain by a world's breadth from the world of Rome has fostered a new birth which mankind could ill have spared. And the growth of English politics is more closely connected with the independent growth and strength of English law than has 1 Con. Limitations, p. 30. * Oxford Lectures, London, 1890, p. 46. TIIK STATE AND THE IMI\ I I'l A I.. 111'.' commonly perceived or cm In- gathered from the common accounts of English history." Continental Europe has been governed ly the civil law a system \vhirli, as already stated, did not find much favor with tin- Knglish peo- ple, as it was thought to favor absolutism in government. As early as 1149, Vacarius, a distinguished continental jurist, delivered lec- tures on the civil law at Oxford, and wrote some works on that system for the use of the students. But the prevailing prejudice against the system was so strong that King Stephen prohibited his lecturing and ordered the I VI DUAL. 171 difficulty in organizing a trust or combine to bottle and sell by the mouthful the- air \ve breathe, if there were but slight chances of success in the attempt. Speaking chiefly of personal property, we acquire title by original acquisition, by transfer, through act of the law ; and by transfer, through act of the parties. In this division I follow the commentaries of Chan- cellor Kent. It is sufficiently comprehensive to include all possible cases. By original ac- quisition is understood acquisition (1) by occu- pancy, (2) accession. This latter division in- cludes natural increase of flocks and herds, accretion of the soil. And (3) we have acqui- sition by intellectual labor. Under the latter division wi- have patents of invention and copyright of authors. A person under our law -an have as substantial a right in, and as full enjoyment of the works of his ingenuity and genius, as in the labor of the hand. This description of property bears a very close rela- tionship to property acquired by occupancy. In tact the right of proprietorship arises from a species of occupancy. The inventor of the steam-engine, the spinning-jenny, the incan- descent lamp, is as much entitled to property therein on account of lirst occupancy as the pioneer on the open prairie is entitled to own- ership of the land he reclaims and 172 THE OBJECT OF LAW. The principle in both cases is the same. The law which guarantees to an inventor or author the fruits of his labor has a direct tendency to stimulate and encourage in such pursuits. From the labors of the inventor, the man of science, the man of letters, have arisen forces and influences which have in large measure affected the world for good. It is therefore the part of wisdom to protect all these classes in the acquisitions of their respective pursuits. We acquire property under the second division by forfeiture, judgment of a court, insolvency, intestacy, and it may be by some other methods. Under the third head, i. e., by the act of the parties, we acquire by gift, which may be (1) inter vivos., i. e., one can make a valid gift of property to another without reference to any future event, and to take effect absolutely and at once ; or (2) the gift may be one causa mortis, i. e., one in contemplation and expectation of death can make a gift of personal property to take effect in case of death, but which will be- come void in the event of the donor recovering from his illness. There is much curious dis- cussion, and there are many adjudications of courts upon this subject. It is, however, not necessary to pursue the subject further, except to say in the case of a gift causa mortis there must be a delivery of the intended gift, either TllK STATE AND Till-: IM'IVIIH A I.. \~'.\ actual or constructive, and this mu>t be done at a time when the donor is in contemplation of death. I now desire to discuss briefly the <|iicstion of contracts, as the second method of ac.|uiring property is by contract by act of the parties. A contract is "an agreement between compe- tent parties, upon a legal consideration, to do or to abstain from doing some act." It is not necessary to discuss the three divisions of eon- tract. It will be quite sutlieieiit in this connec- tion to confine our attention to simple contracts. or contracts by parol, i. e., contracts either verbal or in writing not under seal. A con- tract to be valid must be between competent parties, that is, between parties capable of con- tracting. Sir Frederick Pollock, in his well known work on contracts, says : " Kvery agree- ment and promise enforceable by law is a con- tract." There can be no contract between parties incapable of contracting, or against whom you cannot enforce the agreement. An idiot or lunatic cannot enter into a valid con- tract. An infant and a married woman 1 stand 1 This has since been changed in this province by 58 Viet., c. 24. A married woman now can sue and be sued in respect of her own property as if she were unmarried. The legisla- ture has in great measure adopted the Knglish Married Woman's Property Act of 1882. 174 THE OBJECT OF LAW. in much the same position. It is of the essence of a contract that there must be an assent a mutual agreement between the parties. But no assent can be given by an idiot or lunatic. Not being capable of assenting or agreeing, they cannot enter into a binding contract. The law also, in order to protect infants, persons under the age of twenty-one years, has declared that they cannot bind themselves by contract, and the same is the case with married women 1 without the consent of their husbands. In- stances have arisen where the estates of all these classes have been held liable for neces- saries supplied, but, speaking generally, the law is as I have stated. Pothier, the great French jurist, in his work on Obligations, 2 says a contract is a " particular kind of an agreement"; that "an agreement is the con- sent of two or more persons to form some en- gagement, or to rescind or modify an engage- ment already made " ; and that " that kind of agreement, the object of which is the formation of an engagement, is called a contract." He further most properly states that " a contract includes a concurrence of intention in two parties, one of whom promises something to the other, who on his part accepts such prom- lr This is now changed, as already stated. 2 Vol. 1, p. 3, translation by Sir William Evans. THE STATE AND THE INDIVIDUAL. 17 ise." In this sense it is held, both by the com- mon and civil law, that a person so intoxicated as to be wholly incapable of understanding tin- nature of his act, will not be bound. But in all these cases there are limitations which must not be overlooked. If a drunken man or a lunatic confirm his undertaking or agreement after his debauch has worn off, or his mind has become lucid, such confirmation will be bind- ing upon him. And in the same manner an infant, after arriving at full age, may ratify and confirm a contract made when under age. This goes to show that all such contracts are void- able, but not void. There must not only be competent parties, but a valuable consideration to support the contract. It does not follow that the consideration must be ample, must be the full market value for the services rendered or the article sold, but yet it must be what is known in the law as a valuable consideration, An ainvmient between debtor and creditor, by which the former agrees to pay one-half of his indebtedness, for which the creditor consents to release or give up the rest of the debt, is not binding on the ground there is not a valuable consideration to support the promise to give a discharge. The creditor's promise under >in-h circumstances, although the half has hem paid l'\ reason of the promise, will not relieve the 176 THE OBJECT OF LAW. debtor from payment of the full am'ount of his indebtedness. In law the promise is a mere nudum pactum. The principle is this : an agree- ment by one to obtain a concession or rebate for doing that which by law he is already com- pelled to do, is not a sufficient consideration upon which to ground a valid contract. If I owe the sum of $100, the law implies a duty on my part to pay the full amount. A pay- ment of $50, although met by the promise that its payment will discharge the full claim, is not sufficient to accomplish that object. The law holds me liable to pay the full amount of the claim. If, however, the debt were not yet due, but existing, and the creditor agreed to accept a part in consideration of immediate payment, that would be a good consideration for the ex- tinguishment of the whole indebtedness. I refer to these phases of legal growth to indicate the social and commercial develop- ment which has taken place since Anglo-Saxon times. This has been well considered by two of our most prominent living writers on legal questions. In a late work 1 they say: "Pro- ceeding to the usual subject matters of Anglo- 1 Pollock & Maitland, History of English Law, vol. 1, p. 21. This work was published after the delivery of this ad- dress, but the quotation has been incorporated in the article as very applicable. THE STATK ANH T1IH I NI'IV I IT AI,. 177 Saxon jurisdiction, we find what may IK- called tin- u.-ual archaic features. The only substantive rules that art- at all fully set forth have to do with offences and wrongs, mostly those which are of a violent kind, and with theft, mostly cattle-lifting. Except so far as it is involved in tin- law of theft, the law of property is almost entirely left in the region of unwritten custom and local usage. The law of contract is rudi- mentary, so rudimentary as to he barely dis- tinguishable from the law of property. In fact people who have no system of credit and very little foreign trade, and who do nearly all their business in person and by word of mouth with neighbors whom they know, have not much occasion for a law of contract." The devel- opment of commercial intercourse, and the requirements of a higher civilization, have rendered necessary precise rules as to the law of contract. If -the consideration of a con- tract is to do an immoral or illegal act, or contrary to public policy, the contract is not enforceable. If a person rent a house for the purpose of allowing the same to be used as a bawdy house or house of ill-fame, the purpose would be immoral, and the owner or landlord could not collect any rent. Kntcr- ing into a contract, the direct effect of which will be to cause a violation of law, will avail M 178 THE OBJECT OF LAW. nothing; such contract cannot be enforced. Take a very pertinent illustration. The Canada Temperance Act is in force in some of the counties of this province. If a person residing and carrying on business in a county where the act is in force went to the city of Saint John, where the act is not in force, and purchased intoxicating liquors from a dealer to take to his place of business for sale, the seller cannot re- cover the price if he knew, or had reasonable grounds for believing, the liquors were to be taken to such county for sale. There are two kinds of simple contracts, express and implied. If I purchase from any one of you a cargo of flour, and agree to pay $5 a barrel for it, which is accepted, that is an express contract as to price. Nothing in that case is left to inference; all the terms as to price are stated ; or, in other words, the contract is express. If, on the other hand, I send to a flour merchant and request him to forward me a cargo of flour, saying nothing as to price, the law raises the inference of a promise on my part, upon re- ceipt of the cargo, to pay such price as is reasonable and customary. Again, if I permit a workman to labor in my field, or on my build- ing, under such circumstances that it could not be inferred the work was gratuitous, the law raises a presumption that a tacit agreement THE STATE AND THE IM'I VIM AI.. 17'. t-xists by which I am legally hound to pay for the labor what it is rear-onahly worth. These an- all instances of implied contracts, and when tin- implication of an agreement once arises, the contract is as binding and as capable- of enforcement as if it were express. These are instances of contracts made- directly betv the parties, or under such circumstances as are tantamount to direct agreement. The changed conditions of conducting business by reason of postal, telegraphic, and telephonic communica- tion, have caused the courts to lay down rules as to w lie n the contract is complete. We all know, as a matter of fact, that the business of the world now could not well be carried on except by correspondence. From this cause curious questions have arisen for the decision of the courts. I have already stated that a contract includes a concurrence of intention in two compel. -nt parties at a given time to enter into an agreement. When the proposal is made and accepted, it becomes a contract, but not until then. Suppose, then, I write to a merchant in Montreal offering to pur from him a cargo of sugars at a stated price; the Correspondent receives the letter in due coiir.-c of po>t. makes up his mind to accept the offer, and writes me to that effect. The next day, however, before the Montreal mer- 180 THE OBJECT OF LAW. chant has written his acceptance, I change my mind, and at once write him to that effect. Our letters, it may be, cross each other, mine of revocation, his of acceptance. "What, under such circumstances, are the relative rights of the parties ? Pothier, in his work on Sales, 1 says : " The consent of the parties, which is of the essence of the contract of sale, consists in a concurrence of the will of the seller to sell a particular thing to the buyer for a particular price, and of the buyer to buy of him the same thing for the same price. How ought this consent to intervene, and in relation to what ? " This writer, following the rule of the civil law, declares that the proposer can revoke an oft'er sent by letter, and that such revocation is valid, although the merchant to whom the proposal has been made accepts and despatches his letter of acceptance before he receives the letter of revocation. Pothier evidently sees the illogi- cal position this statement of the law involves, for immediately after he admits that, if the merchant forwarding an acceptance is put to any expense, or is occasioned any loss in con- sequence of the proposer's revocation, he must be indemnified by the proposer. The right to indemnity must logically rest upon a breach of contract, but if there has been no contract, 1 Cnshing's ed., Boston, 1839. THE STATE AND THK I M>I \ IIM AI.. 181 then there can have heen no hrvarh, ;uint upon conditions at variance with the terms proposed. The ac- ceptance must l>c in the identical terms of the 1 Pollock on Contracts, 5th ed., p. 36. 182 THE OBJECT OF LAW. offer, otherwise there will be no binding con- tract. For instance, if I offer to sell a cargo of sugars at a stated price, to be paid for in three months from delivery or sale, and you reply, " Yes, I will take the sugars at the price you name, but I must have six months for pay- ment," no contract arises ; the parties are not agreed as to terms. It will thus be seen that law adapts itself to the changing conditions of society or national growth. Law has for its object the permanence of society and the pro- motion of the interests of the individuals com- posing that society. The state and the indi- vidual have reciprocal interests. What really benefits one must also benefit the other. I cannot conclude better than by quoting from Guthrie's introduction to his translation of Savigny. 1 His words are judicious; they express what I believe to be proper views. He says: "Law is thus in a state of perpetual growth; and the main and most influential condition of this growth is its generation within a community held together by a common spirit and common traditions. The character and whole outward circumstances of the nation in which it springs up determine in a very great degree the nature and peculiarities of each system of law; and the rapidity of its growth,. 1 Private International Law, p. 36. THE STATE AND THE INMVIDUAL. 183 and the promptitude with which it is adapted to the necessities and opinions of those who live under it, are in some proportion to the perfection of the national organization. The state is the organ of the growth of law within the nation. As a family expands into a nation, the rudiments] forms of law and of the state (which is itself the highest production of the spirit of law) are developed simultaneously, and go on to more perfection as the nation advances. In short, the hirth of society and <>f law is one. Ubi societas ibi jus est." INDEX. A. ADAMS, JOHN QUINCY, 37-40. Mr^ageof 1825, 40. AlX-LA-CHAPELLE. See Congress. ARISTOTLE. Politics, 132. AUSTIN. Definition of law, 109. B. BAYARD, DR. WM., 79, 97. BKXTHAM, JEREMY. Views on legislation, 54, 111. BISHOP, MR. Non-contract law, 148. BLACKSTONK. Definition of law, 110. BRACTON, 14">. BRYCE, PROK. Views of, 67. I'.l i KLK. ( 'ivilization, 129, 131. I ( 'A 1. 1IOUS. K.-vii-w of Monroe Doctrine, 2* 18 el ttq. Pronmtcr <.i principle of Monroe Doctrine, 89 et te CASE OR JriKJE-MAin l.\\\. 152. (185) 186 INDEX. CHARTISTS, 84. CHITTY, JOSEPH, 54. CIVIL LAW. Regarded with distrust by English, 145. CIVILIZATION. A development, 108. CLAY, HENRY. Resolution of, 49. CLEVELAND, PRESIDENT. Message 1895-6, 65-70. COLONIAL DEVELOPMENT, 94 et seq. Constitutionally, 100. COLONIAL SELF-GOVERNMENT, 101 et seq. COMMON LAW, 142 et seq. Derived from Teutons, 142. Codified by Alfred the Great, 143. Compared with Continental, 154. CONGRESS. Aix-la-Chapelle of, 7. Lay bach, 9. Troppau, 9. Verona, 9, 15. Vienna, 9. Never confirmed Monroe Doctrine, 49. COOLEY, JUDGE, 57, 118. CRIMEAN WAR, 86. GUSHING. See Pothier. D. DANA. Summary of message of President Monroe, 61. DICEY, A. V. Law of Con., 155. DILLON, JUDGE. Lectures of, 169. DURHAM, LD., 101. INKHX. 187 IT. E. State of, 116. EMERSON, R. \V. Hindoo law, 138. KMINENT DOMAIN, 118, 150. EXPORTS. 82, 94, 98. EXPROPRIATION, 119, 150. F. FERDINAND. King of Spain, 15. FORVM, THE, 60, 66. FORTESCUE, SIR JOHN, 144. G. GROTE, GEO. No (ireek word for law, 139. GROTIUS. Law of nations, 54. GUJZOT. Representative government, 163. lit 1HRIE. See Savigny. H. HALK, Sm M. Coin, law, 147. HEARN, DR. Government of England, 144. HOBBES, Theory of law, 109. H. 'i. i. AND, PROF. Jurisprudence, 55. HOLY A I.LI AN Principles of, 15,22,31. HOOKKK. Polity, 53. HOLMES, O. \\ Common law, 142. 188 INDEX. I. IMPORTS, 82, 94, 98. INDIAN MUTINY, 86. INTERNATIONAL LAW, 53 et seq. Monroe Doctrine not, 57. INVENTIONS, 78. IRELAND, 85. J. JEFFERSON, 25. JENKINS' LIFE OF POLK, 42. JOINT STOCK COMPANIES, 120. JUBILEE, 76. K. KENT. Definition of law, 110. L. LAURIER, SIR WILFRED. 105. LAW. Case. See C. Civil. See C. Common. See C. International. See I. Definition, 109. Definition Hindoo, 138. Object, 113, 115, 129, 138. Primary object, 141. Reports, 154. LAWRENCE. His views, 39. LAYBACH. See Congress. LEGISLATION. Aim of, 106, 111. LEGISLATOR. Duty of, 131 et seq. LEWIS. Eminent domain, 118. IXI.KX. 189 PROF. LYNI n LAW, 159. M. MAt KKN/.IE. Roman law, 140. MALI-UN, -jr, _';. MARKHY, MR. Jrsn Theory of legislation, 112. MAXIMILIAN. In Mexico, 48. M' < ARTHY, JUSTIN, 46. M UN ROE DOCTRINE, 1 el seg. British origin, 8. Not continued by Congress, 8, 49. Not international law, 8, 57. History of doctrine, 8. MONROE, PRKSIDKNT. Message 1823, 1. Message 1824, 5. N. NON-COLONIZATION, 24, 36, 70. Doctrine invented by Adams, 37. Repudiated by Great Britain, 40. Not considered by American Cabinet, 45. NON-INTKRVKSTION, 24. Noi.ru AM. REV., 37, 67. O. . Y. IAN PlKIK I l.TY, 28, 51.