Chapter II: Front Matter (2)

The law is to be so construed as to give effect to all its parts, and any construction that does not do so is manifestly unsound. Therefore a construction which would render inoperative the requirement for the accumulation of a surplus fund cannot be correct, and the net profits available for dividends must be determined by the amount of earnings on hand other than the surplus fund when that fund does not exceed a sum equal to one-tenth of the earnings of the bank since its organization.

Having shown what the net profits available for dividends are, the only other question that can arise is: Can losses and bad debts be charged to the surplus fund and the other earnings used for paying dividends, or must all losses and bad debts be first charged against earnings other than the surplus fund, so far as such earnings will admit of it, and the surplus, or a portion of it, used only when other earnings shall be exhausted?

This question is virtually answered above, for if the object of the law in requiring the creation of a surplus fund may not be defeated by one means it may not by another; if it may not be defeated by paying away the amounts carried to surplus in dividends, neither may it be by charging losses to the surplus and at the same time using the other earnings for dividends.

Moreover, section 5204 of the Revised Statutes of the United States provides as follows: "If losses have at any time been sustained by any such association, equal to or exceeding its undivided profits then on hand, no dividend shall be made; and no dividend shall ever be made by any association, while it continues its banking operations, to an amount greater than its net profits then on hand, deducting therefrom its losses and bad debts."

This language fixes the extent to which dividends may be made at the amount of the "net profits" on hand after deducting therefrom losses and bad debts, and as it has been shown above that the surplus fund cannot be considered "net profits," available for dividends within the meaning of the law, it follows that in order to determine the amount of net earnings available for dividends the losses must first be deducted from the earnings other than surplus.

It is to be observed also that section 5204 specifies that if losses have at any time been sustained by a bank equal to or exceeding its "_undivided_ profits" on hand no dividends shall be made.

Now the surplus fund is not undivided profits, except in so far as it is earnings not divided among the shareholders. It is made upon a division of the profits--so much to the stockholders and so much to the surplus fund. If the law had intended that losses might be charged to surplus fund in order to leave the other earnings available for dividends it is to be presumed that care would not have been taken to use the words "undivided profits," in the connection in which they are used, as stated above.

Furthermore, if losses may be charged to surplus when at the same time the other earnings are used for dividends to shareholders, a bank may go on declaring dividends, and never accumulate any surplus fund whatever if losses be sustained, as they are in the history of nearly every bank. A construction of the law which would render inoperative the requirement for the creation of a surplus cannot be sound; and as the only way to insure that a surplus shall be accumulated and maintained is to charge losses against other earnings as far as may be before trenching upon the surplus; it must be that the law intended that the "undivided profits" which are not in the surplus fund shall first be used to meet losses.

To a full understanding of the subject it is proper to say that after using all other earnings on hand at the usual time for declaring a dividend to meet losses the whole or any part of the surplus may be used if the losses exceed the amount of the earnings other than surplus, and then at the end of another six months a dividend may be made if the earnings will admit of it, one-tenth of the earnings being first carried to surplus and the re-accumulation of the fund thus begun.

This is because the law has been complied with by charging the losses against the "undivided profits," as far as they will go, and it is impossible to do more, or require more to be done, for the re-establishment of the state of things that existed prior to losses having been sustained than to do what the law requires shall be done to originally establish that state of things.

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CONCORD, N.H.

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IMPRESSIONS D'UN FRANÇAIS.

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Par le Professeur Emile Pingault.

Quand les Français, les Français de France, comme disent leurs cousins canadiens, parlent de l'Amérique ou pensent à cette reine des républiques, ils n'ont en vue que les grandes villes. New-York, Boston, Philadelphie, Chicago, la Nouvelle Orléans etc. ... forment seuls, pour eux, l'immense continent découvert par Christophe Colomb.

Je voudrais essayer de réagir contre l'idée générale qu'on a, que la lumiére, l'intelligence, la prospérité ne se trouvent que dans les grands centres.

La Providence a voulu que je vinsse établir ma tente dans une ville qui, bien qu'étant la capitale du New-Hampshire, paraît comme un point microscopique auprès des villes que j'ai citées plus haut. Eh bien, sans flatterie aucune, si l'on a pu appeler Boston l'Athène de l'Améríque, je ne vois pas pourquoi on n'appellerait pas Concord un petit _Rambouillet_, toute proportion gardée.

Je ne vous dirái pas que Concord est une petite ville située sur la Merrimac, de 14,000 à 15,000 habitants, mais ce que je puis vous dire c'est qu'il faudrait aller bien loin pour trouver une ville plus intelligente et plus éclairée, je dirais même plus patriarcale. Tout le monde s'y connaît et s'estime l'un l'autre. Il y a dans cette ville une émulation pour le bien et pour l'instruction qui ne peut être surpassée.

Outre les écoles publiques telles que la Haute École (High School), les écoles de grammaire, les écoles particulières, on y voit encore des professeurs de langues modernes, des professeurs de dessin et de peinture, et parmi ces derniers un jeune artiste qui fera vraiment la gloire de l'Etat de Granit si la rlasse éclairée sait l'attacher permanemment à la capitale. La musique a une place privilégiée dans cette ville, les concerts de l'orchestre Blaisdelle sont suivis comme le seraient les premières de Booth et d'Irving. Il y a la plus que du sentiment, il y a véritablement de l'art, et un enfant de Concord, mort il y a deux ans, âge de vingt ans à peine, était une preuve manifeste que l'art est compris ici à un degré supérieure.

La littérature est cultivée avec le plus grand soin. Outre trois clubs, composés chacun d'une quinzaine de membres, qui étudient et admirent Shakspeare; une dame qui manie la parole comme le grand dramatiste maniait la pensée donne des conférences sur l'auteur d'_Hamlet_ devant un auditoire aussi intelligent que nombreux.

Cet amour de s'instruire et d'étudier perce jusque dans les enfants les plus jeunes. Deux _Kindergarten_ sont établis en cette ville; là, outre les choses aimables et utiles qu'on enseigne aux petits garçons et petites filles de cinq à six ans, on leur apprend aussi le français. Qu'il est beau de voir ces jeunes intelligences se développer an son de la belle langue de Bossuet, de Fénelon, de Lamartine et de Victor Hugo. Vous verrez à Concord un spectacle peut-être unique dans les Etats-Unis: une douzaine de petits Américains et Américaines chantant la _Marsellaise_ et dansant des rondes de Bretagne et de Vendée avec une voix aussi douce et un accent aussi pur que s'ils étaient nés sur les bords de la Seine.

Ajoutez à ce tableau bien court et nullement exagéré que l'union et la paix régne entre tous les habitants de la ville, que la police y est heureuse et fort peu occupée, et vous aurez l'idée de la tranquillité dont on jouit dans cet endroit privilégié.

J'avouerai franchement, pour finir, que si toutes les villes et villages ressemblaient à Concord, l'Amérique serait le premier de tous les mondes connus.

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CLAYTON-BULWER TREATY VS. MONROE DOCTRINE.

By George W. Hobbs.

In every conflict of European with American interests on the two continents, comprising North and South America, our countrymen always make their appeal to the "Monroe Doctrine" as the supreme, indisputable, and irrevocable judgment of our national Union. It is said to indicate the only established idea of foreign policy which has a permanent influence upon our national administration, whether it be Republican or Democratic, politically. A President of the United States, justly appealing to this doctrine, in emergency arouses the heart and courage of the patriotic citizen, even in the presence of impending war.

In view of this powerful sentiment swaying a great people, as well as their government, it is not surprising that Congress is often called upon to apply its principles; and it therefore becomes more and more important that it should be well understood by _people_, as well as Congress, in respect to its origin and purpose.

In the message of President Monroe to Congress, at the commencement of the session of 1823-24, the following passages occur:

"In the wars of the European powers, in matters relating 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 defence. With the movements in this hemisphere we are of necessity 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 respect from that of America. This difference proceeds from that which exists in their respective governments; and to the defence 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 such unexampled felicity, this whole nation is devoted.

"We owe it, therefore, to candor, and to the amicable relations existing between the United States and those powers to declare--_that we should consider any attempt on their part to extend their system to any portion of this hemisphere, as dangerous to our peace and safety. With the existing colonies or dependencies of any European power, we have not interfered and shall not interfere; but with the governments who have declared their independence and maintained it, and whose independence we have on great consideration, and on just principles acknowledged, we could not view any interposition for the purpose of oppressing them or controlling in any other manner their destiny, in any other light, than as the manifestation of an unfriendly disposition towards the United States_."

"It is impossible that the allied powers should extend their political sytem to any portion of either continent, without endangering our peace and happiness.

"It is equally impossible, that we should behold such interposition in any form with indifference."

Lest there may be some misapprehension, as to the political circumstances, which called for the promulgation of this "Monroe Doctrine," let us for a moment review the events which gave color and importance to the political environments of that date which elicited from President Monroe this now famous declaration.

In the year 1822 the allied sovereigns held their Congress at Verona. The great subject of consideration was the condition of Spain; that country being then under the Cortes or representatives of the Revolutionists. The question was, whether or not Ferdinand should be re-instated in all his authority by the intervention of foreign powers.

Russia, Prussia, France, and Austria, were inclined to that measure; England dissented and protested, but the course was agreed upon; and France, with the consent of these other continental powers, took the conduct of the operation into her own hands. In the spring of 1823, a French army was sent into Spain. Its success was complete; the popular government was overthrown, and Ferdinand was re-instated and re-established in all his power. This invasion was determined on and undertaken precisely on the doctrines which the allied monarchs had proclaimed the year before at Laybach; that is, that they had the right to interfere in the concerns of another State, and reform its government, "in order to prevent the effect of its bad example" (this bad example, be it remembered, always being the example of free government by the people). Now having put down the example of the Cortes, in Spain, it was natural to inquire, with what eyes they should look on the Colonies of Spain, that were following still worse examples. Would King Ferdinand and his allies be content with what had been done in Spain itself, or would he solicit their aid and would they grant it, to subdue his rebellious American colonies?

Having "reformed" Spain herself to the true standard of a proud monarchy, it was more than probable that they might see fit to attempt the "reformation" and re-organization of the Central and South American Colonies, which were following the "pernicious example of the United States," and declaring themselves "free and independent," it being an historical fact, that as soon as the Spanish King was completely reestablished he invited the co-operation of his allies in regard to his provinces in South America, to "assist him to readjust the affairs in such manner as should retain the sovereignty of Spain over them." The proposed meeting of the allies for that purpose, however, did not take place. England had already taken a decided course, and stated distinctly, and expressly, that "she should consider any foreign interference by force or by menace, in the dispute between Spain and the Colonies, as a motive for recognizing the latter without delay."

The sentiment of the liberty-loving people of the American Union was strongly in favor of the independence of the Colonies, which our government had already recognized; and it was at this crisis, just as the attitude of England was made known, that President Monroe's noble and patriotic declaration was made. Its effect was grand; it disarmed all organized attempts on the part of Spain and her allies to re-organize her "rebellious colonies"--now our sister republics in the western hemisphere--and shook the political systems of the world to their centres.

"The force of President Monroe's declaration," said Daniel Webster, "was felt everywhere by all those who could understand its object, and foresee its effect." Lord Brougham said in Parliament that "no event had ever created greater joy, exaltation, and gratitude, among all the freemen in Europe;" that he felt "proud in being connected by blood and language with the people of the United States;" that "the policy disclosed by the message became a great, a free, an independent nation."

Daniel Webster again said of it, "I look on the message of December, 1823, as forming a bright page in our history. I will neither help to erase it nor tear it out; nor shall it be by any act of mine blurred or blotted. It did honor to the sagacity of the government, and I will not diminish that honor. It elevated the hopes and gratified the patriotism of the people over these hopes. I will not bring a mildew, nor will I put that gratified patriotism to shame."

The effect of this declaration in Europe was all that could have been desired by the patriotic statesmen who contributed their counsel to its adoption. The message arrived in England on December 24, 1823--twenty-two days after Mr. Monroe delivered it to Congress. On the second of January. Mr. Camming, the British Minister of foreign affairs, told the American Minister that the principles declared in the message, that the American continents were not to be considered as subject to future colonization by any of the powers of Europe, greatly embarassed the instructions he was about to send to the British Ambassador at St. Petersburg, touching the Northwestern boundary; and that he believed Great Britain would combat this declaration of the President with animation.

Its effect upon the then pending negotiations with Russia was so favorable, that the convention of 1824 was concluded in the Spring of that year, by the withdrawal on the part of the Emperor of his pretentious to exclusive trade on the Northwest coast, and by fixing the parallel of 54" 40' as the line between the permissible establishments of the respective countries.

This in brief is the history of the celebrated "Monroe Doctrine." It has never been affirmatively adopted by Congress, by any recorded vote, as the fixed and unalterable policy of this Republic; but its patriotic sentiment is so deeply bedded in the hearts of the American people of every political opinion, that Congress ought not and dare not ignore it.

But did not the United States Senate, when it ratified the Clayton-Bulwer Treaty in 1850, practically ignore the "Monroe Doctrine" and open the door for future trouble? Let us examine this treaty, which, in the light of present Congressional action, has become an important element in American politics, and see if it is not antagonistic to the American policy, and more than the _bete noir_ of partizan dreams. In order for a complete understanding of the terms, and bearing of this treaty, I deem it important to give a full synopsis, rather than a brief reference to its salient points:

THE CLAYTON-BULWER TREATY.

"A convention between the United States of America and her Britannic Majesty.

PREAMBLE.

"The United States and her Britannic Majesty, being desirous of consolidating the relations of amity, which so happily subsist between them, by setting forth and fixing in a convention their views and intentions with reference to any means of communication by ship canal, which may be constructed between the Atlantic and Pacific oceans, by way of the river San Juan de Nicaragua and either or both the lakes of Nicaragua or Manaqua, to any port or place on the Pacific ocean, the President of the United States has conferred full powers on John M. Clayton, Secretary of State of the United States, and her Britannic Majesty on the Right Honorable Sir Henry Lytton Bulwer, a member of her Majesty's most honorable Privy Council, Knight Commander of the most honorable order of Bath, and Envoy Extraordinary and Minister Plenipotentiary of her Britannic Majesty to the United States for the aforesaid purpose; and the said plenipotentiaries, having exchanged their full powers, which were found to be in proper form, have agreed to the following articles, _viz_:

Article 1. The governments of the United States and Great Britain hereby declare that neither the one nor the other will ever obtain, or maintain for itself, any exclusive control over the said ship canal; agreeing that neither will ever erect or maintain, any fortifications commanding the same, or in the vicinity thereof: or occupy, or fortify, or colonize, or assume or exercise any dominion over Nicaragua, Costa Rica, the Mosquito Coast, or any part of Central America. Nor will either make use of any protection which either affords, or may afford, or any alliance which either has or may have, to or with, any state or people for the purpose of erecting or maintaining any such fortifications, or of occupying, fortifying, or colonizing Nicaragua, Costa Rica, the Mosquito Coast, or any part of Central America, or of assuming, or exercising dominion over the same; nor will the United States or Great Britain take advantage of any intimacy, or use any alliance, connection, or influence, that either may possess, with any state or government, through whose territory the said canal may pass, for the purpose of acquiring or holding, directly or indirectly, for the citizens or subjects of the one, any rights or advantages in regard to commerce, or navigation through the said canal, which shall not be offered on the same terms to the citizens or subjects of the other.

Art. 2. Vessels of the United States or Great Britain traversing the said canal shall, in case of war between the contracting parties, be exempted from blockade, detention, or capture by either of the beligerents, and this provision shall extend to such a distance from the two ends of the said canal, as may hereafter be found expedient to establish.

Art. 3. The persons and property engaged in building the said canal shall be protected by the contracting parties from all unjust detention, confiscation and violence.

Art. 4. Both governments will facilitate the construction of said canal and establish two free ports, one at each end of said canal.

Art 5. Both governments will guaranty and protect the neutrality of said canal; provided, however, that said protection and guaranty may be withdrawn by both, or either governments, if both or either should deem that the persons building or managing the same adopt or establish regulations concerning traffic therein, as are contrary to the spirit and intention of this convention, either by unfair discrimination, in favor of the commerce of one contracting party over the other, or by imposing oppressive exactions or unreasonable tolls upon passengers, vessels, goods, wares, merchandise, or other articles,--neither party to withdraw such protection and guaranty without first giving six months notice to the other.

Art 6. Treaty stipulations maybe made with the Central American States, and states with which either or both parties have friendly intercourse; and settle all differences arising as to the rights of property in the canal, etc.

Art. 7. Contract to be entered into without delay, and the party first commencing labor, etc., in the construction of said canal, is to have priority of claim to construct the same, and will be protected therein by the parties to this treaty.

Art. 8. Both governments agree that protection shall be extended by treaty stipulations, hereafter to be made and entered into, to other communications or ways across said isthmus.

Art. 9. Treaty to be ratified by both governments and ratifications exchanged at Washington within six months."

This treaty bears date April 19, 1850, and is still in force in all its provisions.

Is there anything in the terms, conditions, or effect of this treaty, which in any way tends to militate or conflict with the declarations of the "Monroe Doctrine?"

To answer this question satisfactorily, and give a careful analysis of the treaty, in all its details, would take more time and space than I am at liberty to use; but I may be pardoned if I trespass a little and give a few reasons why I am come to the conclusion that the effect of the Clayton-Bulwer Treaty is to abrogate and annul to a great extent the cardinal principle of the "Monroe Doctrine."

In the first place the "Monroe Doctrine" was the accepted policy of this government as to all foreign intervention from 1823 to 1850, and with some of the leading minds of the country it has never ceased to be the paramount creed in the national catechism. During these twenty-seven years the project of building an inter-oceanic canal had been considerably agitated, in Congress and out, and had enlisted to some extent the sympathies of foreign powers who desired a shorter passage to the Pacific Ocean, the East Indies, and the markets of Cathay, than the stormy ones around the southern capes of either hemisphere.

This agitation finally culminated in diplomatic correspondence between the representatives of Great Britain and the United States relative to the construction of such a means of communication and the rights of the two nations to the same, resulting in the treaty. In April, 1850, the Senate of the United States, by a very large vote, ratified and confirmed this treaty, notwithstanding it was vigorously opposed by such men as Stephen A. Douglas and Lewis Cass, then in the zenith of their fame.

It appears in the Congressional record of 1850, and subsequently, that the treaty was ratified without a very clear understanding of its meaning; and it was even hinted, in rather plain language, that the representative of Great Britain had been too sharp, too diplomatic for his American brother, and had overreached him. It further appeared that the honorable Senate was sadly deficient in knowledge of geography, and national boundaries; for it is matter of record, that many Senators voted for the ratification under the impression that British Honduras was included in the territory of Guatamala, and that the British settlements were in that republic; while, as a fact, Balize or British Honduras was on the easterly side of the Isthmus, never had been a part of that republic, and the British settlements were, and always had been, in Yucatan. They further understood the treaty to say, that neither government should occupy, fortify, or colonize Nicaragua, Costa Rica, the Mosquito Coast, or any part of Central America; but it is a fact, that at the very date of the treaty, at the date of the ratification, and since, Great Britain occupied and colonized the Mosquito coast, or that part which joins British Honduras on the northerly side of South Honduras; and Mr. Douglas, in 1857, in a debate in Congress upon a "resolution of inquiry as to the present status of the treaty," said: "I voted against the treaty, Mr. President, for the reason that I am unwilling to enter into any stipulations with any European power, that we would not do on this continent whatever we might think it our duty to do, whenever a case should arise. I voted against it because by clause 1 of that treaty we are debarred from doing what it might be our duty to do; but as it has been entered into, I desire to see it enforced. I am not yet aware that that clause of the treaty has been carried into effect. I have yet to learn that the British Government have withdrawn their protectorate from the Mosquito Coast; I have yet to learn that they have abandoned the possession of that territory which they held under the Mosquito King."

From the day that treaty was ratified to the present, it has been a fertile source of discord and misunderstanding between the two governments; and from 1850 to 1858 its provisions were thrice made the basis of a proposal to arbitrate as to their meaning: their modification and abrogation have been alike contingently considered, and their imperfect and vexatious character have been repeatedly recognized on both sides. Even the present administration is laboring with the difficulty, and seeking some honorable way to free the treaty from its embarrassing features, or entirely abrogate it. President Buchanan, in 1858, characterized and denounced the treaty as "one which had been fraught with misunderstanding and mischief from the beginning;" and the leading statesmen of the country have felt that it was entirely inadequate to reconcile the opposite views of Great Britain and the United States towards Central America.

The Honorable James G. Blaine, late Secretary of State under the lamented Garfield, in his diplomatic correspondence with Lord Granville, in 1881, in summing up his review of the negotiations concerning this treaty, says: "It was frankly admitted on both sides that the engagements of the treaty were misunderstandingly entered into, improperly comprehended, contradictorily interpreted, and mutually vexatious."

An examination of the diplomatic correspondence and the Congressional Records of the years 1852-3-4 reveals what may perhaps be unknown history to many of my readers; that Great Britain within one year after she signed and ratified the Clayton-Bulwer Treaty, and agreed therein NOT "to colonize, fortify, or exercise control over, any part of Central America," did seize upon, colonize and partially fortify and exercise control over the five islands in the Bay of Honduras, called the Bay Islands; and that she did this in derogation of the declarations of the "Monroe Doctrine," and in direct violation and contempt of the Treaty, which she had so recently entered into; that this same national cormorant immediately surveyed and made a new geographical plan of Central America, in which she extended her province of Balize from the river Hondo, on the north, to the river Sarstoon on the south, and from the coast of the bay westward to the falls of Garbutts on the river Balize; or five times its original size; and then modestly claimed that her possessions were not in Central America, and therefore not within the provisions of the Clayton-Bulwer Treaty; that she has to this day continued her protectorate, as she calls it, of the Mosquito Coast, and that within six days after the Treaty of California, which secured to us that "pearl of the occident," she seized San Juan and occasioned a brief naval excitement at Greytown, the port of the San Juan river. This last kick by Great Britain at the treaty she had so solemnly promised to abide by was the most barefaced and impudent of all; for it was at that time supposed by every body who had considered the question of an inter-oceanic canal, that if built at all it would be by way of the San Juan river, Lake Nicaragua, and across Nicaragua to the Pacific; thus making Greytown the important port of said canal, and the key to the control of the entire commerce thereon.

The diplomatic correspondence which followed this high-handed outrage, like all the diplomatic (?) correspondence concerning Central America, while firm and bold on the part of this government, yet lacked that moral force, national importance, and perfect fearlessness, which the fetters imposed by the treaty prevented us from using or exhibiting.

With the treaty out of the way, and the principles of the "Monroe Doctrine" imprinted as a legend upon our banners, we should have stood on unassailable ground; have exhibited a national importance and vitality--an uncompromising firmness, courage and dignity that would have carried conviction, achieved immediate and honorable success, and commanded the respect of the civilized world. But fettered, tantalized, and weakened, by the ambiguities and inconsistencies of this co-partnership treaty, the United States government was compelled to temporize, argue, and explain, and finally compromise with her co-partner, and graciously allow the disgraceful fetters to remain.

Did Great Britain withdraw her protectorate? No. Did she withdraw her colonies from the Bay Islands? No. Did she give up her new geography of Central America, and restore Balize to its original territory? No. Did she yield a single point in the controversy, except to give up and repudiate as unauthorized the seizure of San Juan? No. Not in a single instance when the territory of Central America was at stake, and the provisions of the treaty were concerned, did she yield a single point; but she has even claimed and argued, that under the proper interpretation of the terms of that treaty she may hold all that she then enjoyed, and all that she can seize or buy, which is more than five statute miles from the coast line of any part of Central America; because, as she says, the treaty means the political, not the geographical Central America, and the political Central America is that part only of the continent which is contained within the limits of the five Central American republics; while the geographical Central America comprises all the territory and adjacent waters which lie between the republic of Mexico and South America; and that as Balize, Yucatan, and the Bay Islands, were not within the limits of the five Central American republics, they are no part of the Central America designated and intended in the treaty, and are not included in the term "other territory" used in said treaty.

The United States on the other hand claimed that the express language of the treaty, to wit: "that neither will occupy, or fortify, or colonize, or assume, or exercise any dominion over Nicaragua, Costa Rica, the Mosquito Coast, or any part of Central America," means the geographical Central America, including all that is not specifically enumerated from Mexico on the north, to New Grenada or the United States of Columbia on the south; that the claim of Great Britain was not a tenable or reasonable one, and that the understanding was, that neither government should thereafterwards acquire, or assume any control over, any part of the territory lying between Mexico and South America.

In the year 1853, during the discussion in the Senate upon the resolution of inquiry presented by Mr. Douglas, Mr. Clayton, then Senator from Delaware, admitted that the ambiguity of the treaty is so great, that on some future occasion a conventional article, clearly stating what are the limits of the Central America named in the treaty, might become advisable.

This admission, from the lips of the very man who so diplomatically (?) represented the United States in the making of this vexatious treaty, is rather significant, and aids us of this generation in coming to the conclusion that the Clayton-Bulwer Treaty is a disgrace to this republic, and ought to be at once abrogated.

Another historical fact, with which few are familiar, and which shows the animus of this treaty, is this: In 1849 Mr. Hise, our minister at Nicaragua, reported to the Honorable Secretary of State that Nicaragua had offered to the United States, through him, "the exclusive right to build, maintain, and forever control an inter-oceanic canal across that republic; and offered to enter into treaty stipulations to that effect." Mr. Hise strongly urged the acceptance of this offer, and prepared and forwarded to the State Department a treaty, accepted by the government of Nicargagua, which confirmed in specified terms the offer of full and complete control and government of said canal. For reasons best known to the Department of State, this treaty, called the Hise treaty, was never accepted or presented to the Senate for ratification and adoption, but was somehow quietly smothered, and the Clayton-Bulwer co-partnership treaty reported and adopted in its stead.

It will be seen at a glance, by even the most careless political tyro, that the Hise treaty was directly in line and accord with the express principles of the "Munroe Doctrine;" and that it would have given to this country the exclusive rights, which under the treaty adopted it must share with its co-partner, Great Britain. Had the United States accepted the offer made by Nicaragua, and thus obtained the exclusive privilege of opening and controlling the canal, we could have opened it to the commerce of the world, on such terms and conditions as we should deem wise, just, and politic; and it would have been more creditable to us as a nation to have acquired it ourselves, and opened it freely to the use of all nations, rather than to have entered into a co-partnership by which we not only have no control in prescribing the terms upon which it shall be opened, but lose the right of future acquisition and control of Central American territory. Had we accepted it (or should we accept the recent offer of Nicaragua to the same general effect) we should have held in our possession a right, and a might, which would have been ample security for every nation under heaven to have kept the peace with the United States.

Honorable Stephen A. Douglas, in commenting upon the conduct of the State Department of 1849 and 1850, said: "When we surrendered this exclusive right we surrendered a great element of power, which in our hands would have been wielded in the cause of justice for the benefit of all mankind."

"But suppose," said Senator Clayton in reply, "that Great Britain and other European powers would not have consented to our exclusive control of a canal, in which they, as commercial nations, had as much, and more interest, that we had?"

"Well, then," in the language of Senator Douglas, "if Nicaragua desired to confer the privilege, as it appears she did, and we were willing to accept, it was purely an American question with which England or any other foreign power had no right to interfere, or claim to be consulted, no more than we could claim to be consulted when the Holy Alliance sought to establish the equilibrium of Europe. We were not consulted then, and in matters purely continental we have no occasion to consult them; and if England, or any other foreign power, should attempt to interfere, the sympathies of the rest of the civilized world would be with us."

The policy of England has always been an aggressive one. While for nearly seventy years she has professed a friendship and national harmony with the United States, she has not ceased to plant her colonies and establish sentry boxes on every sea-girt island, that she could control, within a short voyage of our coast; while she has Gibraltar to command the entrance to the Mediterranean, a garrison at the Cape of Good Hope to control the passage to the Indies, she also maintains on the Bahamas and the Bermudas, in her well-equipped garrisons, vigilant sentinels whose eyes are ever watching the western continent in obedience to the royal behest; and in the magnificent island of Jamaica she has established, and maintained at enormous expense, a fortified and well-garrisoned naval station, which practically controls the Caribbean sea, the Gulf of Mexico, Central America, and even the contemplated canal itself; and yet not content with all this readiness and armament for aggressive war, she creeps still nearer the coveted prize and on the Bay Islands, almost in sight of the proposed canal, she plants her royal banner, and holds the key as the mistress of the situation; so that in case of war between the two countries she is well prepared for a quick and vigorous blow at the life of this republic.

She may have no occasion for many years to strike such a blow, but she will wait in readiness; and woe be to that national simplicity which puts its faith in princes, and takes no heed for the future.

What, then, is the duty of this republic in regard to the Central American problem? Shall we abrogate the patriotic principles contained in the declarations of the Monroe doctrine, and confess that we have no definite American policy? Shall we withdraw from the honorable and patriotic position of defender and upholder of republicanism on this continent, and permit the royal wolves of devastation to run wild over our sister republics, because, forsooth, in an evil hour, we were led into an alliance which, under the name of a treaty, has embarrassed our action, clouded our judgment, and involved our self-respect? Shall the great American Nation, with its untold resources, its magnificent capabilities, and its sublime faith in the manifest destiny of this republic, calmly submit to the errors, mistakes, aye, blunders of its aforetime rulers, and under a mistaken sense of honor continue to be bound hand and foot by the terms of that pernicious treaty which might well be called the covenant of national disgrace?

I maintain that it is an utter impossibility for a treaty-making power to impose a permanent disability on the government for all coming time, which, in the very nature and necessity of the case, may not be outgrown and set aside by the laws of national progression, which all unaided will render nugatory and vain all the plans and intentions of men. In the language of Honorable Edward Everett, in his famous diplomatic correspondence with the Compte De Sartiges in relation to the Island of Cuba, in 1852, when asked to join England and France in a tripartite treaty, in which a clause was embodied forbidding the United States from ever acquiring or annexing that Island to this republic, "It may well be doubted, whether the Constitution of the United States would allow the treaty making power to impose a permanent disability on the American government for all coming time, and prevent it under any future change of circumstances from doing what has so often been done in the past. In 1803 the United States purchased Louisiana of France, and in 1819 they purchased Florida of Spain. It is not within the competence of the treaty-making power in 1852 effectually to bind the government in all its branches, and for all coming time, not to make a similar purchase of Cuba. There is an irresistible tide of affairs in a new country which makes such a disposition of its future rights nugatory and vain. America, but lately a waste, is filling up with intense rapidity, and is adjusting on natural principles those territorial relations which, on the first discovery of the continent, were, in a good degree, fortuitous. It is impossible to mistake the law of American progress and growth, or think it can be ultimately arrested by a treaty, which shall attempt to prevent by agreement the future growth of this great republic."

The good faith of this nation demands that we should live up to all our treaties and agreements, so far as it is possible to do so; but when in the course of events, and by reason of the fixed decrees of growth, we are not able to do so, then it becomes us, in honor and fairness to others, as well as to ourselves, to take immediate measures to modify, and if necessary entirely rescind them, let the consequences be what they may.

The genius of America is progressive, and the pluck and activity of the average American is unsurpassed. Who shall say, then, that Central America shall never become part of this Republic, which now increases its population over a million each year? What statesman shall now in the light of experience seek to bind this nation within the limits of a treaty, that these United States will not annex, occupy, or colonize any new territory? If the Nicaragua Canal shall ever be constructed, will not American citizens settle along its line, and Yankee enterprise colonize, and build Yankee towns, and convert that whole section into an American state? Will not American principles and American institutions be firmly planted there? And how long will it be before the laws of progress shall require us to extend our jurisdiction and laws over our citizens in Central America--even as we were obliged to do in Texas? Perhaps not in our day and generation, but in the words of the lamented Douglas, "So certain as this republic exists, so certain as we remain a united people, so certain as the laws of progress, which have raised us from a mere handful to a mighty nation, shall continue to govern our action, just so certain are these events to be worked out, and you will be compelled to extend your protection-in that direction. You may make as many treaties as you please, to fetter the limits of this great republic, and she will burst them all from her, and her course will be onward to a limit which I will not venture to prescribe. Having met with the barrier of the ocean in our western course, we may yet be compelled to turn to the North and to the South for an outlet."

With a distinctly American policy, such as the Father of his Country foreshadowed and advised, when in his farewell address he warned us against "entangling alliances with foreign powers;" such as President Monroe bequeathed to us in the declarations of the "Monroe Doctrine," we shall be more likely to achieve honor and renown; national prosperity and universal respect, than can ever be ours, while fettered and bound, by the galling chains of an entangling, unwise, and unfair treaty.

* * * * *

THE DIVORCE LEGISLATION OF MASSACHUSETTS.

By Chester F. Sanger.

There evidently exists just at the present time a great and increasing interest in the old and much debated subjects of divorce, and divorce legislation; an interest which is intensified as the population of our younger states with their widely varying laws governing this matter increases and the dangers and opportunities for fraud grow more apparent. Naturally enough, therefore, public attention is invited to these different laws of the several states of our Union, some allowing divorce for one cause, others refusing it upon the same ground, and one state, at least, refusing to grant a divorce for any cause whatever. The remedy for this seems to many to be a national divorce law, establishing in all the states a uniform mode of procedure and a uniform basis upon which all petitions for divorce must be grounded; it must also fix the status of the parties in every state and prescribe the several property rights of each after the entry of the judicial decree which separates them from a union, not of God, as some would try to teach, but often from fetters, the weight and horror of which are known to the parties alone, or to those, who, unlike our theoretical reformers, have had some practical experience in the actual operation of our divorce courts.

While it is a fact, overlooked by the enthusiasts on this subject, that no such national law can be passed without an amendment to the constitution, since the passage of such an act would be an invasion of the rights reserved to the several states; yet in view of this widespread interest in the question, the development and present condition of the laws regulating divorce in our own Commonwealth becomes an interesting matter of inquiry. While such a discussion has little or nothing to do directly with the moral aspects of the subject, it is well to note in passing that the doctrine of the indissolubility of the marriage relation was not made a tenet of the church until as late as 1653. The Mosaic Law made the husband the sole judge of the cause for which the woman might lawfully be "put away," and many Bibical scholars of great attainments have maintained that when rightly interpreted the words of Christ do not restrict divorce to the single cause of actual adultery, while elsewhere in the New Testament divorce for desertion is expressly sanctioned.

The Roman Catholic Church, while it pronounced the marriage tie indissoluble, at the same time reserved to the Pope the right to grant absolute divorce, a right which was often exercised for reward, while her Ecclesiastical Courts in the meantime declared many marriages null and void upon so-called impediments established solely upon the confession of one or the other of the parties seeking divorce. This course is hard to explain satisfactorily if we admit a sincere belief in the justice of her own dogma. It was from this practice of the Church that came the custom of granting partial divorce, or, as it was termed, divorce from bed and board--a divorce which was one only in name, and made a bad matter worse, surrounding both parties with temptations, and being, as it has been said, an insult to any man of ordinary feelings and understanding. It was, to be sure, an attempt to comply with the established doctrine of the Church, but it was a compromise with common-sense. To this same source may be traced the curious procedure in England, known as a suit for the restoration of conjugal rights, wherein a husband or wife, who, being unable to obtain a a genuine divorce, had separated from his or her partner for cause, might be compelled by the power of the law to return to the "bliss too lightly-esteemed."

There is one state in our Union in which, as one of her Judges puts it, "to her unfading honor," not a single divorce has been granted for any cause since the Revolution. But the fact remains, not so much to her unfading honor, perhaps, that she has found it necessary to regulate by statute the proportion of his property which a married man may bestow upon his concubine, while at the same time adultery is not an indictable offence. Another of her Judges has said from the bench, "We often see men of excellent characters unfortunate in their marriages, and virtuous women abandoned or driven away houseless by their husbands, who would be doomed to celibacy and solitude if they did not form connections which the law does not allow, and who make excellent husbands and wives still."

This judicial utterance makes an excellent basis for the statement that it is better to adapt the law to facts as we find them, than to proceed on the principle that as there is no redress called for save where there is a wrong, if we do not allow the redress, there will, of course, be no wrong. There is no escape from the conclusion that divorce or irregular connections will prevail in every community; why not agree with Milton that honest liberty is the greatest foe to dishonest license?

When the founders of the new Commonwealth came to these shores they brought with them of necessity the laws of the mother country, and so we shall find that the divorce laws of England, as they existed at that time, were the early laws of the colonies of Plymouth and Massachusetts Bay. The Ecclesiastical courts of England were invested with full jurisdiction of all matters of divorce, but from about the year 1601 they had steadily refused to grant an absolute divorce for any cause whatever, although they as constantly granted divorce from bed and board, allusion to which has already been made; that is, they decreed a judicial separation of man and wife, which freed the parties from the society of each other, but at the same time left upon them all the obligations of the marriage vow as to third parties. Finally, when divorce was sought for cause of adultery, resort was had to parliament, and in 1669 an absolute divorce for that cause was granted by that body for the first time. This mode of procedure was, of course, a most expensive one, and during the seventeenth century but three decrees absolute were granted, the parties in each belonging to the peerage and the cause being the same.

In cases arising in the early history of the colonies we should therefore expect to find the law as I have briefly sketched it as existing in England, and as there were then no courts exercising the functions of the Ecclesiastical Courts we might safely look for the exercise of these powers by the Court of Deputies, or General Court, which was at that time not simply a deliberative body, but also a court of most extensive and varied jurisdiction, in matters both civil and criminal. This was precisely the fact; the records show that in 1652 Mrs. Dorothy Pester presented to the General Court her petition for leave to marry again, giving as her reason the fact that her husband had sailed for England some ten years before, and had not been heard from since. The court decreed that liberty be granted her to marry, "when God in his providence shall afford her the opportunity." In 1667 the same court refused to grant a like petition, for the reason that they were not satisfied by the evidence that the husband had not been heard from for three years.

One year prior to this appears the first record of a divorce in the Plymouth colony, which, taken in connection with the two cases just referred to, throws a bright light on the unwritten laws then regulating this matter. Elizabeth, wife of John Williams, appeared with a petition asking for a divorce, and complaining of her husband because of his great abuse of, and "unaturall carryages towards her, in that by word and deed he had defamed her character and had refused to perform his duty towards her according to what the laws of God and man requireth." Her husband appeared and demanded trial of the issue by jury, who found the complaint to be just and true. Thereupon the deputies "proseeded to pase centance" against him as follows: "that it is not safe or convenient for her to live with him and we doe give her liberty att present to depart from him unto her friends untill the court shall otherwise order or he shall behave himself in such a way that she may be better satisfyed to returne to him againe." He must also "apparell her suitably at present and provide her with a bed and bedding and allow her ten pounds yearly to maintaine her while she shall bee thus absent from him," and to ensure the faithful performance of the decree of the court he must "put in cecurities" or one third of his estate must be secured to her comfort. As he has also defamed his wife and otherwise abused her, it is further decreed that he must stand in the market place near the post, with an inscription in large letters over his head which shall declare to all the world his unworthy behavior towards his wife. And as though the poor man was not yet sufficiently punished they go on to say that "Inasmuch as these his wicked carriages have been contrary to the lawes of God and man, and very disturbing and expensive to this government, we doe amerce him to pay a fine of twenty pounds to the use of the Colonie." One is inclined to think upon reading this rather severe "centance" that if the law of our day was somewhat similar the divorce docket would not be so long as at present.