A century of constitutional government in the United States has served to emphasize the wisdom of Hamilton's warning of “the tendency of the legislative authority to absorb every other.” He clearly foresaw and attempted to guard against, dangers that today are only too apparent. “In governments purely republican,” he wrote, “this tendency is almost irresistible. The representatives of the people, in a popular assembly, seem sometimes to fancy that they are the people themselves, and betray strong symptoms of impatience and disgust at the least sign of opposition from any other quarter; as if the exercise of its rights, by either the executive or the judiciary, were a breach of their privilege and an outrage to their dignity. They often appear disposed to exert an imperious control over the other departments; and, as they commonly have the people on their side, they always act with such momentum as to make it very difficult for the other members of the government to maintain the balance of the Constitution.”

Never did human ingenuity devise a more nicely balanced system of government than when the framers of the Constitution allocated to the executive and to the legislature the exercise of powers not to be infringed by the other; but like many things human the intent has been perverted. Every person familiar with the Constitution, the debates in the convention, and the writings of Madison, Hamilton, and Jay in The Federalist, must know that the purpose of the framers of the Constitution was to create a system of government by which the President should become neither the creature nor the controller of the legislature; and by vesting certain exclusive powers in the popular branch and certain other powers in the Senate to provide that the line of demarcation between the two houses should not be overstepped.

The present paper deals with the circumstances under which the right of self-government was acquired by the province of Canada. It is concerned chiefly with the period that elapsed between the presentation of Lord Durham's report, in which “responsible government” was recommended, and the passing of the Rebellion Losses Bill of 1849, whose sanction by Lord Elgin indicates the final and complete adoption of this principle. Special emphasis is laid upon the constitutional crisis that occurred under the administration of Sir Charles Metcalfe with a view to placing in its proper historical perspective the influence exercised by the colonial reform party in the evolution of the imperial system. It is the aim of the paper to show that the interpretation of the principle of responsible government now prevailing was not present in the minds of imperial statesmen at the time of the adoption of the Act of Union of 1840, commonly assigned as the date of the inception of self-government. The essay is based upon the papers of Lord Sydenham and Lord Metcalfe, the collection of Baldwin pamphlets in the Toronto Public Library, certain official documents of the Canadian archives, and other original sources which the writer has had occasion to consult in preparing his biographies of Baldwin, LaFontaine, and Hincks in the Makers of Canada Series.

Next to the conception of a visible church, no abstraction has had such an effect upon the minds of men as the idea of the State as an organization. The Roman Imperium has been a regnant principle in Europe for twenty centuries, against which the church in the Middle Ages made head with its doctrine of “The Two Swords”—church and empire. To the French mind “L'Etat” is something different from the body of Frenchmen or the French nation; and the old fashioned English idea of “God and the King” expressed a conception of an abstract sovereign power. It is strange that the people who have done most to alter the world's acceptance as to what government ought to be, have furnished no political creative mind, formulated no accepted philosophical basis for their government, and justify Bryce's dictum that the Americans have had no theory of the State, and have felt no need for one. “Even the dignity of the State has vanished. It seems actually less than the individuals who live under it—the nation is nothing but so many individuals. The government is nothing but certain representatives and officials.” Or as Tocqueville puts it: “As they perceive that they succeed in resolving without assistance all the little difficulties which their practical life presents, they readily conclude that everything in the world may be explained, and that nothing in it transcends the limits of the understanding.” It is true that the Americans are people who would speak disrespectfully of the equator if they knew of its existence; yet no people is more profoundly influenced by a body of political doctrine, only their point of view is that they practice freedom, equality and self-government, and therefore suppose that there must be definite principles behind those usages. While the French with their national acuteness in analysis and generalization deduce the principles of liberty from the nature of man and then strive to work them out in practice, the American theory of government is to be sought, not in treatises on political ethics or the disquisitions of American statesmen, but in the acts of assemblies, votes of conventions, proclamations of presidents and governors, and the thousand instances of exercise of an accepted authority.

The problem of devising forms of government for the insular dependencies that came to the United States as a sequel to our war with Spain presented, among others, this very special aspect; that the governments to be created should at one and the same time provide for a maximum of efficiency and carry with them the largest possible grant to the people governed of powers to manage their own affairs. The securing of either one of these considerations alone would have been a simple matter. Had the United States acquired Porto Rico and the Philippines under no moral obligation to extend to them the principles of self-government, the maximum of efficiency could easily have been attained by simply vesting all governmental powers, legislative, executive and judicial, in a few appointed officials, and holding them to a rigid accountability for the manner in which they might perform their duties. Or, the grant of self-government could have been attained by providing for a liberal form of government under which the islands would be left free to work out their own destinies with all of the dangers of misrule and inefficiency that the experience of other Latin-American countries has demonstrated to be present. To accomplish both, meant that means had to be devised for harmonizing these two considerations, which in their nature were more or less antagonistic, and that, in consequence, the problem to be solved was vastly more complicated and delicate than it otherwise would have been.

The Third International Conference of American States, which was held in Rio de Janeiro in July and August, 1906, differed in some important respects from the two conferences which had preceded it. While it was left to the conferences of Washington and of Mexico City to arrange their own programs and to determine upon their rules and regulations, and while no limit was set to the length of their sessions, all these matters had, in the case of the last conference, been settled beforehand by arrangement of the diplomats representing the American States in Washington who constitute the council of the Bureau of American Republics. A complete program had been worked out, containing all the subjects upon which joint action was considered desirable. A set of rules and regulations also had been adopted and the length of the session had been fixed not to exceed six weeks. The conference when it convened was, therefore, saved all the trouble and loss of time which a discussion of these matters would have made necessary had they been left to the conference itself. As a matter of fact the discussion of these preliminary matters consumed several months at both the conferences of Washington and of Mexico.

The Constitution of the United States as amended provides that “The right of citizens of the United States to vote shall not be denied or abridged by the United States or by any State on account of race, color, or previous condition of servitude.” These words are plain. Everybody understands them. They mean, and every one knows that they mean, that, from the constitutional point of view, one question relative to the suffrage is no longer open. That question is the very one about which I am asked to write. From the political point of view, from the historical point of view, from the social point of view, from the economic point of view, and from the ethical point of view, there is much to be said about negro suffrage. For centuries yet to come there may be much to be said. From the constitutional point of view, accurately defined, there has been nothing to say since March 30, 1870. On that day the Secretary of State of the United States proclaimed that the Fifteenth Amendment had been ratified by the legislatures of twenty-nine out of the then thirty-seven States. The apparent assent of a number of these legislatures, perhaps, had not been a real assent. It might have been given under duress. Still, it had been given. The men who assumed to be the legislatures of other of these States may have had little moral and a very doubtful legal right to speak for them.

The Japanese protest of October 23, 1906, against the action of the San Francisco board of education, based on a California statute requiring all children of Mongolian descent to attend the school set apart for orientals, is one of the most puzzling incidents in our recent diplomatic history. It was sufficiently perplexing to the friends and admirers of Japan to learn that her government had created an international issue out of such a trivial matter as the segregation of less than one hundred Japanese pupils in the oriental school of San Francisco. But some of the friends and supporters of the administration were still more surprised to hear that the federal government admitted that the treaty of 1894 with Japan had been violated by this action of the San Francisco board of education, and apparently believed that it had jurisdiction in the premises.

It is true that Secretary Metcalfe's report, which was published on December 19, 1906, also informed us of a considerable number of assaults on Japanese subjects by “hoodlums and roughs,” and of the breaking of windows in Japanese restaurants in San Francisco. These attacks, although subsequent to the earthquake, occurred at a time of great public disorder during which there appears to have been a carnival of crime when the police were powerless to protect life and property; but they seem to have been directed against the Japanese from motives of race prejudice, and not for the purpose of robbery.

The suffrage clauses recently adopted by six of the Southern States, beginning with Mississippi in 1890 and ending with Virginia in 1902, have disqualified for the elective franchise a majority of the negroes of voting age without appreciably diminishing the possible number of white voters. In other words, there have been racial distinctions in the matter of suffrage without their being so defined in the letter of the law. Now, the question is: Are these suffrage distinctions the only racial distinctions found in the Southern law, either expressed or implied, or are they only members of a group of such distinctions which have been evolving since the negro has been a free man? In this paper it shall be my aim to show briefly that the latter is the case, that there are other racial distinctions recognized in the Southern law, that some of the distinctions once present in Southern codes and constitutions have since been dropped, and that others have been introduced from time to time. And by making the suffrage distinctions only links of a chain, I hope that we shall arrive at some conclusion as to the trend of Southern legislation with regard to the negro.

The general subject of racial distinctions is practically limitless in extent. Many of these distinctions are as intangible as race prejudice itself and take various methods of expression. Instead, therefore, of undertaking a general discussion of this inexhaustible subject, I shall narrow it to more manageable proportions by treating only one of its many phases.

Throughout classical and medieval philosophizing runs a theory of a paramount or fundamental law, permanent in kind, because fixed in nature. This theory in its modern form, after voicing itself for a time in the Cromwellian period, came to the front in the American Revolution and found its proper expression in the written constitution. In our federal system, owing to the rigidity of the national Constitution, the development of that document must be traced in the varying decisions of the Supreme Court of the United States. In the Commonwealths a more flexible system of amendment prevails, and for that reason changes in what the States consider to be their fundamental law, may be traced more easily in the constitutions themselves, subject as they are to frequent revision and amendment.

In the Revolutionary period these constitutions were few in number, small in size, and contained a mere framework of governmental organization. Since that time some two hundred State constitutions have been made or revised. The forty-five now in force average in length over fifteen thousand words, the longest, that of Louisiana, having about forty-five thousand. In place of fundamentals only, they are filled with details, so petty in many instances, as hardly worthy even to be dignified as statutory.

The Federal Constitution provides that no person shall be deprived of life, liberty or property without due process of law, and vests in the Federal Supreme Court the ultimate power to determine what is due process. The legality of any interference with person or property may always be questioned in judicial proceedings, and therefore depends, in the last analysis, upon its conformity to a rule of law laid down by the courts.

The most usual method of disturbing the individual in the enjoyment of his personal and property rights is by judicial proceedings, and no person without authority of some branch of the government can constitutionally imprison him or permanently appropriate his property by any other means. Conceivably, the doctrine might have obtained that the government and its agents acting in official capacities must also have recourse to the courts in any undertaking affecting private rights. But “due process” has been interpreted as meaning process in conformity with certain fundamental principles, rather than any specific and required mode of procedure. The courts have held that, in certain instances, the government may interfere with private rights through the action of its administrative agents, and that such agents may be vested with the power of final and conclusive determination of the facts on which their action is based.

Emmanuel Mortensen, residing at Grimsby, on the thirtieth of November, 1905, being master of the trawler Niobe, of Sandefiord, Norway, was charged, contrary to a bye law adopted pursuant to a British statute, with using the method of fishing, known as otter trawling, in a part of the Moray Firth, five miles or thereabouts by east by north from Lossie-Mouth, which lies within a line drawn from Duncansby Head, in Caithness, to Rattray Point, in Aberdeenshire and is within the area specified in the bye law referred to, made by the fishery board for Scotland, under a power conferred by statute, which bye law had been duly confirmed by the secretary for Scotland, and duly published. He was thereby liable to a fine not exceeding 100 pounds, on conviction, and, on failure to pay, to not exceeding sixty days imprisonment and to forfeiture of his nets. At the trial, defendant stated, as a preliminary objection, that his steam trawler was registered in Norway, and the locus of the offense as alleged was not within the jurisdiction of the court and, reserving this plea, pleaded “not guilty.” It was proved said trawler was registered in Sandefiord, Norway, and that defendant was a Dane; that he did the act in the plea alleged, and that this was outside a marine league from low water mark on the adjacent coast, and within ten miles thereof.

The sheriff “repelled” the preliminary objection, found defendant guilty, imposed a fine of fifty pounds, and, in default, sentenced the accused to fifteen days' imprisonment. Defendant paid the fine and appealed, and the questions of law submitted to the high court of justiciary were, whether the sheriff's court had jurisdiction, and whether the conviction and sentence were “legal and competent.”

The right of the people, acting within the bounds of the law and through organs constituted in conformity with the prescriptions of the existing constitution, to alter, amend, or abolish their form of government whenever they deem it necessary to their safety and happiness is, in effect, declared by practically every American bill of rights to be not only fundamental but inalienable and indefeasible. The phraseology differs in some of them but the substance is the same in all. Without such a right the mistakes and errors of the past could not be eliminated from the body politic nor the accumulated wisdom and experience of other States utilized. Without it, the fundamental maxim that constitutions grow instead of being made would be meaningless and political development impossible. An acute thinker has well observed that no constitution can expect to be permanent unless it guarantees progress as well as order. Political conservatism is a virtue too often trampled upon by statesmen, but it has its limits, and, in its exaggerated form, becomes a source of revolution. The amending power has been aptly compared to a safety valve which ought to be so adjusted as not to discharge its peculiar function with too great facility lest it become an escape pipe for party passion and political prejudice, nor with such difficulty that the force needed to induce action will explode the machine.

For several years the plan of publishing an annual index or summary of foreign legislation has been under discussion among American students of political science. The Librarian of Congress has recommended that such a publication be undertaken by the United States Government, and it seems possible that his efforts in this direction may finally be successful. Information concerning foreign legislation is now difficult to obtain, and the usefulness of a publication that would make more easily available the substance of current foreign laws is well recognized.

The demand for information of foreign legislation may be said to come from three sources: (1) From practicing lawyers who handle cases involving the laws of other countries. The increasing American investments abroad and the closer social relations which have developed between the United States and foreign countries make it necessary that our lawyers should know something of the legal institutions of other nations. In our great seaboard cities lawyers have already begun to devote themselves to foreign law as a specialty, and important legal firms find it necessary to have foreign connections. (2) Our legislators are beginning to look more closely into the experiences of other countries. Statesmen are coming to see that one country may well prove a laboratory for others in the field of social legislation, and to wish to profit by foreign successes and to avoid foreign failures. Germany has gone very far in the matter of governmental insurance and in legislation for the protection of labor, and it is within these fields that we may expect future legislation in the United States.