The Bay State Monthly, Volume 3, No. 1

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.