as business men term it-should have an opportunity to make a fresh start unhampered by claims of their old creditors. A Bankruptcy Act such as is in force in almost every civilized country of the world except Canada, would remedy both the above-mentioned evils, and many others. There are many other real reforms the country needs, but I will not tire you. with any more.

In conclusion, I desire to thank the members of the Council of the Association for their very great kindness to me. during my tenure of office. I shall always gratefully remember how promptly, readily and willingly they responded to every one of my requests and suggestions.

May the New Year be a happy and prosperous one to all of you, and happy to many more whose happiness depends

on you.

MODERN IDEAS OF PROPERTY.

In an address recently delivered before the American Federation of Labor at Seattle, the U. S. Secretary of Labor, referring to the disputes between the owners of copper mines in Michigan and their workmen, stated:

"If any individual or corporation takes the ground that property is his own, that he has the right to do with it as he pleases, and fails to take into consideration the fact that the title has only been conveyed to him as a trustee for the welfare of society, then he is creating a condition that will cause society to modify or change these titles to property, as it has a perfect right to do whenever in its judgment it deems it for the welfare of society to do it."

In view of these somewhat startling declarations, it will be necessary for the student of Blackstone to re-examine the principles of ownership of lands and chattels which he was accustomed to suppose lay at the very basis of civilized life, and to compare them with these strange doctrines which a modern and socialistic world is beginning to substitute for them.

It is safe to say that the doctrine above enunciated of a trusteeship of private property for public use has no warrant in English or American law to-day, is opposed to every principle of property ownership as hitherto understood among civilized peoples, and, if carried into effect upon lines indicated by socialistic teaching, would bring about the speedy downfall of civilization. Yet it is equally sure that in this direction is the trend of modern social legislation in both England and America.

If we examine the reasons leading up to these changed ideas relating to private property, we find them in the more general extension of education among the masses of the people, inducing more expensive modes of living and more wide-spread dissatisfaction with the poverty which exists. Beyond this, it cannot be gainsaid, will be found an unconcealed envy and concomitant hatred of the rich and a frankly expressed desire to despoil them of their possessions. Other reasons advanced are that most of the gigantic fortunes which the past half century has brought forth, were accumulated by public or private fraud or by the robbery of the poor; that it is not in the interest of the

State that such great aggregations of capital should be used at the bidding or in the selfish interest of one man, possibly for purposes of bribery of Courts or of officials; that the permitted transmission of such gigantic sums by inheritance or by will is a menace to the public and tends to create and preserve in the community a class of the very rich who are of no value to the State. Where the question is confined to real property, we find the argument advanced that occupancy of some land is a necessary condition of the life of a human being, that the land held by any race or nation is charged with their support; that it is upon the land that the State must grow and nourish the soldiers who are to defend it from foreign attack.

The relations between employers and employed have, in the light of modern legislation, taken on an entirely new aspect. The old doctrine of the Common Law required, to enable a plaintiff to recover against his employer in a negligence case, that the plaintiff should shew that the employer owed the employed some duty which he failed to discharge; for where there was no duty, there was no actionable negligence. The doctrine of the Employers Liability Statutes of to-day places the liability to pay for accidents upon the shoulders of the employer because accidents are regarded as inevitable, somebody must pay for them and the employer has the broadest shoulders for the burden-which is, indeed, one reason often given for the old public policy of holding the master responsible to third parties for acts of his servant done within the scope of employment.

If the very rich are, as seems now probable, to be despoiled of their wealth by an envious mob possessed of voting power, it is evident that the weapons to be employed to effect this result are a sharply graduated income tax, a similar inheritance tax and possibly radical interference by statute with the present free right to transmit property by will or upon intestacy. Both branches of the English speaking race are now acquainted with the unpleasant features of income taxation and inheritance taxation. Are the long recognised rights to make a will or transmit property to heirs and next-of-kin upon intestacy to be made subject to curtailment?

In a speech delivered at the National Democratic Club in April last, Vice-President Marshall gave utterance to

VOL. XXXIV. C.L.T.-2

certain views upon the duties, dangers and possible fate of rich men in the American Republic which have since provoked much criticism, chiefly adverse. Some few days later, in Washington, he stated that "the right to inherit and the right to devise are neither inherent nor constitutional, but on the contrary, they are simply privileges given by the State to its citizens," and he proceeded, "men of judgment have expressed to me the opinion that were a vote to be taken on the proposition that all estates over $100,000 revert to the State upon the death of the owner-the $100,000 being exempt-it would be carried two to one."

Notwithstanding the storm of disapproval brought on by these remarks, there can be little doubt that the opinions they express are well founded. They have, however, been directly challenged by eminent American writers. It has been contended that the right to transmit property of a decedent by will, or to have this property descend to heirs and next-of-kin, is a constitutional right protected by Article XIV. of the Constitution of the United States; and that any legislation denying or substantially imparing this right would be unconstitutional and void. Without doubt, the Courts will protect against capricious, unreasonable, arbitrary or confiscatory taxation of property (Matter of Pell, 171 N. Y. 48; People v. Equitable Trust, 96 N. Y. 387; Conolly v. Union Sewer Pipe Co., 184 U. S. 540; Nichol v. Ames, 173 N. S. 509); but what property has a devisee, heir or next-of-kin if the State refuses to concede it? The basic misconception of the contention appears to lie in regarding inheritances as property. It is lawful for the State to withhold altogether the privilege of acquiring property within its dominion by will or inheritance (Wallace v. Myers, 38 Fed. Rep. 184.) The estate does not belong to next-of-kin, heirs or devisees unless a right to it is conferred by the State (Plummer v. Coler, 178 U. S. 115; Magoun v. Illinois Trust & Savings Bank, 170 U. S. 283; Mager v. Grima, 8 How. (U. S.) 493; United States v. Perkins, 163 U. S. 625). To the same effect may be cited innumerable authorities in the various State jurisdictions; among them see State v. Dalrymple, 70 Md. 294; Cross v. Trust Co., 131 N. Y. 330; Matter of Delano, 176 N. Y. 486; Matter of Bergdorf, 206 N. Y. 309. These authorities, so far as they apply, appear unanswerable, and sufficient. As regards Great Britain and its dependencies,

it is difficult to see how all the arguments to be found in Grotius and Puffendorf in favour of the inherent right of an owner of property to will it would avail against a statute abolishing the Wills Act and providing for a distribution between the State and the next-of-kin.

In dealing with the claim that the right of an owner of real or personal property to govern or influence its disposition or ownership after his decease is a vested right or one not directly dependent upon statute, it will be necessary to review briefly the history of this right under English and American law. The older writers upon English law inform us that as soon as property came to be vested in individuals by the right of occupancy, it was seen to be necessary for the peace of society that this occupancy should be continued not only in the present possessor but in those persons to whom he should think proper to transfer it; which introduced the doctrine and practice of alienations, gifts and contracts. To leave his property without ownership at his death, and subject to be seized by the first finder or taker, would necessarily create an infinite variety of strife and confusion. Hence the establishment of the testamentary right and of the devolution of land and the distribution of personalty upon intestacy, which are never spoken of as based upon any so-called rights in the living owner, but merely upon the necessity of preserving the peace and wellbeing of the community of which he ceases, upon his death, to be a member.

To go further back, it is well known that the notion of a will or testament is the creation of the jurisprudence of Rome, and that our barbarian Saxon ancestors were confessedly strangers to any such conception as that of a will. It was introduced among them by the ecclesiastical power: Among the northern nations," says Blackstone, "particularly among the Germans, testaments were not received into use. And this variety may serve to evince that the right of making wills and disposing of property after death is merely a creature of the civil state, which has permitted it in some countries and denied it in others, and even where it is permitted by law, it is subject to different formalities and restrictions in almost every nation under heaven." (Com. Bk. 2, 497).

In England and Scotland, during the twelfth century, the movable goods left by a dead man were, if wife and