24 



JUDGE GEORGE H. SMITH, ON 



explaining or accounting for the beginning of the germ, any more 

 than Darwin accounted for the Ascidian. Our present day- 

 Pragmatical philosophers, William James, Davey and Schiller hold 

 that " truth " is what is good for you, and " the right " is what will 

 wash. But I take it that Judge Smith holds with Hume that there 

 is a " justice " to be administered — that there is a sense of right and 

 wrong in man (sometimes obscure, sometimes bright), and that the 

 sense of right is developed into our law, and the tendency to wrong 

 is regarded as outside the " jural liberty " of the individual. Or in 

 other words, that active sins against the moral sense are the acts 

 which we call criminal and which our law of Restraints seeks to 

 remedy. 



One writer made property the foundation of government. But 

 property must depend not merely, as the writer of the paper 

 suggests, on the obligation of others not to disturb or interfere with 

 my possession or enjoyment, but must rest upon some active 

 principle in the owner, and that active principle is the exercise of 

 Will in the act or "event" of appropriation, or in the case of land, 

 of occupancy. That will which makes property must not be 

 disturbed or interfered with. The fundamental ideas of law are, I 

 take it, Propertyy which includes self-ownership and family ownership, 

 Contract and Penalty. All of these involve the action of the will. 

 Will in possession, will in exchange, and will restricting to a 

 criminal his real moral nature by restraining his immoral tendencies 

 by the Sanctions of the law. And the right of the State to do so 

 rests not only in the nature of the man himself, but in what Hume 

 called " opinion " ; but that opinion is again the individual sense of 

 Right and Wrong in man. 



But we have some curious departures to-day from these principles 

 of jurisprudence. Property, private property seems to be regarded 

 by m5.ny as theft, and the collective will is to be substituted for the 

 individual will. Contract, private contract, is not to count. I am 

 not allowed to make a bargain with a tenant as to hares and rabbits 

 or with a servant as to injuries he may sustain while in my em- 

 ployment. Penalty still exists, I suppose, except when the Home 

 Office takes it upon itself to stand between the offender and the 

 law. 



Dr. Pinches said ; I rise to speak — quite as a layman — upon a 

 section of law which interests me — legal enactments of which I was 



