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can avoid the Longue Sault rapids and the unnavigahle parts of the Niagara river, and thus pass with case from St. Regis up the St. Lawrence to Lake Ontario, and thence through the Welland canal to Lake Erie.
The first objection to the claim to navigate the canals is, that the basis on which rests the American right to navigate the St. Lawrence, viz: that that river is a natural channel of communication between the great lakes and the sea, does not support a right to navigate artificial canals. It may be urged that they are accessional to the navigation of the river, that having been erected by the government with the intention of thereby overcoming the difficulties of navigation, they are dedicated to the public use of all entitled to exercise the right of navigating the St. Lawrence, that the Americans have the same rights of navigation of the St. Lawrence as British subjects and consequently they have the same rights in the Canadian canals. On the other hand it may be urged that the Canadian canals are built on Canadian soil, over which the Americans never possessed any rights, that being superstructures on land, they are owned by the proprietors of the land on which they are built, that having been erected by Canadian labour and capital, they follow the natural order of things and belong to those who built them, that the facts of their having been erected by the State and destined to public use do not give any right to foreign nations freely to navi gate them, as in such case the use contemplated was merely that by British subjects, that canals do not necessarily, any more than railroads, by the law of nature, form portions of the public property of the State within which they are built, and that consequently when they are private property no foreign state can possess even a right of servitude upon them, and that to canals generally, the principle of the Roman law which submitted its banks to the use of vessels navigating the river, never has been and cannot now be extended.
If the claim to navigate the canals of Canada be admitted, on the same principle the Erie and the Whitehall canals should also be thrown open to Canadian vessels.
But the impossibility, which may be urged so far as the Cedars, Cascades and Lachine Rapids are concerned, of the United States making canals on their own territory by which those rapids may be avoided, cannot be pleaded in favour of the olaim to the navigation of the Cornwall and Welland Canals. The south banks of the St. Lawrence and the Niagara belonging to the United States, canals might be built thereon, affording to American citizens the same facilities now presented by the Cornwall and Welland Canals to British subjects. If then canals are not in existence on those banks, the United States cannot turn their want of enterprise to advantage by claiming a portion of the benefits secured to British subjects by the enterprise and expenditure of the Canadian government, and insist upon a right to navigate the Welland and Cornwall Canals.
A great deal of ridicule was wasted upon the President's desire, as it was said, to navigate the Falls of Niagara, but it is perfectly clear that the claim advanced was merely to the navigation of the St. Lawrence between St. Regis and the sea.
The President endeavors to fortify his position by referring to the treaties regulating the navigation of the Rhine, Danube, and other rivers in Europe and America. Such treaties he pretends shews the judgment of jurists and statesmen on the subject; so far as regards the expediency of throwing open the rivers in question to navigation he is correct in his pretensions, but with regard to the rights of other nations to navigate a river or part of a river, exclusively the property of one State, he is wrong. Principles of International Law are not created by treaties. That Law in its entirety was in existence ere men had banded into tribes; it has ever been and shall ever be immutable. Man sees but dimly in this world and has discovered but few of its principles, whereof still fewer are universally admitted, but as well deny that the laws of gravitation had existence before Newton as affirm that God, ere nations were known, had not framed a perfect code of laws for their government.
But the treaties referred to have really no bearing on the pretensions advanced: 1st. because none of them apply to a river similar in its nature to the St. Lawrence; 2nd. because they all apply to rivers, but from the points where they first become navigable to the sea.
Having thus considered in its legal aspect the claim of the United States to the free navigation of the St. Lawrence, and the objections of the British and Canadian governments to its entertainment, it but remains to consider the manner in which the pretensions of the parties may be reconciled and the question set at rest.
It would seem to be clear that the United States admit that the right of navigation claimed is but an imperfect right, and that the governments of Great Britain and Canada partake of that opinion. The President in his Message expresses the willingness of the people of the United States to agree to any fair terms for the enjoyment of the right of navigation. Putting aside the question of reciprocity, which, if granted, would remove not only this question but that of the Fisheries from discussion, it would seem that other terms might be agreed upon satisfactory to the Canadian and American peoples.
In order to render the St. Lawrence available as a channel of communication to and from the Great Lakes for the commerce of the West, the canals constructed by the Canadians must be very much enlarged, entailing an expense of many millions of dollars. It would be unfair in the highest degree that Canada should be compelled to pay the expense of such enlargement, as the people of the United States would benefit thereby in far greater proportion than Canadians. Moreover, the original cost of the canals as they now exist was defrayed by Canada. The whole work, when completed, will be for the interest of the great States bordering on the lakes and Canada, and the cost of the whole should be divided between the United States and Canada in proportion to the populations respectively of the lake-bordering States and the Dominion.
Such an arrangement would be extremely beneficial to Canada. The enlargement of the canals and tho throwing open of the St. Lawrence to foreign trade would increase immensely tne commerce of the Dominion. The St. Lawrence would become the highway over which would pass the harvests of the West, to Europe and the sea board States, and the manufactures of the Bast to the great West.
As it is, Canada is not benefited by the exclusion of American vessels from the navigation of the St. Lawrence. The refusal to allow such passage is, it must be admitted, unneighborly and very like that of the dog renowned in fable. If the United States are blind to the advantages of reciprocity, let Canada secure the benefits which must inevitably flow from the improvement and enlargement of the Dominion canals. If the United States are willing to contribute their fair share of the cost of construction there is no reason why Canada should not possess the finest and most important canals in the world. Thereby both countries would be benefited to an immense extent, and the troublesome St. Lawrence Question set at rest for ever.
William H. Kerr.
THE JOINT HIGH COMMISSION.
The sitting of this Commission, intrusted with the delicate task of settling the great conflicts of international law, which have so deeply agitated public opinion, not only in the British Empire and in the neighbouring Bepublie but throughout the civilized world, is an event important, indeed, but not surprising, in the history of our century. In this essentially commercial age, the desire, nay, the determination of nations is, to avoid war, and to have recourse to peaceful means of adjusting their disputes. At the hour when a war, fierce beyond any which the human race has ever witnessed, was ravaging with wildest fury one of the mightiest empires of the earth, the nineteenth century alone could produce the Conference of London and the Joint High Commission at Washington.
This Commission possesses a more than ordinary interest for the people of Canada. At the very moment of writing these lines, the question of our Fisheries may have received a solution by their partial surrender. It is therefore of the highest importance to Canadians to know what will be the legal effect of such a decision.
If we are to believe the Imperial Blue Books, Her Majesty has given to her Commissioners, or to any three of them, full power to decide, jointly with an equal number of the American Commissioners, and " to sign for us and in our name everything so "agreed upon aud concluded, and to do and transact all such "matters as may appertain to the finishing of the aforesaid work "in as ample manner and form and with equal force and efficacy "AS WE OURSELVES COULD BO IP PERSONALLY PRESENT: "engaging and promising upon our Royal icord, that whatever "things shall be transacted and concluded by Our said High "Commissioners, Procurators and Plenipotentiaries, shall he "agreed to, acknowledged and accepted by us in the fullest "manner, and that we will never suffer, either in whole or in "part, any person whatever to infringe the same, or act contrary "thereto, AS PAR AS IT LIES IN OUR POWER."
A contemporary, well informed in official circles, on publishing the text of the Commission, made the following remark: "It "has been understood that no decision arrived at even by a ma"jority would be binding until it had received the sanction of "Parliament. The Commission, however, makes the finding of "the Joint Commission absolutely final."
The text of the Commission does not justify such an inference. It only grants the powers belonging to the Crown; consequently the powers of the Commissioners are and must be confined to transacting "as We Ourselves could do if personally present;" and Her Majesty engages to ratify the same " as far as it lies in Our power."
The Crown has not the right to treat upon every matter which concerns the Empire. In general the Sovereign has sole right to make and ratify treaties; but there are exceptional cases, in which ratification by Parliament is indispensably necessary. The cession of any part of the Canadian fisheries within three miles of the shore, is one of these cases; for these fisheries constitute an integral part of British territory, and no part of that territory can be surrendered in time of peace without the consent of Parliament.
The principle that the fisheries within three miles of the coast belong to the riverain State, is one which is too well established to be seriously called in question; and if any of our readers entertain the slightest doubt upon the point, we refer him to the numerous authorities cited by our esteemed friend Mr. Kerr, in his article on the Fishery Question.*
The only question, then, to be disposed of is: Can the Crown in time of peace cede to a foreign State any portion of British territory without the sanction of Parliament? The negative is ably maintained by Forsyth in his Cases and Opinions on Constitutional Law, pp. 182-181 (ed. 1869); and we deem it sufficient to quote his learned observations in full, feeling assured that under the present circumstances they will be read with deep interest.
"Has the Crown the power by its prerogative to cede British "territory to a foreign power, except under a treaty of peace? "No doubt ministers who improperly advise such a cession may "be impeached, but impeachment is punishment, and cannot in"validate the grant. If it is part of the prerogative of the Crown "to cede territory by a simple grant, without any reference to
• Supra, pp. 38—63.