Page images
PDF
EPUB

the claims of the United States Government, and was not in any sense a compromise. Unfortunately the attitude assumed by the Canadian Commissioners precluded any calm discussion. They jumped to the conclusion that the rights of Canada had been sacrificed, and they were in no humour to listen to any explanations and in the circumstances, doubtless none were given. But looking back at the matter at this distance of time, and with a sincere desire to understand the merits of the case, there seems to be really no difficulty in concluding that so far from Lord Alverstone having in any way acted capriciously, or sacrificed the interests of Canada, he really gave a perfectly just and reasonable judgment. The only point in which his conclusion has ever been seriously attacked was his delimitation of the Portland Canal. This is an arm or inlet of the sea about 100 miles long; it is not bounded on its southeasterly side by a continuous strip of land, but for a considerable part of its course and particularly on its southeasterly side, it is bounded by a series of islands; between these islands there are outlets from the canal to the ocean. The United States’ counsel claimed that the canal should be treated as a river and that the widest of these outlets, which they claimed was the chief channel, should be selected as the course of the canal, as it was an international boundary. This, if acceded to, would have made the outlet north of two large islands, Wales and Pearse, which would thus have been ceded to be American territory. This was claimed as justified by what is called the doctrine of the Thalweg. This doctrine as applied to rivers forming international boundaries, carries the boundary through the main in preference to shallower channels of the stream. This doctrine is a mere convention, but it is one that commends itself to common sense. To have applied it, however, as the Americans contended for, would have been unreasonable, as it would practically have almost entirely altered the course. of what was known as “the Portland Canal.” But though this doctrine was manifestly inapplicable north of Wales and Pearse Islands, as Lord Alverstone held, it seemed perfectly reasonable to apply it to the exit south of those two islands. There the choice was between a narrow exit, comparatively shallow and only about a quarter of a mile wide, and the deeper channel called the Tongass passage. The choice of the latter seems really irresistible, when the only map pro

(suced purporting to shew the Portland Canal in any detail, exhibits it as having its exit to the ocean at the Tongass passage, the existence of the narrow exit being merely indicated by a dotted line.

If any lawyer were asked to adjudicate the claims of private persons in such circumstances, we think the fact that one of the litigants before any contention had arisen had mapped out his boundary line in a particular way, would be regarded as pretty strong evidence against his contention that that was not its true course. Here the Admiralty map may have had no legal binding force on Great Britain, but it certainly had a certain moral weight, and in the absence of any clear evidence to the contrary, a Judge could never be said to have disregarded his duty, who should say: “Your own officers have surveyed and delimited this boundary; what they have done I will assume in the absence of any overwhelming evidence to the contrary, is correct, and I settle your boundary as your own officers settled it.” And that is exactly what Lord Alverstone appears to have dome.

Those who are old enough to remember the arbitration respecting the British Columbia boundary, may recollect that the same principle was applied there, and the line carried through the deepest channel to the west instead of the east of S. Juan Island, and in the St. Lawrence and in the Great Lakes, the same principle has been applied in delimiting the international boundary. This being the case, where was there any injustice to Canada in applying such a generally recognized principle to this particular boundary?

A BAR ASSOCIATION.

THE ADVANTAGE IT would OFFER To THE LEGAL PROFESSION IN CANADA.

In the early part of the month of September of the present year, circumstances gave me an opportunity to have a conversation with Dr. Chas. Morse, registrar of the Exchequer Court of Canada. In the words of Lewis Carroll we “spoke about many things.” If you should wish me to generalize I will say this much : The topic of our discussion was of an extensive range, and the “peaks" thereof were civics, idealism and upon legal efficiency! The present remarks concern the last of this trilogy—legal efficiency!

We had this “talk" in the registrar's office which as you are aware is situated in Canada’s “famous palace of Justice ’’ at Ottawa. (I wonder what Sir Gilbert Parker would say if he heard about my architectural criticism of the place! For Canada's sake I hope the Government will let the people of this country have a real Palace of Justice.) So you could see that the inspiration to speak about legal matters was all that could be expected.

However, I will not tell you that we considered the problems, and the “double examination " system of graduating law students, as for example, prevails in the province of Quebec, and other allied matters; but I will tell you that Dr. Morse at the time suggested a new feature in the corporate life of the lawyers and barristers of Canada, which I am glad to see is being advocated also by the former professor of Civil Law at McGill University—the Hon. Charles Doherty.

This suggestion is that the legal fratermity of our Dominion,

from far-off Yukon to Prince Edward Island (and possibly Newfoundland) should seek ways and means looking towards the formation of a “Canadian Bar Association.” This is a matter which must have been the dream of many past statesmen and advocates in our country, and one marvels that it was not consummated. Still one should not criticize such a state of affairs too severely, for ten years ago the need of a “Canadian Bar Association * was not so imminent and apparent as it is to-day. In the last decade the agricultural, industrial and especially the commercial progress of the Dominion have been so perceptibly rapid that it has placed the attorney-at-law in a relatively more superior position in the scale of gradation of professional life of our land than perhaps any of the other learned vocations —with the possible exception of the civil engineer. I believe that this statement is fair and incontestable. I believe, also, that the members of the various provincial bar associations or law societies feel that “now,” since the matter is again broached, the occasion is ripe to test the opinion of the lawyers, to see whether we in Canada, cannot, with profit to the country at large, follow the lead of the American and European Bar Associations and formulate an equitable (onstitution to embrace all the Bar Associations of the Dominion into one parent federation with utmost autonomy to the constituent units thereof.

The good to be derived therefrom is known and conceded by those who have watched the work of other national bat associations. No critic is likely to arise to state that there is evil as a possible resultant lurking in the path of such a movement.

Of course you will note that I hold a “brief" in favour of the formation of a federated combination of the bar societies of the Dominion; and my friend, Dr. Morse, will surely bear me out by word and deed in this publicity to the cause now before us. But lest one might be too self-convinced let us advert to some of the objections that are within the bounds of possibility.

What will the public of Canada and the labour unions have to say about it? At first sight a “Mark Twain.” might answer: “well, it's none of their business!” But this is harsh, and a kindlier answer is requisite, for if there is anyone in this country who should be interested in the doings of the legal profession of Canada it is certainly the “man in the street.” Ostensibly the institution of lawyers and the Courts of law is to dole out justice to all, so that mankind may live in society equitably and happily, and as to such traditions the populace is mightily interested. So that the workingmen and their leaders should be informed from the outset that the “Canadian Bar Association” on principles of social liberty as well as civil liberty seeks incorporation for the good of the greatest number; and that the combination of the several law societies is not to be a tool in the hands of the capitalist against any other “imaginary” foe or class of the body politic of our country, but that the association is, ethically speaking, a utilitarian organization striving for the peace, progress and welfare of all inhabitants of the Dominion. But some staunch patriot who has been reading Christie, Kingsford, Lareau, Demontigny, Garneau or, if you like, Constable's History of Canada under the two regimes, will proffer the objection that some members of the FrenchCanadian section of the Quebec Bar Association will object to joining hands with the “Canadian Bar Association ” for fear that the rights safe-guarded by the Quebec Act of 1774 may be jeopardized, and because of the possible assimilation and engrafting of the English Law into the Code Law of French customary origin so dearly cherished by French-Canadian and Anglo-Canadian jurists in our province. In other words, the problem of “Je me souviens " artists.

To this objection the bas reliefs to be placed upon the monument to be erected to the codifier of our Quebec law— Sir Georges Etienne Cartier—is a sufficient reply. FrenchCanadian lawyers are always ready to listen to amendments to the laws, and the legislators are quite prepared to carry them out if they are equitable and more congenial to the spirit of our law, regardless whether the amendment comes from the law of California, Louisiana, the German Empire, England or France. But fortified as we are in Quebec in the citadel of the Contume de Paris and Institute of Justinian, and with the ethereal essence of the Roman Law hovering in the midst of our public forums, I have no fear of this objection. I know full well that the French-Canadian jurists would not in all seriousness raise such an objection to allying themselves with the rest of their confreres in the other provinces of the Dominion. Aside from the foregoing particularized criticism, Quebec advocates appreciate too highly the incalculable knowledge and experience that they can derive from being a member of a “Canadian Bar Association,” where the great branches of the law of the realm such as International Law, both public and private, systems of Legal Education, Commercial Law, the Criminal Law, and public and constitutional, and, if you will, Imperial Law will be studied and debated by the master minds of the legal societies of our herculean Dominion. In a final analysis, I can see no material harm for Quebec lawyers knowing more about the English Common Law and the geniuses that have interpreted it throughout the ages,

[ocr errors]
« PreviousContinue »