- The Empire Club of Canada Addresses (Toronto, Canada), 29 Mar 1917, p. 517-528
- Lash, Z.A., Speaker
- Media Type
- Item Type
- A submission by the speaker, a legal argument for his proposition with regard to Canada's status within the Empire and the part she can play in determining her foreign affairs. Great Britain as the nation of the Empire. Canada's lack of autonomy over her own affairs, having no status as a sovereign state to deal with foreign sovereign nations, except in minor matters. What the speaker means by foreign affairs: those matters which two independent autonomous foreign states discuss with one another in that capacity. The issues of peace and of war involved in foreign affairs. The indisputable fact that "If Great Britain is at war, Canada is at war." A more serious consequence, if Canada were not engaged in the conflict, in connection with trade with the enemy. The affairs over which Canada has complete control, under her constitution. A great many other matters which Canada can deal with outside of her territory. The one way in which Canada could take complete control of her foreign affairs and not be concerned in the foreign affairs of the rest of the Empire: by becoming a sovereign state herself. The necessity for Canada to declare her independence and cease to be a member of the Empire, should she wish to become a sovereign state. The result at the present time of such a course on the part of Canada. Asking the question, "What is Canada to do?" Would could be done in order that Canada may remain in the Empire, and at the same time take part in the control of her foreign affairs: make an agreement with Great Britain on that subject. Who the parties would be, if there were an agreement. Getting at the answer by a process of elimination. Remembering Confederation and the agreement under the passing of the British North America Act. To be effective, what must the agreement provide for? What jurisdiction is to be given to a central authority? What would come under its control, what would its powers be? Suggested answers to these and other questions regarding finance, basic principles, interference with Canada's self-governing powers, etc. Canada, bearing the burden in this war. Canada, claiming her rights and being prepared to pay for it.
- Date of Original
- 29 Mar 1917
- Language of Item
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- Full Text
- CANADA'S FOREIGN AFFAIRS
AN ADDRESS BY Z. A. LASH, ESQ., K.C., LL.D.
Before the Empire Club of Canada, Toronto
March 29, 1917
MR. PRESIDENT AND GENTLEMEN,--We have all heard the general statements made in different ways, but amounting to the same thing, and to nothing more than the same thing-that Canada cannot go on as she has been doing, and have no part in connection with those great matters which involve the issues of peace and war; that she can submit no longer to the people in one corner of the Empire conducting the Parliament and the Government which control those issues; she must have some part in leer own Foreign Policy and in the foreign affairs of the Empire. Now, we could say that over and over again in different ways and not get one foot farther. What I propose to do is to submit to you something in the nature of a dry, legal argument, which I hope will prove the proposition that I set out to prove. In fact, I am looking upon you more as a bench of judges than as a popular audience or members of this Club, and should I forget myself and refer to you as "Your Lordships," I hope you will pardon me.
Now, Great Britain is the nation of the Empire. By that I mean a nation having sovereign powers. The only representative nation which foreign nations having sovereign powers will recognize in matters in which nations as sovereign powers must act and decide. Canada being a part of the nation, and having full autonomy over her own affairs, has no status as a sovereign state to deal with foreign sovereign nations, except in minor matters to which I may refer.
The foreign affairs to which I intend to refer I will not attempt to define by any short sentence; in fact, it would be impossible to define what our foreign affairs are. What are domestic affairs today may, in ways we cannot possibly think of in advance, become foreign affairs tomorrow. What I mean, therefore, by foreign affairs are those matters which two independent autonomous foreign states discuss with one another in that capacity.
The issues of peace and of war are involved in foreign affairs. If there were no foreign affairs, no other nations in the world but one, everything concerning that nation would be a domestic affair. If we had no relations with foreign nations, we would have nothing to deal with but our domestic affairs, in which no issues of peace and of war would be involved; issues of riot, rebellion, might be involved, but no issues of peace and of war with foreign countries. Therefore, as Great Britain, the nation, represents all parts of the Empire with respect to those foreign issues, its foreign affairs cover the affairs of Great Britain, and the affairs of Canada, and all other parts of the Empire in so far as they are foreign affairs; and as peace and war are involved in foreign affairs of any part of the Empire, it follows that each part is interested in the foreign affairs of every other part, although none except the United Kingdom of Great Britain and Ireland have any share, as of right, in their control. It also follows--and this is a proposition of International Law arising from the very necessity of the case--that if war be declared by a foreign nation against the British Nation, or if the British nation declares war against a foreign nation, then a state of war would exist between the foreign nation and every part of the British nation. In other words, we have heard the sentence, " If Great Britain is at war, Canada is at war." Gentlemen, that is indisputable.
If, therefore, a state of war exists between a foreign nation and the British Empire arising from whatever cause it may, something in which Canada, has no concern except being brought into it as a member of the Empire Canada is at war, and is subject to all the consequences, in International Law, of being in a state of war with that foreign country. For instance, her ships on the sea would be liable to seizure; her sailors, if they were on warships, to be imprisoned; her citizens, if they were on a ship, liable to be interned. We could not complain. Her coasts would be liable to bombardment, and we could not complain. No wrong would be done, except that wrong for which there is no remedy in war--the non-observance of the rules of decency and humanity.
But a more serious consequence, if we were not engaged in the conflict, would be in connection with trade with the enemy. If Canada was in a state of war and Great Britain conducting the war, Great Britain must necessarily decide what every part of the Empire is to do with respect to the enemy; and one of the first things done is to prohibit trading with the enemy; and not only prohibiting trading in the way of buying and selling goods, but using the phrase "trading with the enemy" in its widest sense of any dealings with the enemy. Any dealing with the enemy would constitute criminal offence, and without entering into the conflict at all, every part of the Empire would be subject to the conditions arising from the state of war, including that very common condition with respect to trade relations with the enemy.
Now, Canada, under her constitution, has complete control over her own affairs, speaking generally, and it is not worth while referring to exceptions; and those affairs are confined precisely to those which happen within her borders; but she has complete control with reference to many things outside of her borders or territorial jurisdiction. For instance, she has control over exports and imports. She can stop imports from a foreign country or from another member of the Empire, or from Great Britain herself, and she can impose Customs duties as she thinks fit. She can prohibit the export of certain articles, of any articles to any countries she thinks fit. She can control the question of naturalization of aliens. She can prevent the people of a foreign country from landing in Canada, and impose such conditions as she thinks fit. She can do many acts which might involve Canada, and through Canada the Empire, in a state of war. Yet if she did something which called for a declaration of war against the Empire she would not have any right, any matter of right, to deal with the discussions with that foreign country, which take place only between two sovereign nations, Great Britain and the foreign country.
There are a great many other matters which Canada can deal with outside of her territory. For instance, she can have agents in foreign countries. She can make trade agreements with foreign countries. In fact, she can do most things that any foreign country is willing to do with her. A foreign country can say, "I don't recognize you, and I can't have any dealings with you, I can only deal through the nation and with the nation"; yet if a foreign country thinks fit to make an agreement with the Dominion of Canada in respect to matters which the British North America Act places under the powers of Canada, nobody could interfere unless those matters are something which only sovereign states can deal with.
Therefore, practically the only thing that Canada wants, so far as authority is concerned, beyond what she now has, is to control her foreign affairs, or to take part, in the control of the foreign affairs of the Empire, which include her foreign affairs. I know of only one way in which Canada could take complete control of her foreign affairs and not be concerned in the foreign affairs of the rest of the Empire, and that one way is by becoming a sovereign state herself. But to become a sovereign state she would have to declare her independence and cease to be a member of the Empire.
What would be the result at the present time of such a course on the part of Canada, merely to enable her to take part in or control her own foreign affairs? She certainly would not save any money. She would have to provide for the expenditure involved in the defence of herself, and the upholding of her rights against other sovereign states. It would mean the creation of a diplomatic service, with representatives in the various courts of the other nations of the world. And as she would lose the protection and benefit of the British army and navy by declaring her independence, she would either have to go unprepared to assert her rights against others, or create an army and a navy of her own. Therefore, her expenditure in that respect would be enormous. She would save no money by leaving the empire in order to get control of her foreign affairs.
If Canada, being unprepared, were at war with a country not unprepared or better prepared than she; and if pressure were exerted upon her, then, if that country were not the United States of America, what do you think would happen? What could happen, other than to seek protection from the United States in order not to be conquered? I leave you to judge what would happen. If Canada, being unprepared, were at war with the United States of America, she would either have to submit to such terms as were imposed upon her, if the United States were prepared for war, or be conquered. It is not a very desirable alternative for Canada in any event to leave the Empire.
Therefore, gentlemen, I will not belabour that any longer, but take up the question, what is Canada to do? What can be done in order that she may remain in the Empire, and at the same time take part in the control of her foreign affairs. I have already explained that Canada's foreign affairs are the foreign affairs of the Empire, and the foreign affairs of other parts of the Empire are the foreign affairs of Canada.
Now, I know of only one way in which Canada could take part in her foreign affairs and remain in the Empire, and that is by making an agreement with Great Britain on that subject. It is unthinkable that the great power of the Imperial Parliament would ever be exercised against Canada's will to change her status, to bring her into different relations with Great Britain and the Empire, to force upon her a position with respect to foreign affairs, and expenditure with respect to them; it is unthinkable that that could happen. Therefore nothing but an agreement, whether reduced to writing or not, is immaterial-whether in the shape of resolutions, as was done at the time of the Confederation of Canada, or reduced to an agreement which would be formulated in an act of the Imperial Parliament-does not matter. It would have to be done by an agreement, and the agreement would have to be ratified by the people of Canada, whether by a plebiscite or by an act of the Parliament of Canada, is a matter of detail. It would have to meet with the assent and approval of the people of Canada.
The next question is, if we must have an agreement, who would be the parties to it? I think we can get at the parties by a process of elimination. The British Empire, speaking generally, now consists of various parts-Great Britain and Ireland under one Parliament and Government; the Dominions, having autonomous powers, consisting of Newfoundland, New Zealand, Canada, Australia and South Africa. I put Newfoundland first, I was born there. But that is not the reason; the reason is that Newfoundland's present constitution is the oldest of any of the five; New Zealand comes next, then Canada, Australia and South Africa in order of seniority. In addition to that, there are what we will call the colonies. Canada was once thought to be a colony; it was a colony; even after Confederation she was spoken of as a colony until we substituted the word Dominion. Those colonies have more or less powers of self-government. Some of them are administered by an official appointed by the British Government, who makes laws and ordinances for the people, who does the whole thing under the authority of Great Britain. Others have legislatures and councils. Some have almost the dignity of parliaments. But none, except the five I have mentioned, have full and effective autonomous government. Then comes India, then Egypt, then there are naval stations scattered here and there on the great imperial routes. Then there are the protectorates, which are not yet incorporated into the Empire, but over which the Empire has a power of protection and prevents aggression by foreign countries.
Now let us proceed with the elimination. Take the protectorates first. Of course, it is out of the question to have protectorates represented in any kind of a tribunal which would deal with the foreign affairs of the nation, because protectorates have no forms of government of their own except the native tribal form. Naval stations are, of course, out of the question. Egypt has only been incorporated into the Empire since the war began, and it could hardly be expected that it would be asked or would claim the right to be represented in a tribunal which would take charge of the foreign affairs of the Empire. India, of course, must be represented; she has shown up so splendidly in this war; she has poured out her men and her money and shown such a splendid patriotism, and such a capacity for governing her own affairs in this respect, that she has won her right and is entitled to representation on whatever tribunal is created to deal with the foreign affairs of the nation. The colonies, which have not full powers of self-government, which are not considered able to govern themselves, could hardly be asked to send representatives to the tribunal created to govern our foreign affairs and those of the other parts of the Empire. Therefore, the first of this list to come in would be India; then the next would be the Dominions; and the next would be Great Britain. So the parties to this agreement would be Great Britain, the Dominions and India.
Now, gentlemen, you may remember that, at the time of Confederation, the only provinces which agreed to come in and join in the agreement resulting in the passing of the British North America Act were the three provinces of Canada, New Brunswick and Nova Scotia. Canada then consisting of Upper and Lower Canada joined by a Legislative Union. Prince Edward Island, although taking part in the debates on Confederation, did not come in. She came in afterwards because provision was made for her to come in.
British Columbia came in afterwards. Now, the same kind of thing might be done in reference to any discussion over an agreement between those seven bodies. I have mentioned either one, two or three or all except one might say, "I am not ready to make this agreement, I will stay where I am"; the others might say, "We will make the agreement"; it is not likely that any agreement would be come to which did not embrace Great Britain, the Dominions and India.
Assume, therefore, that we have the parties to the agreement, and assume that they come together to discuss it. The first question is, what must the agreement provide for, to be effective at all? It would not do to say in bald terms, that Canada and the other Dominions shall have the right to take part in the control and discussion of their foreign affairs. That would be too general and amount to nothing. I am not going into the details as to how this agreement is to be arranged, but the first thing it must provide for is the creation of some central link or authority in which each party to the agreement would have representation, and which authority would be clothed with the power to deal with the foreign affairs of the Empire, of all the parties to the agreement and of the rest of the Empire, their foreign affairs being the foreign affairs of the parties to the agreement. For the want of a better word, I will refer to that as the Central Authority.
Suppose, now, that an agreement is come to, to create the Central Authority-I cannot take up time to suggest ways for creating it-what jurisdiction is to be given to that authority? What is it to control? What are its powers to be? The Dominions would probably discuss only the creation of some authority to deal with that over which they have now no power. The only power they need place in that Central Authority is the control of foreign affairs of the kind that I have tried to explain; that includes the diplomatic service, representation of the Empire through this Central Authority, in the foreign courts.
We know that where diplomacy fails to produce an agreement with reference to a dispute between nations, the only thing left, if either one of the nations adheres to its position and refuses to give way, is either to apply force or lie down. Now, there are only two great forces at the command of any country-the army and the navy; therefore, foreign affairs, which involve diplomatic relations with other countries, involve the control and possession of an army and a navy; therefore, this Central Authority must be entrusted with authority over and control of an army and a navy. I can not take up time to speak of local armies and local navies, about which there is much to say. This authority over and control of an army and navy is the second jurisdiction which must be given to the Central Authority. Practically everything else is the result of these two jurisdictions.
Diplomatic service and an army and navy cost money, therefore the Central Authority must be enabled to provide for the expenditure which results from the exercise of the jurisdiction entrusted to her, and must be able to stand up side by side with the best nations in the world and feel that her credit is as good as the best. Therefore, in addition to providing the actual cash for yearly expenditure, she must have financial resources and credit which would enable her to raise money for capital expenditure upon ships and the army and navy in case of war, as no taxation or yearly revenue would be sufficient compared to the amount which would have to be raised upon credit. Therefore, the Central Authority must have a yearly revenue, and a plan by which her credit would be established, so that she might come to the markets of the world and borrow money for the capital expenditure required.
If Canada takes part in her foreign affairs in the way I have mentioned, or any other way, she must take part in the expenditure following it; she cannot get out of it. The only alternative is to declare her independence; and her expenditure under that alternative would be much more than her share of the expenditure of the Central Authority.
The plan of finance which would be required is probably the crux of the situation about which I have been speaking. If it were not for the conditions arising out of the difficult financial question, there would be no doubt that the parties would come to this agreement in a very short time, as the details practically settle themselves once you get a basis; but upon the plan of finance there is bound to be a great diversity of opinion. I have thought over this matter many times, and I have views upon it, but until the British nation and the various parts of it who take part in this problem know what their responsibilities are, and their resources to meet those responsibilities, it would be idle to discuss the assumption of further responsibilities, or any plan for meeting further responsibilities. But there are two basic principles which I think will apply, and without which I fear there will be no plan arrived at.
The first basic principle is this--there must be no superior authority created which would have the right to interfere with the incidence of taxation in Canada, or I presume in any other of the Dominions. If Canada or other taxing power prepares a budget which places taxes upon certain things and lets others go free, encourages one industry and possibly discourages another, it is all one plan, the various parts are linked together, upon some general principle, sound or unsound. Now, if any superior authority interferes and imposes taxes upon the same people or the same things or upon people or things not taxed under that particular budget, it might disturb the whole financial situation of the country. That cannot be allowed, and I have no doubt the people of Canada would not agree to anything which would have that result.
The other basic principle I have already touched upon. It seems inconsistent, but I do not think it is; I think it can be worked out in a spirit of generosity and compromise if those discussing the matter would only come together for the purpose of working it out. That principle is that the credit of that Central Authority must be maintained beyond doubt; it must be furnished with the yearly sums, and must be furnished with credit as well. That would all be covered in the agreement. The only thing I suggest is that the Central Authority would not be maintained without doubt unless something more existed than the agreement to maintain it; something would have to happen if that agreement were broken.
In carrying out any kind of a plan on the lines suggested, I think it would not be necessary to interfere with Canada's self-governing powers at all. If she made an agreement she would be making it in the exercise of her autonomy, and carrying out the powers she possessed; and she would not be giving up or interfering with or limiting her self-governing powers. The only party to the agreement which would require to give up something in such a plan would be Great Britain, which has now unlimited and uncontrolled discretion with reference to foreign affairs, controlled only by that sense of loyalty to her colonies, her dominions, and the other parts of her Empire; she can now control and decide the questions of peace and war. She would have to give up to the Central Authority that discretion and that control; but no other parties to the agreement would have to do so, certainly not Canada.
If some such plan as I have suggested were not adopted, what would be left for Canada to do? Would she remain as she is? Would she be satisfied to remain as she is, having nothing to say, except by grace of the British Government, with reference to her foreign affairs, or the foreign affairs of the Empire, which are hers? Would she receive, and continue to receive, the protection of the British navy and the British army without paying any part of the expense of it unless she thought fit? Gentlemen, such a position is unthinkable. I am glad to say that I feel that Canada has wiped out the disgrace of past years by her expenditure in this war, and by the part which she is taking in this war. Surely no Canadian patriot would ever dream for a moment of reverting to the old, position where she was taking the benefit and not bearing any part of the financial burden, and where she had no right to take part in that which concerns her. She claims the right, and she should be prepared to pay her share of the cost.
A vote of hearty thanks was moved by Hon. Featherstone Osler, seconded by Sir Edmund Walker, and carried by a rising vote amid cheers.