THE TREATY-MAKING POWER.
Address by Mr. J. M. Clark, M.A., LL.B., K.C., on March 23rd, 1905.
Mr. President and Gentlemen,-
I must acknowledge the honour done me by your Executive Committee in asking me to address the Club again. The Treaty-making power is a large and important matter of very special interest to Canada at the present stage of her national development but in the course of half an hour only a few features of the subject can be dealt with. By the way permit me to remark that the words " national " and " nation " which are used so frequently nowadays are exceedingly ambiguous expressions and that this ambiguity gives rise to a great deal of confusion of thought. The word " nation " means in a broad sense a race of people and primarily signifies an aggregation of persons of the same ethnic family and speaking the same language. On the other hand in International Law the word nation is used to denote a sovereign state.
In whatever sense it may be said that Canada is a nation it is certainly not true in either of the senses above referred to. If Canada were a nation in the sense in which the word is used in International Law then we would possess the full Treatymaking power. Indeed the possession of such a power is involved in the very idea of territorial sovereignty. In that sense Canada is certainly not a nation and it is, therefore, necessary to inquire where the Treaty-making power now lies. By the British North America Act (as our Canadian Constitution was officially entitled by the far-sighted Fathers of Confederation who contemplated that Canada should eventually comprise the whole of British North America including Newfoundland) the Executive Government and authority of and over Canada were declared to continue to be vested in the Crown. This was in accordance with the expressed desire of the Provinces of Canada, Nova Scotia and New Brunswick to be federally united into one Dominion under the Crown of the United Kingdom of Great Britain and Ireland with a constitution similar in principle to that of the United Kingdom.
By that constitution the Executive authority is vested in the Crown. Theoretically Blackstone was correct when he said: " It is also the King's prerogative to make treaties, leagues and alliances with foreign states and princes. For it is by the law of nations essential to the goodness of a league that it be made by the sovereign power and then it is binding upon the whole community and in England the sovereign power, quo ad hoc, is vested in the person of the King. Whatever contracts, therefore, he engages in no other power in the Kingdom can legally delay, resist or annul." Practically, however, this doctrine is subject to many limitations which there is not time to discuss exhaustively. In many cases in order that a treaty may be carried into effect and enforced, legislation by Parliament is necessary. Many examples, such as Extradition Treaties, will at once occur to your minds. As an instance of a treaty not being carried into effect owing to the absence of necessary legislation to enforce it, we may refer to the Treaty, or Convention (to which Great Britain and the United States became parties), for the protection of trade marks. The Treaty provided in effect for the recognition in Great Britain of the trade marks duly protected in the United States. The British Statute on the subject-The Patents, Designs, and Trade Marks Act-required as a condition of the registration of a trade mark that it must comply with the British definition. There was, therefore, a direct conflict between the Treaty and the Statute and when the matter came before the Courts it was held that the latter must govern.
The question was distinctly raised in the case arising out of the Treaty or agreement between France and Great Britain for a modus vivendi in regard to the Newfoundland Fisheries. Captain Walker, of H. M. S. Emerald, was instructed by the Lords Commissioner of the Admiralty to take the necessary steps to enforce this Treaty and in pursuance of his instructions took possession of the famous lobster factory which Mr. Baird had put up in Newfoundland in violation of the terms of the modus vivendi. Mr. Baird appealed to the Courts and the Supreme Court of Newfoundland held that it was no answer to his action for the Captain to say that he acted under the orders of the Crown in enforcing the Treaty with France and that the Courts could not inquire into such matters of State. This decision was affirmed by the judicial Committee of the Privy Council. (Walker v. Baird, 1892, A.C. 491.)
It followed that in order that this Treaty might be enforced so as to affect the private rights of subjects an Act of Parliament was necessary. At first the Newfoundland Legislature refused to pass such an Act and a Bill for the purpose of enforcing the Treaty was introduced into the British Parliament. Before, however, this Bill received its second reading in the British House of Commons the necessary legislation was undertaken in Newfoundland and though the Newfoundland Legislative Assembly limited the time for enforcing the modus vivendi to two years the Bill in the British Parliament was dropped. In view of the principle so illustrated a great many Treaties are subject to the implied condition that the necessary legislation be passed. In some cases there is an express stipulation that a proposed Treaty shall not take effect until adopted by Parliament.
For instance, when Heligoland was ceded in 1890 to Germany the cession was expressly made conditional on the approval of the British Parliament which was subsequently given by 53 & 54 Viet. ch. 32. Another instance of greater interest to us as Canadians was the Treaty of Washington, 1873, which, so far as it specially affected Canada, was expressly made subject to the approval of the Canadian Parliament as well as to the approval of the Imperial Parliament and the Congress of the United States. It may be interesting to compare the British Constitution which vests the Treaty-making power in the Crown with the constitution of the United States under which the President has power by and with the advice arid consent of the Senate to make treaties provided two-thirds of the Senators present concur. Such Treaties are by the United States Constitution declared to be the supreme law of the land and the judges in every State are declared to be bound thereby, anything in the constitution or laws of any State to the contrary notwithstanding.
While the British Constitution vests the Treaty-making power in the Crown as the delegate and representative of the people, yet it must be borne in mind that this power, like most of the other Royal prerogatives, must now be exercised by or on the advice of responsible Ministers of the Crown. The true way of putting the matter, therefore, is that the Treaty-making power really rests in the Imperial Government which is responsible only to the people of Great Britain and Ireland. While this is so Canada is, as a matter of fact, always consulted where the special interests of Canada are concerned and in this indirect way the voice of Canada is becoming more and more potent. The advance made in the last thirty years may be indicated by contrasting the composition' of the Commission which negotiated the Treaty of Washington with that of the Commission appointed a few years ago and still in existence to settle differences between Canada and the United States. Then Canada was represented by one of five Commissioners. In this case all the Commissioners except one, the late Lord Herschel, were Canadians.
Whatever may be said as to the attitude of the British Commissioners in the previous negotiations we know that in the case of the latter Commission the British Commissioner (if we may use this expression to indicate the special representative of the Imperial Government), exerted to the utmost his great force and ability to press the Canadian claims and urge the Canadian contentions. As another illustration of the increasing influence of Canada in these matters I may refer to the fact that the Bond-Blaine Treaty between Newfoundland and the United States was vetoed by the Imperial Government at the instance of Canada.
The denunciation of the German and Belgian Treaties affords even a more striking example. They prevented the establishment of a system of Preferential Trade within the British Empire and were terminated at the request of this country. Those Treaties were made without the consent of Canada and bound us if we gave a preference to Great Britain also to give a similar preference to Germany and Belgium whether we wished to do so or not. Such a Treaty would not at the present day be made binding on Canada without our consent. Indeed, in 1878, Canada obtained from the Imperial Government a pledge that in future no commercial treaty would be made binding on this country until Canada assented to it. But, it is said, why cannot Canada obtain the full power to make her own Treaties? To this I say that the Treaty-making power is one .of the most characteristic attributes of a Sovereign State. For us to claim full Treaty-making power is, therefore, necessarily to claim independence. I shall not attempt to discuss the question of Canadian Independence but may be permitted to say that it would simply be a step-in my judgment, a very short step-to annexation to the United States. Alexander Hamilton's advice to the people of the United States that they should think continentally would be speedily followed. Furthermore under the Monroe Doctrine, as now extended, the United States claim a hegemony over this continent. As Canada was part of the British Empire before the United States came into existence as a nation this Monroe Doctrine cannot now be applied to us. Should, however, Canada become independent we would at once become subject to the claim of over-lordship by the United States. This is a point which deserves more consideration than it has yet received from the advocates of Canadian Independence.
I must not be understood as saying that the present position of the Treaty-making power is a satisfactory one, for it is not. The problem is, of course, a difficult one, but it is one well worth solving. The British Empire which has been justly characterized as the greatest secular agency for good which the world knows, is well worth preserving, and its preservation obviously depends on the satisfactory solution of this problem. While the difficulties of the problem are formidable they are not insuperable. The British Constitution, whose development is so gloriously associated with the cause of liberty and justice, is capable of further evolution. On a careful consideration of this subject one cannot fail to perceive two distinct tendencies, apparently, though not in reality, diverse. One is in the direction of a local self-government which in my opinion does not tend to separation as was at one time feared, but on the contrary is an absolutely indispensable condition of Imperial Unity. Indeed we may properly describe local self-government as the veritable sheet-anchor of the British Empire.
The other tendency is towards the evolution of an Imperial organization to deal with purely Imperial affairs. This is also a necessary condition of the permanent solidarity of the British Empire. As a step in this development one may refer to the fact that a responsible member of the Canadian Cabinet is a member of the Imperial Defence Committee. As another and very important step we may refer to the system of Imperial Conferences which now may be regarded as a permanent feature of Imperial polity. There is not time to discuss what form this Imperial organization will take, but one thing is certain that to be permanent it must put Canadians on a footing of absolute equality with Englishmen, Irishmen and Scotchmen. We do not want to interfere in their local affairs and shall insist on managing ourselves our own local affairs. In the management of the common affairs of the Empire Canadians must have an equal voice. I hope Canadians will never cease to claim A part in the glory and pride and aim Of the Empire that girdles the world."
While we as Canadians rightly claim the full rights and privileges of British citizenship we must also face the corresponding and inevitable responsibilities and duties.