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signature to the Treaty is a fact greatly to be regretted. In view of the numerous and palpable acts of injustice, of which Canada was the victim, Sir John A. Macdonald (whose signature was not necessary to the settlement of the Alabama question, since the required majority existed without him) owed it to his country and to the past policy of his Government, not to protest merely, but to resign, as Judge Day did in the matter of the Provincial Arbitration. There is no evidence that he even protested at least protocol 36, the only official report of the proceedings of the Commission, makes no mention of it. But whether he did so or not, it is unreasonable to conclude that the Government of the Dominion, who, in protesting against the Treaty, have done all that the circumstances demanded, can be held responsible for the faux pas of the Premier acting in his capacity of British Commissioner, or should be deprived of their freedom of action in a matter of such importance. It is to be hoped, at all events, that if the Canadian Executive does not make the ratification of the Treaty a Ministerial question, they will leave it as an open question to the Parliament. It is but fair that the country should take the responsibility, as it must accept the consequences, of the rejection of the part of the Treaty which relates to the Fisheries and the Canals.

We may remark that public opinion has pronounced decisively against the Treaty through the press. Scarcely more than two or three journals have entreated in a hesitating way to await its justification by the English Government before Canada decide to reject it. But more: one Provincial Legislature (that of New Brunswick) happened to be sitting at the time when the Treaty was published. On the 17th of May, upon motion by the Attorney-General, the House of Assembly resolved unanimously,

"1. That the privileges accorded to subjects of Great Britain by the nineteenth and twenty-first articles of the Treaty are by no means an equivalent for the privileges accorded by the eighteenth article to the inhabitants of the United States. That the reciprocal privilege of fishing in certain American waters is barren and delusive, and that the mode of determining and accounting for excess in value of the privilege accorded by the Government of Great Britain over those accorded by the Government of the United States is erroneous in principle and impracticable in execution, and the considerations of advantage are too remote and uncertain.

"2. That in any Treaty relating to the free use of the Fisheries and to the Navigation of Rivers and Canals, Canada should, at the same

time, make provisions for the further regulation of commerce and navigation beyond those secured by the articles of the Treaty as above concluded, in such manner as to render the same reciprocally beneficial and satisfactory.

"3. Further resolved that in the opinion of this House the Parliament of Canada should, under existing circumstances, adhere to and carry out the policy of protection of the fishery rights of the Dominion of Canada recently adopted, and should not give assent to the articles of said Treaty relating to the Fisheries."*

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On the 18th of May, Lieutenant-Governor Wilmot, in his speech, expressed himself as follows:

"The result of the deliberations of the Joint High Commission at Washington, so far as our Dominion and Provincial interests are involved, is calculated to excite alarm and dissatisfaction; but we cannot for a moment suppose that the Dominion Parliament will give its consent to those parts of the Treaty which dispose of our invaluable fishery rights for the veriest mockery of an equivalent, when we should have received therefor at least the free admission to United States markets of our ships, coal and lumber."†

Will this protest, coming from a Province so deeply interested in our Fisheries and so well acquainted with their value, be heeded? At all events, it is a matter of the deepest importance that the Dominion Legislature should approach the question in a spirit absolutely free from party politics, and that its vote should be the deliberate and faithful expression of the public opinion of Canada.

It will be for England, said the Hon. Mr. Langevin in his speech above referred to, to show the reasons why Canada should ratify the Treaty, and for Parliament to say whether they are sufficient. In our humble opinion, England should not interfere in the matter. The mischief she has caused us by mixing up our commercial disputes with the Alabama claims, is already great enough. She must not by orders to the Government of the Dominion make it irreparable; and we sincerely trust to see realized the hope expressed by the Earl of Derby in the House of Lords on the 12th of June, that the Canadians would be left perfectly free to express their own opinion upon that part of the Treaty, unbiassed by any hint that if they refused their ratification, they must not look for any further protection from us. I

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And what sufficient reasons can England show?

How can any conscientious mind acquainted with all the facts be persuaded that Canada should be made the scape-goat for the faults of the Empire? We are entreated to yield for the sake of peace. The peace policy, excellent though it be, must have its limits; it must not be allowed to become a policy of weakness. For then the peace which is bought at so high a price is not a benefit, but a calamity. We would say to the defenders of the Treaty on the other side of the Atlantic: In 1783, by the Treaty of Recognition of the United States, you abandoned the State of Illinois, and other vast and valuable territories, which had been ceded to Great Britain by France in 1763, as part of La Nouvelle France or Canada. In 1818 you gratuitously ceded the Fisheries on the unsettled shores of Newfoundland and Labrador, and abandoned your right to a Boundary Line to the Mississippi. In 1842 you gave up the territory of Maine, in spite of the fact, since demonstrated by the clearest evidence, that the American Government well knew they had not the shadow of a right to it. In 1846, by the Oregon Treaty, you abandoned the Columbia river and the Oregon territory.

To-day you surrender the Island of San Juan, the Fisheries, and the Navigation of our Rivers and Canals. And all that for the sake of peace. But do you not see that such a policy will eventu ally lead you to the total sacrifice of all the British Possessions in America, piece by piece, or at least that you will have so dimi nished and crippled their natural resources as to force them to break the Colonial tie and throw themselves into the arms of the fortunate Republic. These fears, be it observed, are not vain and chimerical; they are unfortunately too well founded, and the fact that the Treaty is viewed with favour by certain Canadian newspapers well known for their American proclivities, shows that such is its anticipated result.

But is it true that the concessions, which Canada is called upon to make, are necessary for the preservation of the friendly rela tions between the two great sister powers? Proof of the contrary is to be found in the Treaty itself. If peace or war depends on the surrender of our Fisheries and our Canals, whence comes it

* Even the Quebec Act, 1774, 14 Geo. 3, c. 83, sect. 1, of Consoli. dated Statutes of Canada, declares that at that time the Province of Quebec extended to the Province of Pennsylvania and the Ohio and the Missisippi Rivers.

that the Parliament of Canada (which can constitutionally exercise no control over the foreign policy of the British Crown) is invested with the decisive vote? It would then be in the Colony's power to drag the Mother Country into a conflict with the United States-the very thing to be avoided! And the United States consent to submit to such a contingency! The supposition is, therefore, not only unfounded but utterly absurd and ridiculous. No: it was not in the Americo-Canadians controversies that the seeds of serious dissensions lay concealed, but in England's unjus tifiable delay to settle the Alabama claims. If the British Government instead of standing on its honour and dignity and resorting for aid to every species of subterfuge, had from the first or at any time afterwards even during the deliberations of the Commissioners, frankly admitted that Great Britain was in the wrong and offered to make fair compensation for the depredations of the cruisers, the United States would certainly have consented to give us a trade equivalent for our Canals and Fisheries.

What is, finally, the reason why Canadian interests have been sacrificed by the Treaty? The leading journal of the United Kingdom has had the courage to publish it in the following guarded but significant words: "Little ingenuity" says the London Times of the 9th June, "would be required to represent this" (the surrender of the Fisheries) "as a sacrifice of small communities to the convenience of powerful States. There was most certainly no intention on the part of the Commissioners of this Country to make any portion of our Empire a scape-goat for the peace of the whole. But it was never disguised that something the Maritime Provinces hitherto have possessed had been bartered away by the Treaty."

Yet this paper boasts that the Treaty of Washington will be ratified by the Parliament of Canada ! !

Montreal, 12th July, 1871.

D. GIROUARD.

WRIT OF PROHIBITION.

A government which has made much advancement in civil jurisprudence, has observed the importance of having a variety of courts, and those of different grades. A portion of those controversies which arise among people, are of such character, that a court presided over by a person of limited legal knowledge, is ample to administer justice and law between the parties. They involve matters of inconsiderable importance in value, and are governed by rules of law plain and well understood. And the convenience of having the trial of them brought to the immediate neighbourhood of the parties, overbalances the evils which result from occasional mistakes of such unlettered and unlearned courts. Some controversies, however, involve matters of greater pecuniary importance, or raise questions of law upon which there is room for doubt, and which demand the consideration of minds learned in legal science, and accustomed to discriminating thought.

Intelligent legislation, therefore, divides judicial powers, giving to courts of inferior grades such judicial authority as is consonant with the capacity of the persons presiding in them, and withholding from them all those matters which demand greater ability; and creating, for the determination of important and difficult questions, courts representing a higher degree of talent and learning. It may well be expected that inferior courts will be as liable to be mistaken as to the extent of their jurisdiction as in other matters; and that higher courts will be better judges of not only their own powers but also of the judicial powers of inferior courts. It is therefore important that courts of higher grades should possess a supervisory power over courts of an inferior grade, and that they should possess the power to control and stop them when they are about to exceed the proper and legal limits of their authority. At common law higher courts were invested with this authority over inferior courts; and the process by which they prevented an inferior court from proceeding further in a matter not within its jurisdiction was denomi nated a writ of prohibition.

The remedy by this writ is not now as often resorted to as formerly, but still exists, although a distinguished attorney not

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