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The Governor-General took the same view, and in writing to the Colonial Secretary, December 12, 1891, referred to the use of the red ensign with the Canadian badge as follows:
It has been one of the objects of the Dominion as of Imperial policy to emphasize the fact that, by confederation, Canada became not a mere assemblage of provinces, but one United Dominion, and, though no actual order has ever been issued, the Dominion Government has encouraged, by precept and example, the use on all public buildings throughout the Provinces of the red ensign with the Canadian badge in the fly.
Of course it may be replied that no restriction exists with respect to flags which may be hoisted on shore, but I submit that the flag is one which has come to be considered as the recognized flag of the Dominion, both ashore and afloat, and on sentimental grounds I think there is much to be said for its retention, as it expresses at once the unity of the several Provinces of the Dominion and the identity of their flag with the colors hoisted by the ships of the mother-country.
Lord Stanley added that the enforcement of the Admiralty order "would be attended with an amount of unpopularity very disproportionate to the occasion, and at a moment when it is more than usually important to foster rather to check an independent spirit in the Dominion which, combined with loyal sentiments toward the mother-country, I look upon as the only possible barrier to the annexationist feeling which is so strongly pressed upon us by persons acting in the interests of the United States. 10
Thus urged, the Admiralty gave way, February 2, 1892, at the same time retaining its opinion that "there are not unimportant objections to interference with the simplicity and uniformity of national colors. Whatever is conceded to Canada will almost certainly be claimed by the other colonial governments."
The warrant issued by the Admiralty, February 2, 1892, is as follows:
We do therefore by virtue of the power and authority vested in us hereby warrant and authorize the red ensign of Her Majesty's fleet with the Canadian coat-of-arms in the fly, to be used on board vessels registered in the Dominions.
10 At the Dominion elections of 1891, the question of closer trade relations with the United States was the principal issue, the Liberals strongly advocating a policy of unrestricted reciprocity.
The Admiralty's warrant sufficiently established a Canadian flag on our mercantile marine, and as appears from the despatch above quoted, our government, without any special Imperial authority, adopted it as our flag ashore. It very appropriately symbolizes and expresses the Canadian constitutional position; for the union-jack, in the corner, indicates our political origin and present affiliation, while the Canadian coat-of-arms in the fly denotes the commencement of independent national life. Its equivocal character has its parallel and its explanation in the ambiguity of our political status. Were we, in fact as well as in theory, a part of the British Empire, we should of course fly the flag of the Empire alone-the union-jack, the symbol of our subordination. And were we, in theory as well as in fact, an independent nation, we should fly no flag which did not clearly express our status and our nationality.
The Canadian flag has been adopted for use upon the recently provided Canadian war-ships, an agreement with the British Government declaring that on the jack-staff of our vessels there shall fly "the distinctive flag of the Dominion."
Summary. What has been said may be shortly summarized as follows: 1. As to all internal affairs Canada is absolutely free from control. She is really an independent nation.
2. With reference to those questions which have more or less an external aspect
(a) Canada has reduced, and may at any time terminate, the system of judicial appeals to the British Privy Council.
(b) Canada arranges her own fiscal tariffs, including the giving of preferences as she pleases.
(c) Canada controls the subject of copyright.
(d) The subject of naturalization is at the moment in dispute.
(e) With reference to merchant shipping, the authority of Canada over ships registered in Canada and ships engaged in her coasting trade, is admitted. Her authority over other ships touching her ports is under discussion.
(f) Canada arranges her tariff-treaties as she pleases. And she has with the United States an arrangement under which all matters of difference may be decided without reference to the British Government.
(g) Canada has asserted her liberty of action with reference to British wars. She has frequently, through her Prime Minister, declared that she will or will not take part in such wars as she may think proper. Both political parties in Canada have agreed that there can be no warobligation on the part of Canada in the absence of her participation in the diplomacies which involve war.
JOHN S. EWART.
THE NECESSITY FOR AN INTERNATIONAL CODE OF
The Final Act of the Second Hague Conference "recommends to the parties the assembling of a Third Peace Conference, which might be held within a period corresponding to that which has elapsed since the preceding conference," and recommends the appointment of a "preparatory committee” which (in the language of the Final Act), shall be "charged by the governments with the task of collecting the various proposals to be submitted to the conference, and of ascertaining what subjects are ripe for embodiment in an international regulation," and of preparing a program for the conference and a plan for its organization and procedure. This recommendation, in the absence of some catastrophe, such, for instance, as the outbreak of a great European war, means the meeting of the Third Hague Conference some time in 1915, or thereabouts, and already many of the great nations of the world, among them the United States, have appointed their members on the preparatory committee.
One of the most important duties, if not the most important duty, of this committee, as we have seen, is the duty of "ascertaining what subjects are ripe for embodiment in an international regulation; " in other words, what portion of international law is now ripe for codification in the form of a convention to be adopted at The Hague. Ever since the days of the adoption of the Code Napoleon and of the beginning of Bentham's agitation for similar legislation in Great Britain, there has been a lively controversy as to the merits of codification in the abstract and a still livelier controversy as to the merits of any particular project of codification which has been suggested. As Professor Beale has pointed out, the early codifiers appear to have had two main purposes: first,
1 A paper read at the Third Annual Conference of the American Society for the Judicial Settlement of International Disputes, held at Washington, D. C., December 20 and 21, 1912.
2 See "The Development of Jurisprudence during the past Century," by Professor Joseph H. Beale, an address delivered before the Congress on Arts and Sciences at
the unification, and, second, the simplification of the law. Codification, where adopted, appears to have succeeded in bringing about uniformity. For instance, in France and the other countries where it was adopted, the Code Napoleon was no respecter of persons or places. It made one law for all classes in all parts of the empire; and hence, undoubtedly, its popularity and permanency. As regards the other purpose, however, the simplification of the law, little has been accomplished. Bentham's idea was a law which should be so plain that not only he who runs may read, but he who reads may straightway understand without consulting his attorney; a law designed to so diminish litigation as to render unnecessary Jack Cade's somewhat harsher proposal, to hang all lawyers. This ideal has, of course, failed of realization. Professor Beale presents some interesting statistics to show that France and California, with codes, have more litigation than England and Massachusetts without them; and judge-made law (and, incidentally, lawyers), are just as prevalent in the former as in the latter jurisdictions. 2 In the unification of municipal law the codifiers have largely succeeded; in its simplification they have largely failed.
The real strength of the argument for the codification of international law in general appears to rest largely on the proposition that it is precisely unification that the law of nations needs. Just as it was desirable to harmonize and unify the laws of the Communes of France one hunSt. Louis, Sept. 20, 1904, in the Division of Jurisprudence: reprinted in 18 Harvard Law Review, p. 271 at pp. 276–279.
3 Senator Root, in his address on "The Function of Private Codification in International Law," delivered at the fifth annual meeting of the American Society of International Law, observed: "To codify municipal law is to state in systematic form the results of the law-making process already carried on by a nation through its established institutional forms. To codify international law is primarily to set in motion and promote the law-making process itself in the community of nations in which the institutional forms appropriate for the carrying on of such a process have been so vague, indistinct, uncertain, and irregular that they could hardly be said to exist at all." [Vol. V, AMERICAN JOURNAL OF INTERNATIONAL LAW, 1911, p. 577 at p. 579.] It is submitted that the distinction here drawn is applicable rather to some of the later instances of the codification of municipal law such as the recent codification of some branches of the law in England, where, as Professor Beale points out, the purpose "appears to be merely an artistic one" rather than to such codes as the Code Napoleon and the modern European codes, which have unified the laws of countries heretofore hampered by a medley of inconsistent local customs and laws.