257 



such convention does not contain any words negativing the right to 

 navigate the passage of the Gut of Canso, and therefore it may be 

 conceded that such right of navigation is not taken away by that con- 

 vention ; but we have attentively considered the course of navigation 

 to the gulf by Cape Breton, and likewise the capacity and situation of 

 the passage of Canso, and of the British dominions on either side, and 

 we are of opinion that, independently of treaty, no foreign country has 

 the right to use or navigate the passage of Canso, and attending to the 

 liberty of fishery to be enjoyed by American citizens. We are also of 

 opinion that the convention did not, either expressly or by necessary 

 implication, concede any such right of using or navigating the passage 

 in question.' 



" The opinion of the British government, resting upon that of the 

 law officers of the crown, is, therefore, clearly expressed to the head 

 of the government of this province, for his direction and guidance, and 

 that of the legislature. The case is decided after a full examination 

 of the arguments on both sides. Mr. Stevenson complains of the ex- 

 ercise of the right asserted by the government here to control the 

 'passage of Canso.' Lord Falkland submitted his views, as well as 

 those of the committee, in opposition to those of Mr. Stevenson; and 

 the decision is unequivocally against the American claim. It will be 

 observed that Mr. Stevenson rests his opposition to the right claimed 

 principally upon the fact that the island of Cape Breton was a distinct 

 colony at the time of the convention of 1818 ; and hence argues that 

 the province of Nova Scolia, not having then the sole right to the waters 

 of the Gut of Canso, could not now claim to exercise an unlimited 

 cozitrol. Admitting that such did not then exist, it is clear that if a 

 common right is enjoyed solely by two parties, their union would 

 give complete control; and it may be fairly contended that Nova 

 Scotia and Cape Breton, being now under one government, possess the 

 same powers united as they did before the union, as resjDects third 

 parties; and that the effect of the union only operates to prevent antag- 

 onistic action relativel}' between them. The law officers of the crown, 

 however, take higher ground, and insist, first, that no foreign power 

 has any such right as that contended for by Mr. Stevenson, unless con- 

 veyed by treaty ; and, secondly, that no such right is conferred by the 

 treaty of 1818 to American citizens. Having such high authority in 

 favor of the existing control of the navigation of the passage in question, 

 it might be considered as conclusively settled; but as this exclusive 

 right is contested on the part of the American government, the opinion 

 of the late Cliancellor Kent, an American jurist of the highest standing, 

 in favor of the exercise of that right, as given in a chapter of his cele- 

 brated Legal Commentaries upon the Law of Nations, is of peculiar 

 value and importance. That distinguished lawyer, in the work just 

 mentioned, treating at large upon this subject, says: 



" ' It is difficult to draw any precise or determinate conclusion amidst 

 the variety of opinions as to the distance to which a State may lawfully 

 extend its exclusive dominion over the sea adjoining its territories, and 

 beyond those portions of the sea which are embraced by harbors, 

 gulfs, ba3-s, and estuaries, and over which its jurisdiction unquestion- 

 ably extends. All that can be reasonably asserted is, that the dominion 

 17 



