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by the British and American people, it could not be allowed to have survived the treaty of 1783, by which the independence of the United States was acknowledged, and a partition of the British dominions in North America, was made between the new government and that of the mother country.*
“ To this argument it has been replied, on the part of the United States, that if the St. Lawrence was regarded as a strait connecting navigable seas, as it ought properly to be, there would be less controversy. The principle on which the right to navigate straits depends, is, that they are accessorial to those seas which they unite, and the right of navigating which is not exclusive, but common to all nations; the right to navigate the seas drawing after it that of passing the straits. The United States and Great Britain have between them the exclusive right of navigating the lakes. The St. Lawrence connects them with the ocean. The right to navigate both (the lakes and the ocean), includes that of passing from one to the other through the natural link. Was it then reasonable or just, that one of the two co-proprietors of the lakes should altogether exclude his associate from the use of a common bounty of nature, necessary to the full enjoyment of them? The distinction between the right of passage, claimed by one nation through the territories of another, on land, and that on navigable water, though not always clearly marked by the writers on public law, has a manifest existence in the nature of things. In the former case, the passage can hardly ever take place, especially if it be of numerous bodies, without some detriment or inconvenience to the state whose territory is traversed. But in the case of a passage on water, no such injury is sustained. The American government did not mean to contend for any principle, the benefit of which, in analogous circumstances, it would deny to Great Britain. If, therefore, in the further progress of discovery, a connexion should be developed between the river Mississippi and Upper Canada, similar to that which exists between the United States and the St. Lawrence, the American government would be
* British Paper on the Navigation of the St. Lawrence, Sessions 1827, 1828 ; No. 43, p. 41.
always ready to apply, in respect to the Mississippi, the same principles it contended for in respect to the St. Lawrence. But the case of rivers which rise and debouche altogether within the limits of the same nation, ought not to be confounded with those which, having their sources and navigable portions of their streams in states above, finally discharge themselves within the limits of other states below. In the former case, the question as to opening the navigation to other nations depended upon the same considerations which might influence the regulations of other commercial intercourse with foreign states, and was to be exclusively determined by the local sovereign. But, in respect to the latter, the free navigation of the river was a natural right in the upper inhabitants, of which they could not be entirely deprived by the arbitrary caprice of the lower state. Nor was the fact of subjecting the use of this right to treaty regulations, as was proposed at Vienna, to be done in respect to the navigation of the European rivers, sufficient to prove that the origin of the right was conventional, and not natural. It often happened to be highly convenient, if not sometimes indispensable, to avoid controversies, by prescribing certain rules for the enjoyment of a natural right. The law of nature, though sufficiently intelligible in its great outlines and general purposes, does not always reach every minute detail which is called for by the complicated wants and varieties of modern navigation and commerce. Hence, the right of navigating the ocean itself, in many instances, principally incident to a state of war, is subjected, by innumerable treaties, to various regulations. These regulations—the transactions at Vienna, and other analogous stipulations-should be regarded only as the spontaneous homage of man to the paramount Lawgiver of the universe, by delivering his great works from the artificial shackles and selfish contrivances to which they have been arbitrarily and unjustly subjected."*
* Mr. Secretary Clay's Letter to Mr. Gallatin, June 19, 1826. Sessions 1827, 1828 ; No.43, p. 18.
In the proceedings for the arrangement of this difficult subject, Ministers are assailed on three grounds : 1. That it is without reason, and contrary to principle, to make an abatement of 25 per cent. in substituting the rent-charge for the composition. 2. That the million ought not to be given to the clergy in lieu of arrears of tithe which they remit to occupiers. 3. That the Ministers abandon the principle which they before asserted, of appropriating to purposes of general education the surplus which will remain out of the revenues of the Church in Ireland, after supplying all the legitimate uses of that Church.
The right of tithe, or a right to the tenth of the gross annual produce of land, includes two distinct and different things: a property and a tax. The portion of it which would otherwise go to increase the rent, is property; that which goes in diminution of the profits of capital, or of the wages or reward of labour or skill, is a tax. Tithe, as far as it is property, is no hardship, even when it belongs to a church different from that of the owner, or the tenant of the land out of which it issues. But to be obliged to pay a portion of the profits of the capital which is your own, or which you have borrowed, or to surrender to a clergyman any portion of the wages you have earned by the sweat of your brow, instead of quieting with it the cries of your children for bread, or to appropriate a part of the reward of your talents to the minister of a religion which is at variance with your belief and your sentiments, is a galling hardship; and it is one which for a long series of years was inflicted upon the Catholic farmers and cottagers in Ireland. They could not help themselves as long as they had no voice in the Legislature, but it was impossible it should continue after they were fairly represented there : and all the abatements which have been made of Irish tithe may be considered as nothing more than an abandonment of that portion of it which fell on profits and wages. It is not asserted that this has been effected according to a nice arithmetical calculation. Such measures must always be carried somewhat loosely and roughly; but the main object is gained : tithe converted into a permanent rent-charge, varying only with the general price of corn, and after a large abatement has been made from the gross amount of the tithe, will have lost entirely the character of a tax, and will be just as much and as innocuously the property of the Church as an estate in fee-simple could be.
When it became apparent that the tax would be abolished, it became impossible that the clergy should collect it from those on whom it pressed heavily: but, during the period which must elapse before tithes could be put on a new footing, and into a form in which the clergy might enforce the payment of them, the subsistence of the clergy must be provided for : and this has been done by a gift of a million from the revenues of the United Kingdom.
No enactment or resolution has been made as to any surplus revenue, and it would have been the height of absurdity for the parliament to speak of a surplus in the present tense, at the moment when it was granting a sum of money to supply a present deficiency: but the right of the legislature to deal with any superfluity of church revenue, if it ever should be found to exist, is not abandoned. The
Ecclesiastical Commissioners for Ireland are already empowered to do a great deal towards setting the Church in order, and their powers may be extended. If it ever should appear from their reports that all the members of the Church of England who inhabit Ireland have, in proportion to their numbers, as ample and well appointed an establishment for their religion as the members of the same Church have in England, and that there is still something to spare from the ecclesiastical revenues, it will be time to inquire what ought to be done with it.