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the grant of national rights, and it is difficult to suppose that it was the intention to give Austrian and Hungarian ships more favourable treatment than other foreign ships. The treaty contains, of course, no guarantee that other foreign ships would be accorded any particular treatment for any particular period. On this interpre- tation, therefore, the effect of Article 2 was merely to guarantee to Austrian and Hungarian ships such rights in the colonial coasting trade as might be granted to other foreign ships for the period during which such rights were in force.
6. This interpretation of the Article in question appears to be borne out by the history of the procedure in Canada. In 1868 the coasting trade of the recently formed Dominion of Canada-then including Ontario, Quebec, Nova Scotia, and New Brunswick-had not been opened to foreign ships, as section 163 of "The Customs Consolidation Act, 1853," was still in force, and by that section it was provided that no goods or passengers might be carried from one port of any British possession in America to another port of the same possession except in British ships. The provisions of this Act were dealt with by "The Merchant Shipping (Colonial) Act, 1869," which repealed section. 163 as from the date, in the case of each British possession, at which either an Act or Ordinance with respect to the coasting trade made within two years after the commencement of the Act of 1869 in such British possession came into operation, or, if there were no such Act or Ordinance, at which the said two years expired. The Act of 1869 was to be proclaimed in every British possession by the Governor as soon as might be after he received notice of the Act, and was to come into operation on the day of proclamation. The Act contained, in section 7, provision that in the construction of "The Merchant Shipping Act, 1854," and of the Acts amending that Act, Canada should be deemed to be one British possession. The term
Canada is presumably applied only to the Dominion of Canada as then existing, as Canada was not at that time a collective term for British North America.
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7. In virtue of the authority given by the Imperial Act of 1889, the Parliament of Canada, by cap. 14, 33 Vict., reciting the authority of that statute, provided that no goods or passengers could be carried coastwise in Canada except in British ships, but it was also provided that the Governor in Council might declare that the terms of the Act should not apply to the ships or vessels of any foreign country in which British ships were admitted to the coasting trade of the country, and, in addition, an express saving was made of any treaty rights made before the passing of the Act of 1869. In virtue of the authority contained in this Act, an Order in Council was enacted on the 1st June, 1876, by which the ships of the Austro-Hungarian Empire were admitted to the coasting trade on the same conditions as Canadian vessels. Similar Orders in Council were made with regard to the vessels of Italy (13th October, 1873), the vessels of Germany (14th May, 1874), the vessels of the Netherlands (5th November, 1874), the vessels of Sweden and Norway (5th November, 1874), the vessels of Denmark (25th January, 1877), the vessels of Belgium (13th September, 1879), and the vessels of the Argentine Republic (10th May, 1881).
8. By an Order in Council of the 13th January, 1908, these Orders in Council were repealed on, from, and after the 1st January, 1909, and the ships and vessels referred to thus became subject to the terms of section 955, of Chapter 113 of the Revised Statutes of Canada, 1906, which provided that goods or passengers may only be carried by water from one port of Canada to another in British ships.
9. By an Order in Council of the 17th December, 1908, the Order in Council of the 13th January, 1908, was revoked, and the ships of the country concerned were made subject to the provisions of sections 952-957 of the Canada Shipping Act, prohibiting foreign ships from engaging in the coasting trade of Canada, but with a proviso admitting steamships of not less than 1,500 gross tonnage of Italy, Germany, the Netherlands, Sweden and Norway, Austria-Hungary, Denmark, Belgium, the Argentine Republic, and Japan to the coasting trade between any port in the Province of Nova Scotia and any port in the Province of Quebec until the 31st December, 1911. This has been extended by Order in Council of the 8th December, 1911, to the 31st December, 1913.
10. Another Order in Council of the 31st December, 1908, allowed the steam- ships of foreign countries which were under charter to engage in the coasting trade in the maritime Provinces until the 1st July, 1909.
11. By an Order in Council of the 9th December, 1909, it was ordered that, despite anything contained in the Order in Council of the 17th December, 1908, vessels of Italy, Germany, the Netherlands, Sweden, Norway, Austria-Hungary, Denmark, Belgium, the Argentine Republic, and Japan should be admitted to the
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coasting trade of Canada for the carrying of goods between Atlantic Provinces and any port on the Pacific Coast of Canada, on the same conditions as Canadian vessels, until the 31st December, 1911. This has not been extended so far as appears.
12. It will be seen from these facts that the Canadian Parliament and Govern- ment have assumed that the throwing open of the coasting trade of the Dominion of Canada to Austrian and Hungarian ships which took place on the 1st June, 1876, has in no way bound Canada to maintain the opening of the trade despite the existence of the Treaty of 1868. No protest has been made by the Austro-Hungarian Government against the action taken by Canada in this matter, although Austrian and Hungarian ships are directly affected.
13. In the case of Australia, in 1868 the coasting trade of Victoria had been opened to foreign vessels by an Imperial Order in Council of the 24th June, 1856, made in virtue of the authority given by section 328 of the Act of 1853, which provides as follows:-
"If the Legislature or proper legislative authority of any of the British possessions abroad shall present an address to Her Majesty, praying Her Majesty to authorise or permit the conveyance of goods or passengers from one part of such possession to another part thereof in other than British ships, or if the Legislatures of any two or more possessions, which for the purposes of this Act Her Majesty in Council shall declare to be neighbouring possessions, shall present addresses or a joint address to Her Majesty, pray- ing Her Majesty to place the trade between them on the footing of a coasting trade, or of otherwise regulating the same, so far as relates to the vessels in which it is to be carried on, it shall thereupon be lawful for Her Majesty by Order in Council, so to authorise the conveyance of such goods or passengers, or so to regulate the trade between such neighbouring possessions, as the case may be, on such terms and under such conditions as to Her Majesty may seem good."
The text of the Order in Council will be found in Hertslet's "Treaties," vol. x, p. 432.
14. The coasting trade of the other Australian Colonies was not thrown open until the passing of the Act of 1869, under which the coasting trade automatically became open within two years after the commencement of the Act in the absence of any legislation reimposing restrictions on the engagement of foreign vessels in that trade.
15. It would appear, therefore, that on the analogy of the case of Canada there is no obligation on the Commonwealth Government to keep open the coasting trade of the Commonwealth so far as it concerns the trade between any two ports in any of the five States of New South Wales, Queensland, South Australia, Western Australia, and Tasmania. The Northern Territory of Australia was formerly part of the State of South Australia, and there seems no reason on treaty grounds on which the Government could be required to open the coasting trade of the territory to Austrian and Hungarian ships. In the case of Victoria a different question arises, namely, whether the express mention of that Colony (now State) in para-. graph 2 of Article 2 of the Treaty prevents steps being taken for the closing of the coasting trade, but, on the argument indicated above, it would seem that there is no sufficient ground for regarding the grant as being irrevocable, that is to say, while most-favoured-nation treatment must be assigned to Austrian and Hungarian ships it is not necessary that as regards the coasting trade national treatment should be accorded.
16. In the case of the Union of South Africa, the coasting trade of the Cape of Good Hope was opened by Order in Council made on the 7th December, 1855, in virtue of section 328 of the Imperial Act of 1853 (vide "Hertslet's Treaties," vol. x, p. 405). The trade was therefore open in 1868, but it would seem that after the repeal of section 328 of the Act of 1853 the coasting trade of the Cape was again closed in view of the express terms of section 163, which confined the coasting trade of the British possessions in Africa to British ships. It does not appear, however, that this was held at the time to be the case, for a Cape Act, No. 26 of 1872 (vide "Hertslet's Treaties," vol. xv, p. 722), threw open the coasting trade to foreign ships generally "subject to the provisions of any Act of the Imperial Parliament and so long as Her Majesty's Order in Council of the 7th December, 1855, shall remain unrevoked and in force." In the case of Natal the coasting trade was automatically opened under the operation of the Act of 1869, and on the line of reasoning which