PUBLIC
RECORD OFFICE
Reference :-
CO.
885
12 PUBLIC RECORD OFFICE, LONDON
ALLY WITHOUT PERMISSION OF THE BE REPRODUCED PHOTOGRAPHIC- COPYRIGHT PHOTOGRAPH—NOT TO
no limit fixed by law as to the number of Councillors whom the Sovereign is bound to consult on such an Act, and the number being in practice usually very small.
8. That in connection with that branch of the subject, Mr. Herbert was to refer us to a report of the then Law Officers of the Crown of the 8th of September 1874, in which the question arose whether the Queen's power of legislating for Gibraltar could, in 1873, be exercised by Order in Council only. At that time the reservation of legislative power to the Queen in the commission was expressed in different language from that above cited as in force in 1838. That in the commission in force in 1873 the reservation was of a power to legislate for the peace, order, and good government of Gibraltar " by Order in Council" (expressly mentioned); but notwithstanding that, the Law Officers held that the Queen could dissolve an ecclesiastical corporation, which was admitted to require legislation, otherwise than by Order in Council, although they held that the words relating to the Order in Council did modify the Queen's legislative power "in reference to legislation which may be directly connected with the peace, order, and good government of the city and garrison of Gibraltar.”
That, as before explained, the words "Order in Council commission in force in 1838.
}
"
did not occur in the
9. That Mr. Herbert was to request that we would inform your Lordship whether any, and if so what, legislation was, in our opinion, necessary in order to validate the enforcement of the Convention of Gibraltar.
In obedience to your Lordship's commands we have the honour to
Report
That we are of opinion that no legislation is necessary to validate the enforcement of the Convention of Gibraltar.
It appears to us that, if the Convention amounts to a legislative act, the action of the Governor, coupled with the sanction of the Crown, under the circumstances mentioned, renders it valid.
If the convention be regarded as one of a military character only, it equally requires no legislation to sanction it, but it may be open to question whether such an arrange- ment could be validly effected by a mere military convention.
The Right Hon. the Earl of Derby,
&c.
&c.
&c.
We have, &c., (Signed) HENRY JAMES.
FARRER HERSCHELL.
·
10,211.
No. 298.
(NEWFOUNDLAND.)
LAW OFFICERS to COLONIAL OFFICE.
MY LORD,
We were honoured with your Lordship's commands, signified in Sir Robert
Royal Courts of Justice, 14th June 1883. Herbert's letter of the 28th ultimo, stating that he was directed by your Lordship to transmit to us a copy of the Treaty contracted between Her Majesty and the United States of America at Washington on the 8th of May 1871, and a copy of a letter addressed by the United States Minister at this Court to Earl Granville stating that a formal notice would shortly be given to Her Majesty's Government, under Article XXXIII. of the Treaty, that the provisions of each and every of the Articles numbered XVIII. to XXV. inclusive, and of Article XXX. of the Treaty, would terminate and be of no force on the expiration of two years next after the time of giving such notice. That Sir R. Herbert was also to enclose a copy of a resolution passed by the Houses of Congress and approved by the President of the United States providing for the termination of those articles.
That by virtue of a separate Article (XXXII.) the provisions and stipulations of Articles XVIII. to XXV. inclusive were, on the passing of the necessary laws, extended (so far as they were applicable) to the colony of Newfoundland in the circumstances shown in a memorandum drawn up at the Foreign Office in November 1878 (see page 50 of Foreign Office confidential print, February 1879, herewith), those articles came into force in Newfoundland on the 1st of June 1874, and the question had been raised whether the notice to be given by the United States Govern- ment affected the position of the Colony under Article XXXII. That your Lordship was disposed to think that, although no express provision was contained in the Treaty for the termination of Article XXXII. itself, yet as the privileges granted to American fishermen under Article XVIII. were by the words of that Article granted for the term of years mentioned in Article XXXIII., and as Article XVIII, was extended in full to the Colony of Newfoundland, the privileges granted in Newfoundland would terminate with the term of years mentioned in Article XXXIII.
That Sir R. Herbert was to request that we would give our consideration to those papers, and that we would favour your Lordship with our opinion as to the date at which the Treaty will cease to be in force as regards Newfoundland.
In obedience to your Lordship's commands we have the honour to
Report
That in our opinion the Treaty will cease to be in force in Newfoundland on the expiration of the notice putting an end to the provisions of Articles 18 to 25 and Article 30.
It is open to argument that inasmuch as those Articles did not come into operation in Newfoundland until June 1874 the effect of Article 32 when read with Article 33 is to continue the provisions of Articles 18 to 25 in Newfoundland until June 1884, and for two years after that date. But we do not think this construction is the correct one. We think the term referred to in the earlier Articles, during which the rights conferred by them are to endure, is a single term in all cases and terminable by a single notice.
We have, &c.,
The Right Hon. the Earl of Derby,
&c.
&c.
&c.
(Signed)
HENRY JAMES. FARRER HERSCHELL.
▲ 12916.-295. 25.-12.81.