PUBLIC RECORD OFFICE
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would, therefore, not have the effect which was desired by the Canadian Government of putting an end altogether to the Bait Acts. That it was further apprehended that the disallowance of the Act of 1889 would revoke the instructions issued thereunder, supposing them to be now valid.
That the principal questions on which your Lordship desired to be favoured with our opinion were :-
(1.) Did the Colonial Act of 1889 give power to the Colonial Government to refuse licenses to Canadian and French fishermen, while granting such licenses to United States and Colonial fishermen ?
(2.) If it did give such power, might that powor be exercised otherwise than by proclamation of the Governor under section 4 of the said Act?
(3.) Further, if the Act of 1889 did not give such power of discriminating, could the Colonial Government in its executive capacity arbitrarily exclude any class of Her Majesty's subjects from fishing in the British waters of Newfoundland, while allowing other British subjects and foreigners to do so?
(4.) If the instructions referred to were valid, could they be repealed by the Governor without the consent of a majority of the Executive Council; or could the Governor, without such consent, exclude any district or part of the Colony or the coasts thereof from the operation of the said Act of 1889 ?
(5.) What would be the effect of now advising Her Majesty to disallow the Act of 1889?
That the action taken by the Colonial Government threatened to cause disorder among the fishermen now assembled on the south coasts of Newfoundland; and that Mr. Wingfield was to request that your Lordship might be favoured with our opinion on the above questions at our earliest convenience.
We have taken the matter into our consideration, and, in obedience to your Lordship's commands, have the honour to
Kepri
(1.) That in our opinion the Colonial Government has power to refuse to give licenses under the Act of 1889 to French fishermen, as foreigners, not being entitled to fish in the British territorial waters of Newfoundland, do not belong to the class of persons to whom the Act contemplates that licenses shall be granted. United States fishermen are not subject to exclusion on this ground, by reason of the special rights belonging to the United States and recognised in the treaties of 1783 and 1818 to enjoy, in common with British subjects, the fishery of these waters. In our opinion the Colonial Government is not empowered by the Act, or entitled apart from the Act, to exclude Canadian or other British fishermen from obtaining licenses.
(2.) and (3.) In our opinion the Act of 1889 gives by implication a power to the Colonial Government to make regulations as to the mode and terms of issuing licences, but not to discriminate between persons who at the time of its passing were entitled to fish in territorial waters.
(4.) The instructions not having been issued by proclamation of the Governor in Council could, even if in all respects valid, be withdrawn by the authority of the Governor; but it is not competent to the Governor, without the consent of the 'Executive Council, by a proclamation under section to exclude any district, or part
of the Colony, or the coasts thereof, from the operation of the Act.
(5) The disallowance of the Act of 1889 would revive the Acts of 1887 and 1888; but the power of limiting the operation of the Acts contained in section 17 of the Act of 1888 is substantially the same as that contained in section 4 of the Act of 1889, and must be exercised in the same mauner.
This opinion applies also to licenses for the purchase of bait for export, subject to the treaty rights of foreign nations, which are preserved by section 22 of the Act of 1889.
The Right Hon. Lord Knutsford.
We have, &c. (Signed)
RICHARD E. WEBSTER. EDWARD CLARKE.
20000.
MY LORD,
No. 213A. (NEWFOUNDLAND.)
LAW OFFICERS to FOREIGN OFFICE.
Royal Courts of Justice, June 16, 1891.. We were honoured with your Lordship's command signified in Sir Thomas Sanderson's letter of the 13th instant stating that he was directed by your Lordship to transmit to us the papers noted in the accompanying list relative to a question which had been raised by the French Ambassador at this Court as to the interpretation of Article II. of the Agreement of the 11th March 1891, between Great Britain and France, for referring to arbitration certain questions connected with the Newfoundland fisheries and as to the modus operandi by which the decisions of the Commission of Arbitration were to be enforced.
That the Agreement above mentioned, after reciting that the Governments of France and Great Britain respectively had resolved to submit the solution of certain difficulties which had arisen on a portion of the coasts of Newfoundland to a Commission of Arbitra- tion, contained a reciprocal engagement on behalf of the two Governments "in so far as "each may be concerned to execute the decisions of the Commission of Arbitration," (Article II.).
That it was averred by the French Ambassador, on behalf of his Government, that France had a right to look to Her Majesty's Government, and to them alone, for the satisfaction of her Treaty rights on the Newfoundland shore, and that Her Majesty's Government had no right to delegate that duty to any judicial Tribunal.
That he objected especially to a Colonial Tribunal, on account of the prejudice by which he assumed its proceedings and decisions would be affected, but that generally his objection extended on principie to all judicial Tribunals, whether Colonial or Imperial, on the ground that according to the modern practice such Tribunals must be entirely independent of the Executive Government, which could have no influence nor power over their decisions.
That he alleged that if the views of such a Tribunal should be at variance with, and if its decision should consequently derogate from, the Treaty rights of France, Her Majesty's Government could not set aside such decisions when they had been delivered, and would consequently be unable to fulfil their Treaty obligations.
That he argued, therefore, that in proposing to assign the execution of the decisions of the Arbitration Commission to either a Colonial or Imperial judiciary, Her Majesty's Government were surrendering their freedom of action and their power of carrying out their international obligations into the hands of a power over which they have no control; and that he stated that it was impossible for the Government of the French Republic to regard such an arrangement as a satisfactory discharge of the engagement entered into by Great Britain towards France under Article II. of the Arbitration Agreement above quoted.
That M. Waddington had pressed the above doctrine with great earnestness upon your Lordship, while the French Foreign Minister had made similar representations to Her Majesty's Ambassador at Paris (see Lord Lytton's No. 192, Confidential, of the 4th June), and that it appeared likely to prove a serious impediment to the further progress of the Arbitration.
That it appeared, however, to your Lordship, that the views put forward by the French Government had no warrant in international law, and were, moreover, inconsistent with the preliminary declaration of M. Waddington (with which your Lordship found your- self quite in accord), that France had a right to look to Her Majesty's Government, and to them alone, for the satisfaction of her Treaty rights on the Newfoundland shore.
That your Lordship conceived that the one and only right which France had acquired under the Arbitration Agreement was a substantial and honest execution and performance on the part of the Imperial Government of the awards and decisions of the Commission.
That to that engagement Great Britain was, in any circumstances, and under any Government, effectively bound in international obligation to France, and that the latter Power had the fullest right to require from her a due performance of her pledge.
o 70431-5. 19.-/99.
PUBLIC RECORD OFFICE
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