R
PUBLIC RECORD OFFICE
Reference :-
TILLC.O.885
ALLY WITHOUT PERMISSION OF THE BE REPRODUCED PHOTOGRAPHIC- COPYRIGHT PHOTOGRAPH-NOT TO
16 PUBLIC RECORD OFFICE, LONDON
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document the use by American fishermen of implements which they now refrained from using.
That the fourth concession had placed His Majesty's Government in a position of some difficulty. That the considerations which His Majesty's Government had before them in accepting the United States proposal on this head were best explained by a reference to the correspondence which took place with the Colonial Government last year, and which was marked in the accompanying print. That the concession involved no guarantee that any number of local fishermen ready to engage outside the three-mile limit would be forthcoming, nor any indemnity to any fishermen, who might fish for Americans in the waters of the Colony after such engagement, against any legal penalties to which they might be liable in respect of such fishing. That the object of His Majesty's Government was to secure that in circumstances legally of great complexity, and internationally of considerable difficulty, local fishermen engaged outside the three-mile limit should not be arrested on board American vessels or American vessels seized for having them on board. That your Lordship could not, however, but feel that the local fishermen who might have gone outside the three-mile limit to engage on American vessels (apparently some 300 in number), had reasonable ground for believing that they were acting under the autho rity of His Majesty's Government. That it was known that the United States Government held this opinion.
That since the modus vivendi was concluded, the Government of Newfoundland had issued a public notice, calling attention to Sections 1 and 9 of the Bait Act, and had served writs on board an American vessel on two local fishermen engaged outside the three-mile limit. That the men were convicted on the following charge:-
"That they did unlawfully, on the 12th day of November, 1906, put on board the schooner R. H. Hall,' of Gloucester, Massachusetts, United States of America, without a licence for that purpose, a quantity of bait fish, to wit, one barrel of herrings, contrary to the provisions of the Consolidated Statutes, Second Series, cap. 120" (ie., the Bait Act). That an appeal had been lodged against the convictions to the Supreme Court of the Colony.
That it might be mentioned here that the Bait Act required all persons engaged in hauling, taking, or catching bait fishes for exportation to be furnished with licences, but that the Colonial Government did not enforce this requirement on men fishing for vessels in possession of an export licence under the Act. That as a matter of fact after the notifications of Sections 1 and 9 of the Bait Act many fishermen fishing or intending to fish for British vessels, applied for licences to the Colonial Inspector of Fisheries, in the Bay of Islands, but that the Inspector had "no suitable licences to give them."
That the United States Government had not complained of the public notification of the provisions of the Bait Act, but had made certain representations to His Majesty's Government which were embodied in the despatch from Sir E. Grey to His Majesty's Ambassador at Washington, of which also a copy was enclosed. That the proceedings against the two men who had been convicted were facilitated by the American master acting on the advice of the United States Government agent in the Bay of Islands, on the understanding that they were strictly in the nature of a test case. That no further legal proceedings had yet been taken, and that the Colonial Government had offered, on the 23rd instant, that pending the hearing of the appeal in the Supreme Court, they would not proceed against any other men at the present time engaged in fishing for American ships, if His Majesty's Government would arrange with the United States Government that no more Newfoundland fishermen should be employed on board American ships arriving after that date for the prosecution of the herring fishery. That your Lordship was not at present able to say whether His Majesty's Government would endeavour to make such an arrangement with the United States Government, still less whether the United States Government would accept such an arrangement. That if further legal proceedings were taken, the United States Government would regard them as a violation of the modus vivendi. That it, therefore, seemed desirable to make immediate provision for the contingency of the Colonial Government deciding to enter on further legal pro- ceedings. That it had been suggested to your Lordship that the most convenient way of doing this would be the issue of an Order by His Majesty in Council under Section 1 of the Act 59, Geo. III., c. 38, making it illegal for any person, without the written authority of the Senior Naval Officer, to serve any process of law on
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board an American fishing vessel. That an Order to this effect had accordingly been embodied in the draft forwarded.
That the suggested arrangement practically placed the supervision of the American fishery in the hands of the naval officers. That there was to some extent a precedent for such a course. That under the Newfoundland French Treaties Act, 1891, which was renewed annually between 1894 and 1904, and the Order in Council made thereunder, the execution of the old French treaties was entrusted to the naval officers on the Treaty Coast. That it was also provided in the regula- tions for the policing of the joint Anglo-French fishery under Article 2 of the Convention with France of the 8th April, 1904, which, though not definitely signed by the Governments of France and this country, had been agreed to by His Majesty's Government, with the concurrence of the Colonial Government, that the observance of these regulations should be placed under the exclusive supervision of vessels belonging to the national navies of the British and French Governments.
That he was to request that we would take his letter and its enclosures into our consideration and report :-
(1) Whether, in our opinion, the draft Order in Council could properly be sub- mitted to His Majesty in Council, having regard to the terms of Section 1 of the Act 59, Geo. III., c. 38, and of our report of the 20th October, 1906!
(2) Whether such an Order, if made, would be adequate for the purposes for which it was intended, particularly in the matter of securing that the shipment of Newfoundlanders by American fishermen outside the three-mile limit should not be made the basis of interference or be penalized?
(3) Whether the Order in Council could, if passed, be kept secret until its proclamation became necessary or whether it must be published forthwith, having regard to the provisions of Section 3 (1) of the Rules Publication Act, 1893?
We have taken the matter into our consideration and, in obedience to your Lordship's commands, have the honour to
Report-
(1) In our opinion the first two enacting articles of the draft Order which deal with the Sections 1 and 3 of the Act of 1905 can, as altered by us, be properly sub: mitted to His Majesty in Council. The third article, which prohibits the service of any process of law on any American boat used in fishing under the Convention, gives rise to Constitutional questions of some difficulty but we think that, under the circumstances of this case, a regulation of substantially the same effect as the third article, may properly be submitted to His Majesty in Council. At the same time we recognise that it is a somewhat extreme exercise of the discretionary power conferred on His Majesty in Council by the Act of 1819. The right to make regu- lations and issue instructions under the Act of 1819 is, of course, limited to such regulations and instructions as may be necessary for carrying into effect the pur- poses of the Convention. The Treaty gives to the inhabitants of the United States the right to fish within the specified area in common with British subjects, but it does not interfere with the right of the British Government or the Colonial Legis- lature to legislate as they may think fit over their own subjects. The Colonial Legislature, with the assent of the King, is therefore, at liberty either to prohibit the inhabitants of Newfoundland from fishing altogether or to prevent them from enlisting in foreign fishing vessels. But in exercising this right in the present case, the Colonial Legislature has, in our opinion, trespassed upon the sphere of American treaty rights, and has done so in a way which shows an intention (and, in any event, would have the effect) of impeding or destroying those rights. Thus the claim to seize and forfeit American vessels for recruiting Newfoundlanders who are willing to engage as members of the crew, tends or operates to defeat an inter- national obligation resting on the Imperial Government.
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Under these circumstances, the purposes of the Convention are imperilled and the duty of the Imperial Government is to protect them so far as it legally can. It is entitled to make such regulations as it may "deem necessary for that purpose. This is a wide discretion and may fairly be held to cover a case where it is necessary, at all events for temporary purposes, and, in order to avoid conflict or riot, to protect the parties to the Treaty from the encroachments of Colonial law.
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