R
40958
PUBLIC
RECORD OFFICE
Reference :-
C.O.885
No. 64A.
(NEWFOUNDLAND.)
COLONIAL OFFICE to LAW OFFICERS.
[Powers of His Majesty in Council and of the Legislature of Newfoundland in matters affecting United States Fishery Rights.]
GENTLEMEN,
Downing Street, November 10, 1906.
I AM directed by the Earl of Elgin to acknowledge the receipt of your letter of the 20th October,* giving your opinion on certain points involving the question of the powers of His Majesty in Council under Section 1 of the Act 59 George III., cap. 38.
2. The letter in which those points were submitted to you by Lord Elgin pro- ceeded, and your Report also proceeds, on the assumption that all relevant Laws and Regulations of Newfoundland apply to inhabitants of the United States of America exercising the liberty of taking, drying, and curing fish on the coasts of that Colony assured to them by the Convention of 1818, subject, however, to such regulations, instructions, &c., as His Majesty in Council might properly make or give in pursuance of the powers conferred by Section 1 of the Act 59 George III., cap. 38. Lordship now has some doubt as to whether this assumption is correct.
His
3. His Majesty's Government have now arranged a modus vivendi on the fisheries question with the United States Government, but their action has been impugned by the Government of Newfoundland as subversive of the constitutional rights of the Colony. It is therefore important that the respective positions of His Majesty's Government on the one hand, and of the Colonial Government on the other, under Section 1 of the Act 59 George III, cap. 38, should be clearly defined.
4. It has been thought that it might assist you to have some account of the manner in which the Act 59 George III., cap. 38 has been interpreted and has operated. A memorandum has accordingly been prepared in this Department and North is forwarded herewith. (Enclosure 1.)
American
5. The memorandum assumes that the powers conferred on His Majesty in No. 206. Council by Section 1 of the Act for the "carrying into effect the purposes of the said Convention with relation to the taking, drying, and curing of fish by inhabitants of the United States of America in common with British subjects," include powers not only to secure to American fishermen the full enjoyment of their Treaty rights, but also to regulate the exercise of those rights, if necessary, in any manner not incon- sistent with the provisions of the Convention. This view was taken with reference to the common fishery off the Magdalen Islands by the Governor of Lower Canada in 1827, apparently also in 1828 by the King's Advocate (who prepared a Bill on the subject of the North American fisheries in 1818, and probably therefore had some part in the drafting of the Act of 1819), and certainly by the Legislature of Nova Scotia in 1841.
6. It may be urged that the Act 28 George III., cap. 35, on which the Act 59 George III, cap. 38, seems largely to have been based, provided merely for the carrying out of His Majesty's obligations to the King of France, but whereas the object of the earlier Act was to secure the French fishery against British competition, the concern of the later Act was a common fishery. The Act of 1819 clearly enabled the King in Council to secure to the inhabitants of the United States a fair participa- tion in the common fishery and consequently with that object to make rules for the governance of British subjects fishing in common with them. But the object of such rules would have been nullified if His Majesty in Council had not been able to re- quire American fishermen to govern themselves by the same rules in their relation with British fishermen. In other words, even to secure to American fishermen the fair participation in the common fishery guaranteed by the Convention, it might have been necessary to draw up rules reciprocally binding on both nationalities; to pre- scribe, that is to say, not only the conduct of British fishermen towards the American but also the conduct of American fishermen towards the British. The powers con- ferred on His Majesty in Council by Section 1 of the Act of 1819, even on the
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