PUBLIC RECORD OFFICE
Reference :-
BPEL C.O.885
ALLY WITHOUT PERMISSION OF THE BE REPRODUCED PHOTOGRAPHIC- COPYRIGHT PHOTOGRAPH-NOT TO
16 PUBLIC RECORD OFFICE, LONDON
the trade forbidden to American fishermen by Imperial legislation included the pur- chase of fish with cash. If it did, the foregoing remarks apply to that practice also; if it did not, then an Order in Council would from the first have been necessary if it had been deemed desirable to restrain American fishermen from purchasing fish with cash, as opposed to articles of trade. Contraband trade, it would seem, stands on a different footing. By Section 15 of the Imperial Customs Act 20-21 Vic.. Cap. 62 (now embodied in 39-40 Vic., Cap. 36, Section 151), it was provided that the Imperial Customs legislation "shall extend to and be of full force in the several British possessions abroad except where otherwise expressly provided for by the "said Acts, or limited by express reference to the United Kingdom or the Channel Islands, and except also as to any such possession as shall by local Act have provided, or may hereafter with the sanction and approbation of Her Majesty make entire provision for, the management and regulation of the Customs of any such possession, or make in like manner express provision in lieu of or in variation of any of the clauses of the said Act for the purposes of such possession." This would appear to have conferred on the Legislature of Newfoundland by implication power to make entire provision for Customs matters, and therefore to regulate the Customs treatment of American fishermen exercising their Treaty rights in the waters of the Colony. If so, the Colonial Legislature is entitled, without the authority of His Majesty in Council, to restrain American fishermen from engaging in con- traband trade, and also, inter alia, to require that they shall report at a Custom House on arriving in or departing from the Colony. This latter requirement, as you are aware, the United States Government contest the right of His Majesty under the Convention of 1818 to impose, and the further question arises whether if it is imposed by the Legislature of Newfoundland with the authority of Parlia- ment, it can, if necessary, be waived by an Order of His Majesty in Council in pursuance of the powers conferred by Section 1 of the Act 59 George III., Cap. 38.
23. As regards offences committed in the course of the common fishery against property or the person, it is presumed that as the Order in Council of the 19th June, 1819, did not in any respect suspend the operation of the common law, such offences may in any case be dealt with under that law in the competent Courts of the Colony.
24. The only Order in Council relating to Newfoundland purporting expressly to have been made under Section 1 of the Act 59 George III., Cap. 38, is that of the 19th June, 1819. That Order appears to raise two questions :-
(a) Section 1 of the Act 59 George III., Cap. 38, does not apparently give the force of law to the provisions of the Convention relating to the American fishing rights. It merely empowers His Majesty in Council in the manner stated to carry into effect the purposes of the Conven- tion in this regard. The Order in Council of the 19th June, 1819, however, directs the Governor to "conform himself to the said Treaty." The Governor is part of the Legislature. He legislates by and with the advice of the Legislative Council and the House of Assembly, and all Acts are expressed as "enacted by the Governor, the Legislative Council and House of Assembly, in Legislative Session convened." Such a direction to one constituent part of the Colonial Legislature must presumably be held to apply to the whole body, and the Colonial Legislature would thus seem to be required by an Order in Council, made under, and having the authority of an Imperial Act, to conform itself to the provisions of the Treaty, and in consequence to have no nower to legislate in contravention of such provisions. Any Colonial legislation in derogation of the American rights under the Convention (except possibly in Customs matters on which, as already pointed out. the Colonial Legislature appears to have received full power from the Imperial Parliament to legislate since the Order in Council was made) would accordingly appear to the extent of such derogation to be invalid.
to "
(b) The Order in Council directs the Governor to "conform himself" not only the said Treaty," but also "to such instructions as he shall from time to time receive thereon in conformity to the said Treaty, and to the above-recited Act, from one of His Majesty's Principal Secre- taries of State." Having regard to the terms of Section 1 of the Act 59 George III, Cap. 38, which expressly requires that instructions
7
necessary for carrying into effect the purposes of the Convention shall be conveyed by Order in Council, to the general disability of a delegate to re-delegate his delegated powers, and to the administrative objec tions to such a delegation urged in the enclosed memorandum, it would seem to be hardly possible to consider as of legal effect any instructions issued by the Secretary of State in regard to the Convention, but if such instructions are of legal effect on the one hand, it will not be difficult for the Newfoundland Government to produce despatches from the Secretary of State which may be interpreted as instructions to enforce all appropriate Colonial Laws on inhabitants of the United States exercising the Treaty right of fishery, and on the other it would seem to be practicable to direct by a mere despatch that any particular Colonial Law or any part of it should not be enforced against American fishermen.
25. If, however, a mere instruction from the Secretary of State is not sufficient to give effect to the purposes of the Convention, it remains to be considered how far the Crown can be said to have authorized by Order in Council the application of the laws of the Colony to American fishermen exercising their Treaty rights of fishery. Prior to 1867, Acts of the Colony which came into force on enactment, and which it was decided not to disallow, were allowed by Order in Council, with the exception of such Acts as while not calling for disallowance it was not thought desirable to allow formally. The Order in Council allowing such Acts merely declared the approval by the Sovereign, in earlier days of a report by the Board of Trade and Plantations, and in later days of a recommendation by the Secretary of State, that the measure should be left to its operation. Such an Order clearly left a Colonial Act to operate to the extent of its independent validity, and to that extent only. Acts containing suspending clauses were" specially confirmed, ratified, and finally enacted" by Order in Council. Up to 1867 no Acts were specially confirmed which appear in any way to have affected the conditions on which American fishermen were to exercise their rights of fishery under the Conven- : tion of 1818.
Since 1867, the place of the Order in Council which left an Act already in force to its operation has been taken by a despatch from the Secretary of State intimating merely that the Sovereign would not be advised to exercise the power of disallów- ance with respect to it. The practice of specially confirming by Order in Council Newfoundland Acts containing suspending clauses has to some extent survived, and in certain cases Orders in Council have been made declaring His Majesty's assent to Acts from which the Governor either withheld or should properly have withheld his assent. With the exception of the Bait Act of 1887 no Order in Council has been associated since 1867 with any Colonial Act in any way affecting the exercise of the American right of fishing. The Bait Act of 1887 was in the circumstances explained in the enclosed memorandum "specially confirmed, ratified, and finally enacted" by an Order of Her late Majesty in Council, dated the 12th July, 1887. It may be contended, in spite of the circumstances in which that Order was issued. that it was a regulation or direction within the meaning of Section 1 of the Act of 1819. It concluded with the words "whereof the Governor, Lieutenant-Governor. or Commander-in-Chief for the time being of Her Majesty's Colony of Newfoundland, and all other persons whom it may concern are to take notice and
govern themselves accordingly." If the Order in Council of the 12th July, 1887, was such a regulation or direction, then the Colonial Government would presumably be entitled to enforce the Bait Act of 1887, notwithstanding that it has since been amended and repealed. but against such a contention the following considerations may be urged:—
(i) The Act of 1887 saved Treaty rights, and, therefore, left open the question of the extent to which it affected foreigners exercising Treaty rights. whereas the essence of an Order in Council under Section 1 of the Act of 1819 would appear to be a precise determination of such rights. (ii) The penalties imposed by the Act are in excess of or at variance with those provided by Section 4 of the Act of 1819 for breaches of regula- tions and directions made or given for the purposes of the Act. (iii) The Act of 1887 was amended in 1888 and repealed in 1889, and was treated both by the Colony and by the Imperial Government as if of independent validity.
26. The acceptance of the view suggested above as to the limitations of the