21985
PUBLIC RECORD OFFICE
Reference:
PC.O.885
ALLY WITHOUT PERMISSION OF THE BE REPRODUCED PHOTOGRAPHIC- COPYRIGHT PHOTOGRAPH—NOT TO
16 PUBLIC RECORD OFFICE, LONDON
No. 72.
(NEWFOUNDLAND.)
MR. BERTRAM COX to THE LORD CHANCELLOR.
[Questions connected with the modus vivendi with the United States: How to override the Newfoundland Government and enforce the provisions of the modus vivendi.
Dawning Street,
DEAR LORD CHANCELLOR,
June 21, 1907. LORD ELGIN and Sir EDWARD GREY wish me to ask for your opinion on certain matters connected with the Newfoundland Fishery question.
It has become necessary to renew in some form the modus vivendi of last year with the United States, and we have had the greatest difficulty in getting Sir Robert Bond, the Prime Minister, to agree to anything. The present position is this. The Americans last season employed-as has been their custom for years— Newfoundlanders to fish for them, and as a test case two of the men who so fished were prosecuted under the Bait Act of 1889 for "putting on board" bait fishes on an American vessel. The Magistrate convicted them, and the Supreme Court confirmed the conviction. It is possible that the case may be taken to the Privy Council. Fortified by this decision it is probable that next season the Newfound- land Government will prosecute largely Newfoundlanders who engage to fish from American vessels, and even the masters of those vessels. In this case the American fishing will be seriously interfered with, and two things may happen-(1) the United States Government may complain that the Treaty of 1818 gives them a right to non-disturbance of their fishery, and the service of process and removal of their fishermen disturbs it; and (2) the United States Government may say: As we Americans are not sufficiently skilled to use the gill nets employed by Newfound- landers and Newfoundlanders are not permitted to fish for us, we must use imple- ments which we understand, and we shall use purse seines. Purse seines are prohibited by the Newfoundland fishery regulations, and Sir Robert Bond alleges that they are destructive of the fishery and cannot be permitted.
In arranging a modus vivendi Sir E. Grey thinks that it will be necessary to concede to America one of these alternatives, either the right to have their fishery undisturbed by the service of process on their fishermen, or the use of purse seines. We have endeavoured to get Sir R. Bond to agree to postponing prosecutions until the end of the fishery season to avoid troubling the Americans, but without success.
The proposal is to override the Newfoundland Government, and enforce the provisions of the modus vivendi which may be arrived at, and the question is by what
means.
I enclose a report by the Law Officers of November 30th, 1906.* You will see that they advised us that under the Imperial Act of 1819, passed the year after the Treaty under which the Americans fish, that we could, by Order in Council, limit the service of process so as to avoid disturbance of the American fishery. We are consulting them again in a referencet of which I enclose a copy as to whether by Order in Council we could render the use of purse seines by Americans permissible notwithstanding the fact that they are prohibited by the Colonial Fishery Regula- tions under the authority of a Colonial Statute. I enclose copies of all the docu- ments material to a decision.
It must be remembered that Newfoundland received Responsible Government in 1832 by an exercise of the Royal Prerogative, ie., by Letters Patent. In granting it the Crown could not override the Act of Parliament of 1819, and the grant must have been made subject to existing Acts of Parliament binding the Colony, of which this Act was one. Consequently, no question can, I submit, arise if the powers of the Act of 1819 are used as to the overriding of the laws of a responsibly-governed Colony. But if necessary I understand that Lord Elgin and Sir E. Grey are prepared to introduce Imperial legislation to confer on His Majesty's Government the necessary powers. The risk of war with the United States cannot be run for so small and paltry a cause.
• No. 53A.
23 W 07 707 D & S & 20049
† See No. 75.