23318.
PUBLIC RECORD OFFICE
[།LT ། །
C.O.885
Reference :-
No. 75.
(NEWFOUNDLAND.)
LAW OFFICERS TO COLONIAL OFFICE.
[Question whether the King has power to direct that No. 20 of the Fishery Rules for 1907 so far as it relates to purse seines should not apply to American fishermen.]
Royal Courts of Justice,
29th June, 1907. MY LORD,
WE were honoured by your Lordship's commands signified to us by Mr. Bertrani Cox, in his letter of the 20th instant, stating that, with reference to our letter of the 30th November* advising as to a Draft Order in Council which had been drawn up to give effect to the modus vivendi concluded with the United States of America on the Newfoundland fisheries question, he was directed by your Lordship to request that we would favour you with our advice on a further point which had arisen in connection with this question.
That, as we were aware, it was not considered necessary to issue the proposed Order in Council last year, but that this year it would probably be necessary to renew the modus vivendi with the United States, and that, in order to secure such a renewal, it was possible that His Majesty's Government might have to consent to the use by the American fishermen of purse seines.
That in our opinion referred to we pointed out that the right conferred on His Majesty in Council to make regulations under Section 1 of the Act 59 Geo. III. c. 38 was confined to such regulations and instructions as might be necessary for carrying into effect the purposes of the Convention, and that it would appear to follow that the Colonial regulation No. 20 forbidding the use of purse seines in the waters of Newfoundland could only be suspended as far as it applied to American fishermen if it could be held that its suspension was necessary to carry out the Convention.
That your Lordship did not consider that the mere prohibition to use purse seines could be held to defeat the purposes of the Convention, but that it was necessary to take into consideration the fact that the Newfoundland Government had decided to put in force the provisions of the Bait Act against any Newfoundland fishermen aiding the Americans in their fishing. That the Supreme Court of Newfoundland had affirmed the conviction of the two fishermen to which reference was made in our report, and that, while a reference would be made to us shortly as to the correctness of this decision, 'your Lordship was not prepared to dispute the claim of the Newfoundland Government to pre- vent the inhabitants of Newfoundland from aiding the American fishermen. But that the aid of these fishermen was essential for the use of the gill net, and that it seemed to your Lordship that by insisting on prohibiting the use of purse seines, while also pro- hibiting the employment of Newfoundland fishermen on American vessels, the Colonial Government was in effect impeding or destroying the American treaty rights.
That your Lordship would accordingly be glad if we would take his letter and the papers referred to into our consideration and advise you whether His Majesty has power by Order in Council under Section 1 of the Act 59 Geo. III. c. 38 to direct that No. 20
of the Newfoundland Fishery Rules for 1907 so far as it related to purse seines should not apply to American fishermen exercising their treaty rights of fishery.
We have taken the matter into our consideration, and in obedience to your Lordship's commands have the honour to
Report-
That, in our opinion, His Majesty has power by Order in Council under Section 1 of
the Act of 59 Geo. III. c. 38 to direct that No. 20 of the Newfoundland Fishery Rules for 1907, so far as it relates to purse seines, shall not apply to inhabitants of the United States exercising their rights of fishing under the Convention of 1818 if, as appears to be the case, such an order is deemed necessary for carrying the Convention of 1818 into effect.
We have, &c.,
JOHN L. WALTON,
W. S. ROBSON.
The Right Honourable,
The Earl of Elgin, K.G., &c. &c. &c.
No. 55.
23 Wt 97 7,07 D & S &
29165
16 PUBLIC RECORD OFFICE, LONDON
ALLY WITHOUT PERMISSION OF THE BE REPRODUCED PHOTOGRAPHIC- COPYRIGHT PHOTOGRAPH-NOT TO
3-6-3