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PUBLIC RECORD OFFICE

Reference :-

CC.O. 885

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11 PUBLIC RECORD OFFICE, LONDON

ALLY WITHOUT PERMISSION OF THE BE REPRODUCED PHOTOGRAPHIC- COPYRIGHT PHOTOGRAPH—NOT TO

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legal jurisdiction, or rather of carrying into execution, its inherent sovereign juris- "diction over the south and west coasts of Newfoundland • * That it may for that purpose confer a Commission of the Peace upon a Naval Officer or upon any other person whom it may think proper to select," and make arrangements "for arresting any subjects guilty of offending against the laws of the Colony, or of violating the "treaties respecting the fishery.' That a copy of that opinion was annexed for our information.

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9. That Lord Stanley therefore approved of the suggestion of Sir John Harvey, and since that time Her Majesty's officers have frequently received commissions as justices of the

peace.

10. That in 1849 Lord Grey, after consulting with the Foreign Office, authorised the appointment of a resident magistrate at St. George's Bay, which is on the French shore, and informed the Governor that Her Majesty's Government were of opinion "that the establishment of such a magistracy would not contravene any existing treaty between Great Britain and France relating to Newfoundland." That a copy of the Foreign Office letter was annexed for our information.

11. That Mr. Fobin was thereupon appointed resident magistrate, and continued to act until 1853, when the House of Assembly passed a resolution that the office should be abolished, as the inhabitants of St. George's Bay contributed no duties to the revenue of the Colony.

12. That no protest by the French Government against the appointment of this resident magistrate could be found, and that

13. In 1865 Mr. Cardwell informed the Governor that he was ready to consider the proposal for the appointment of a judicious person to act as magistrate, provided that it was clearly understood that his proceedings would be under the personal control of the Governor, and added that a matter which cannot but touch the execution of ** treaties cannot be treated as one of mere local administration."

14. That in December 1866, Lord Carnarvon informed Governor Musgrave that, pending the settlement of French and British rights on the coast, he was unable to authorise the appointment of a British magistrate on the so-called French shore.

15. That the Council and Assembly of Newfoundland now pray that the restriction may be removed, and that a magistrate may be appointed.

16. That before taking any steps in the matter Her Majesty's Government thought it right to intimate their intention to the French Government, and Lord Lyons stated that the French Foreign Minister represented himself as being unable to approve any such action; that a copy of the instructions to Lord Lyons and his reply were annexed for reference.

17. That it would appear that the argument of the French Government against such a measure was that it would be an encouragement to the creation of permanent establishments, whose existence they contend is inconsistent with the treaty, and is the result of simple toleration on their part.

18. That the question of what is included in the term "establissemens sédentaires " in the British Declaration of 1783 had been, as we are probably aware, much discussed, and law officers had differed in opinion upon the point, as was shown by the accompanying extracts from the report of Sir J. Harding, Sir Fitzroy Kelly, and Sir H. Cairns, of the 24th March 1857, and of Sir R. Palmer, Sir R. Collier, and Sir R. Phillimore of the 2nd April 1866.*

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19. That if the view taken by Sir J. Dodson is correct, the determination of the present question would appear to depend not so much upon the construction to be put upon the term establissemens sédentaires " as upon the broader question whether the sovereignty and land of Newfoundland being admittedly vested in the Crown, subject to certain rights of temporary user by the French of parts of the shore, Her Majesty has not the power, irrespective of treaty, to appoint magistrates with a view to maintain peace and order within her jurisdiction.

In conclusion, Mr. Herbert was pleased to say that he was to request that we would favour your Lordship with our opinion whether the appointment of a magistrate with jurisdiction over the so-called French shore would contravene any existing treaty between Great Britain and France relating to Newfoundland.

In obedience to your Lordship's commands we have the honour to-

Report

That in our opinion the appointment of magistrates to keep peace and order in that part of the west coast of Newfoundland, which is known as the French coast, will not contravene any existing treaty between Great Britain and France.

• No. 403.

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By the 13th Article of the Treaty of Utrecht the Island of Newfoundland belongs wholly to Britain.

This possession and right of sovereignty is by the same article limited by allowing to the subjects of France the right to catch fish and to dry them on land between certain defined points, and erect stages and huts necessary and usual for drying fish.

The same right, and no more, as to Newfoundland is confirmed by the Treaty of 1783.

By the Treaty of 1783 (renewed by the Treaty of Paris, 1814), the King of Great Britain is maintained in his right to the Island of Newfoundland, as assured to him by the 13th Article of the Treaty of Utrecht

The limits of the fishing assigned to French subjects were, however, altered by the 5th Article of the Treaty of 1783, but, within the new limits, the same rights, and no more or less, were assigned to French subjects as they enjoyed under the 13th Article of the Treaty of Utrecht.

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Two declarations accompanied this Treaty of 1783.

The English Declaration provided that "His Britannic Majesty would take the most positive measures for preventing his subjects from interrupting in any manner, by "their competition, the fishing of the French, during the temporary exercise of it, "which is granted to them upon the coasts of the Island of Newfoundland; and he "will for that purpose cause the fixed settlements which shall be formed there to be removed. His Britannic Majesty will give orders that the French fishermen be not incommoded in cutting the wood necessary for the repairs of their scaffolds, huts. and fishing vessels.

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That the 13th Article of the Treaty of Utrecht, and the method of carrying on the fishing which has at all times been acknowledged shall be the plan upon which the fishing shall be carried on there; it shall not be deviated from by either party. The French fishermen building only their scaffolds, confining themselves to the repair of their fishing vessels, and not wintering there; the subjects of His Britannic Majesty on their part not molesting in any manner the French fishermen during the fishing, nor injuring their scaffolds during their absence."

The French counter declaration declares the French Government was fully satisfied by the English Declaration.

We see nothing in these treaties or in the declarations which prevents, either in letter or in spirit, the right of the Crown to appoint magistrates to keep order within a part of its dominions, of which a limited use both in time and purpose is granted to French subjects.

On the contrary, we are of opinion that the Crown has under the treaties and decla- rations in respect to France, besides the cession of dominion, an implied, and necessary implied, right to appoint magistrates within the limits in question to keep peace and

order.

First. To restrain British subjects from "

incommoding" the French fishermen

whilst on the coast, and protecting their buildings during their absence, and punishing the offenders.

Secondly. To see that the French fishermen keep within the terms of the privileges

allowed them. Thirdly. To keep order between the subjects of each, and between the subjects of

the two countries.

Fourthly. Because if no magistrate be appointed the coast within the limits will, during the absence of the French fishermen and when France can have no right, be left without magisterial jurisdiction.

We are not able to see the force of M. de Remusat's objections to the appointment of magistrates founded upon the danger to French rights through the forming of permanent establishments by the English.

There is not in our opinion any connexion between the appointment of magistrates, which is not against treaty rights and the forming of a permanent establishment, which may be provided against by the treaty.

We have, &o.

The Right Hon. the Earl of Kimberley,

&c.

&c.

&c.

(Signed)

J. D. COLERIDGE. G. JESSEL.

J. PARKER DEANE.

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