CO885-(11-13) — Page 626

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MY LORD,

No. 6.

(NEWFOUNDLAND.)

LAW OFFICERS to COLONIAL OFFICE.

Royal Courts of Justice, 7th March 1884. We are honoured with your Lordship's commands, signified in Sir Robert Herbert's letter of the 4th instant, stating that with reference to our report of the 3rd instant* on the subject of the proposed Agreement between the Governments of Great Britain and France to regulate the exercise of the French fishing rights on the coast of Newfoundland, he was directed by your Lordship to request our opinion on the following question-

That it was apprehended that great opposition would be made in the Colony of New- foundland to the passing of those measures which, according to our report, would be required to give effect to the proposed Agreement.

That it would therefore be very desirable, if possible, to arrive at some arrangement which would obviate the necessity of legislation. That it was proposed to limit the powers of the French cruizers employed to watch the French fisheries to warning off British fishing boats improperly interfering with the French fishermen in the exercise of their treaty rights, and, in case of persistence in such interference, to forcibly detaining them until the arrival of the British authorities. That in the case of Buron v. Denman (2 Exch., 167) it was held that the seizure of a foreign vessel by a British man-of-war, having been approved by Her Majesty's Government, had become an act of State, and that the private right of action to which the seizure might have given rise was merged in the international question between the two Governments. (See observations on that case in Feathers v. The Queen, 12 L.T. Rep. U.S., p. 113.)

That the question had arisen whether the commander of a French cruizer acting under instructions from Her Majesty's Government in the exercise of the powers above mentioned would be free from legal liability on account of such acts, on the principle which governed the case of Buron v. Denman.

That it was urgently requested that a reply might be given on the above point, with the least possible delay, for the same reason as that mentioned in Sir R. Herbert's letter of the 25th ultimo.

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

Report

That we doubt whether the decision in Buron v. Denman, which applied to the case of an officer in Her Majesty's service acting on her behalf, would be extended to such a case as that suggested. But in any view we think it would be beyond the constitutional powers of the sovereign to authorise the captain of a foreign vessel to exercise by force acts of authority within the territorial waters without parliamentary sanction.

We have, &c.,

(Signed)

The Right Hon. the Earl of Derby,

&c.

&c.

&c.

HENRY JAMES FARRER HERSCHELL. J. PARKER DEANE.

▲ 15917.-36. 85-12/85.

• No. 5.

PUBLIC RECORD OFFICE

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C.O.885

Reference :-

13 PUBLIC RECORD OFFICE, LONDON

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