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PUBLIC RECORD OFFICE

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13 PUBLIC RECORD OFFICE, LONDON

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No. 213. (NEWFOUNDLAND.)

LAW OFFICERS to COLONIAL OFFICE.

Royal Courts of Justice,

MY LORD,

We were honoured with your Lordship's commands signified in Mr. Wingfield's

May 11, 1891. letter of the 4th instant, stating that he was directed by your Lordship to transmit, for our consideration, the accompanying Acts passed by the Legislature of Newfound- land in 1887, 1888, and 1889 respectively, to regulate the sale of bait fishes, and also a copy of certain instructions issued by the Colonial Secretary of Newfoundland on March 20th, 1891, and to request that your Lordship might be informed whether, in our opinion, the action taken by the Newfoundland Government, under the circum- stances which he was to describe, had been legal and constitutional.

That we should observe that Section III. of the Consolidating Act of 1889 required that no licenses should be issued under the preceding sections except under the authority of the Governor in Council and countersigned by the Colonial Secretary; and that under the following section (4) the Governor in Council might by proclama- tion suspend or limit the operation of the Act and the issue of licenses thereunder in the manner therein expressly set forth.

That a meeting of the Executive Council was held on the 18th of March, 1891, and that on the 19th the Governor issued the enclosed proclamation, limiting the quantity of bait to be taken or purchased by a licensed vessel.

That on the following day, March 20th, the accompanying instructions appeared :— That they purported to be issued by the Colonial Secretary and not by proclamation of the Governor in Council. That it might be taken that in fact those instructions were authorised by the Governor and Executive Council at the meeting of the 18th; and that it would be seen that they directed that no licenses should be granted except to Newfoundland and United States fishing vessels.

That the accompanying telegrams had passed on the subject, dated 18th, 20th, and 23rd of March, but that your Lordship did not feel satisfied as to the legality of the riew taken by the Colonial Government as to their power under the said Act or otherwise, to thus discriminate in the granting of licenses (a) between the subjects of two friendly Foreign Powers (France and the United States); (b) between British subjects residing in Newfoundland and Canadians or other British subjects residing elsewhere; or (c) between subjects of a Foreign Power and British subjects from outside the Colony.

That it had been represented to your Lordship that in the absence of any law specifically excluding any class of British subjects from the use of any British terri- torial waters for fishing or other purposes, such waters were equally free to all subjects of the Queen. That the Act in question (Section 1) prohibited the taking of bait fishes by unlicensed persons, and that the Government apparently considered that the Act entitled them, at their discretion, to grant or refuse a license to any person

or class of persons.

That if that discretion did exist the question arose whether it could properly be exercised as regards the fishermen of a Colony or foreign country, except by means of proclamation under section 4, limiting the operation of the Act in respect of such classes of fishermen.

That assuming that such a proclamation was not necessary, and that the instructions referred to had force and effect, your Lordship desired to know whether the Governor in Executive Council could, contrary to the advice of a majority of that Council, issue a proclamation either cancelling those instructions, or excluding from the operation of the Act of 1889, any district, or part of the Colony, or the coast thereof, where British subjects other than inhabitants of Newfoundland might desire to take bait fishes.

That Mr. Wingfield was to enclose a copy of the Royal Instructions to the Governor, and to direct our attention to Articles 7 and 8 of those instructions.

That Mr. Wingfield was further to observe that it was competent to Her Majesty's Government to advise the Queen to disallow the Act of 1889, and that the adoption of that course had been urged by the Canadian Government.

That your Lordship apprehended. however, that such disallowance would revive the operation of the Acts of 1887 and 1888, which were repealed by the Act of 1889, and

E G5453.-17. 25 --5,91.