CO885-(13-15) — Page 225

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PUBLIC RECORD OFFICE

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C.O.885

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13 PUBLIC RECORD OFFICE, LONDON

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MY LORD,

No. 218. (NEWFOUNDLAND.)

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LAW OFFICERS to COLONIAL OFFICE.

Royal Courts of Justice, July 2, 1891. We were honoured with your Lordship's commands, signified in Mr. Bramston's letter of the 23rd ultimo, stating that he was directed by your Lordship to invite our consideration of the following matter.

That we were doubtless aware that it had been proposed that questions arising on the coast of Newfoundland in connexion with French Fishery Treaties should in future be heard and determined judicially, instead of being left, as hitherto, to be dealt with by Naval Officers acting under instructions from Her Majesty; and that discussions were in progress with the delegates as to provisions of an Act to be passed by the Newfoundland Legislature for establishing the necessary judicial machinery.

That in the course of those discussions a question had arisen as to whether the Territorial Waters Jurisdiction Act, 1878, affected the competency of the Colonial Legislature to deal with the subject, and, if so, to what extent.

That it had always been considered that the power to make laws for the peace, order, and good government of a Colony, which every Colonial Legislature possessed, included the power of legislating in respect of matters occurring within the territorial waters of the Colony; as, for instance, the enforcement of local laws relating to Customs or illicit trade, subject to the condition imposed by the Colonial Laws Validity Act, 1865, section 2, that any Colonial Law which was repugnant to any Act of Parliament extending to the Colony should, to the extent of such repugnancy, be void and inoperativo.

That it was therefore apprehended that it was competent to a Colony to pass a law declaring that any specific Act occurring on board a ship, whether British or foreign, within the Colonial territorial waters, was an offence against the law of the Colony, and punishable accordingly, provided that such law were not repugnant to any Act of Parliament extending to the Colony.

But that the Territorial Waters Jurisdiction Act, 1878, which specifically extended to all Colonies, declared that offences which, if committed within the body of a county in England, would be punishable on indictment according to the law of England for the time being in force, were, when committed on the open sea within the territorial waters of Her Majesty's dominions, offences within the jurisdiction of the Admiral, and might be punishable accordingly; that was to say, that they would in a Colony be dealt with by the Supreme Court under the Act 12 & 13 Vict. c. 96., and that the offenders, if convicted, would be punishable as provided in the second section of that Act.

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That Mr. Bramston was to enclose copy of a Memorandum on the subject drawn by Mr. Jenkyns, the Parliamentary Counsel, and to observe that, as no Bill could be introduced this Session, it was not desired at presont to trouble us to examine the draft Bill attached to the Memorandum, but only to ascertain our opinion as to the effect of the Territorial Waters Jurisdiction Act, 1878, upon the competency of the Newfoundland Legislature.

That Mr. Bramston was, however, to observe that the Memorandum did not specifi- cally touch one point to which he was to invite our attention. That in order to secure the performance of the French Treaties the Newfoundland Legislature would be asked to create a special Court to deal with any breach of those Treaties committed on shore, or in territorial waters. That it might be that an act, e.g., destroying nets below low- water mark, constituted an offence which would in England be punishable on indictment, and therefore triable by the Supreme Court in pursuance of the Territorial Waters Jurisdiction Act, 1878. But that if it were sought to justify the act as being done in vindication of Treaty rights which were alleged to be infringed by the net being set in an improper place, that would seem to be a question within the jurisdiction of the special Court which had to decide Treaty matters, and might thus be taken to have at any rate concurrent jurisdiction in the matter. That if that were so, there would seem to be no objection to Colonial legislation in the direction proposed.

That Mr. Bramston was accordingly to request us to take the papers into our consideration and to advise your Lordship: whether, in our opinion, it was competent to the Legislature of Newfoundland to pass an Act providing for the trial, without the consent of the Governor or in a summary manner, of offences which, under the

E 65453.-25. 25.-7/91.

PUBLIC RECORD OFFICE

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