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PUBLIC RECORD OFFICE

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C.O.885

ALLY WITHOUT PERMISSION OF THE BE REPRODUCED PHOTOGRAPHIC-

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16 PUBLIC RECORD OFFICE, LONDON

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made under the authority of an Imperial Act of Parliament within 28-29 Viet., C. 63, Section 2.

Act which That the Legislature of Newfoundland had this year passed an enacted that the provisions of the Act of 1905 with reference to which the above opinion was given should not he applied to vessels exercising Treaty rights of fishery, but that as the Act of 1906 was expressed as requiring the approval and confirmation of His Majesty in Council before it was brought into operation, and that as it might be necessary or expedient to allow it to remain in suspense as part of the proposed modus vivendi if not for other reasons, your Lordship would be glad to have our advice as to whether it would be lawful for His Majesty in Council, under the Act of 1819, to give instructions to the same effect, ie, to direct that the provisions of the Foreign Fishing Vessels Act, 1905 in question should not be applied or be held to be applicable to vessels from which inhabitants of the United States exercised the liberty of fishing under the Convention of 1818.

That on this point there was no difference of principle between His Majesty's Government and the Colonial Government; that the only question was whether His Majesty's Government had power by Order in Council to carry out in this respect the suspended Act of 1906.

That the difficulty with which His Majesty's Government were confronted was connected with the administration of certain other Colonial laws and regula- tions having the force of law, viz., the Act, No. 19, of 1899, relating to light dues : the Act, No. 13, of 1898, relating to Customs; and the Colonial Fishery Regulations, made under the Act, No. 3, of 1898. That His Majesty's Government have contended ; that that these Acts and Regulations were binding upon United States fishermen the United States Government took the contrary view. That the proposed motus vivendi would probably involve some relaxation of these Acts and Regulations, in favour of the United States fishermen, but that to any such relaxation the Govern- ment of Newfoundland were at present strongly opposed, except as regards the lia- bility to the payment of light dues, which they were prepared to waive.

of.

any

That it was presumed that if His Majesty's advisers, as responsible for the carrying out of His Majesty's Treaty obligations, were satisfied that the application of these Acts and Regulations to the United States fishermen and their vessels was contrary to the true intent of the Convention, it would be possible and lawful for His Majesty by Order in Council to direct that any such Acts and Regu- lations should not be so applied, and to enforce any such direction through the Naval Officers on the coast, and that the validity of any such Order in Council or of any action taken under it could not be impugned on the ground that His Majesty's Government had placed an incorrect interpretation on the terms of the Convention.

That the point on which your Lordship felt some doubt was this: whether His pro- Majesty's Government could properly pass an Order in Council to secure the visional relaxation in favour of United States fishermen of laws and regulations which they have contended, and as at present advised, proposed still to contend, were binding on them under the Convention.

That the matter was urgent. That your Lordship would therefore be obliged if we would take his letter into our early consideration, and favour you as soon as possible with our report on the following points, viz. :—

1. Whether His Majesty in Council had power under the Act 59, George III., C. 38, to order that the first part of Section 1, and the whole of Section 3, of the Newfoundland Foreign Fishing Vessels Act, 1905, should not apply or be applied to vessels from which inhabitants of the United States were exercising the liberty of fishing assured to them by the 1st Article of the Convention of the 20th October, 1818 ?

2. Whether His Majesty in Council had power under the same Act to direct that any other laws or regulations of the Colony, the enforcement of which on inhabi- tants of the United States exercising the Treaty right of fishery or on the vessels from which they were exercising it, would, in the opinion of His Majesty's Government, be contrary to the Convention, should not be so enforced ?

3. Whether the words in the same Act "such regulations, &c., as shall or may be from time to time deemed proper and necessary for the carrying into effect the purposes of the said Convention" conferred on His Majesty's Government an absolute discretion, the exercise of which could not be questioned before a court of law on the ground that diplomatically His Majesty's Government were upholding a different construction of the Convention?

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4. That if this were not the case, or it were doubtful whether it could success- fully be maintained before a court of law, that an Order in Council directing compli ance with the terms of a modus vivendi, designed to facilitate the settlement of the question what were the real purposes of the Convention, was one which carried into effect purposes of the Convention, and was therefore valid and enforceable?

5. What generally were the limitations, if any, on the exercise of the powers conferred on His Majesty in Council by the first section of the Act 59, George III., C. 38 ?

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, although the Newfoundland Foreign Fishing Vessels Act, 1905, may be disallowed by His Majesty in Council, or, (so far as Sections 1 and 3 are concerned), may be treated by the Courts as repugnant to 59, George III., C. 38, and therefore void, under the Colonial Laws Validity Act (28 and 29 Vict., C. 63) Section 2, yet while that Colonial Act stands duly allowed by His Majesty, it would not be in accordance with constitutional principle or practice for His Majesty in Couned to order that the operation of particular sections should be suspended, either wholly, or for such period as His Majesty in Council may be pleased to fix.

The Colonial Act in question is, however, incompetent to affect, and indeed does not assume to affect, the powers of His Majesty in Council under 59, George III., C. 38, to make such regulations, and give such orders, directions, and instructions as may be deemed proper and necessary under existing circumstances for carrying the Convention of 1818 into effect, and if euch orders or instructions are inconsistent with Sections 1 and 3 of the Colonial Act, the latter will be over-ruled in effect so far as American fishery rights are concerned.

2. We think that the powers of his Majesty in Council under 59, George III.,. C. 38, should be exercised strictly in the form permitted by the terms of the Act, viz., as regulations and instructions, and not as a revocation or suspension of Coloniaĺ All Colonial legislative measures which have received the assent of His Majesty. laws or regulations inconsistent with such regulations and instructions will be thereby rendered invalid,

3. The discretion conferred on His Majesty in Council under 59, George III., C. 38, is absolute, and the orders made in the exercise of that discretion could not be properly questioned in a court of law, except on the ground, not likely to be affirmed. that they were not in truth deemed by the Government to be proper and necessary for the purposes of the Convention. The mere fact that, in controversy with the United States, His Majesty's Government are contending for a construction of the Convention which would entitle them to subject the American fishermen to particular restrictions or interruptions does not compel them to impose such restrictions nor prevent them from issuing an order inconsistent with them if they deem it proper and necessary with the object of maintaining the Convention under all the circum stances to do so, especially where the order is temporary, and for the purpose only of a modus rivendi, until different regulations can be agreed.

4. The fact that the terms of a modus vivendi were designed to facilitate the discussion or settlement of Rome dispute which has arisen on the construction of the Convention would, in our opinion, be held by a court to establish that such terms were deemed proper and necessary". for carrying the Convention into effect provided, of course, that they were such regulations as could be made under the Statute 59, George II., C. 38. If the modus rivendi were framed so as to be a formal and express suspension of subsisting Colonial legislation by the exercise of His Majesty's pre- rogative, the Order in Council would be objectionable on grounds independent altogether of the Statute in question.

5. We are not aware of any limitations on the exercise of the powers conferred on His Majesty in Council by Section 1 of 59, George III., C. 38, other than such as appear from the limited purpose of the Statute, and the general authority of the Imperial Legislature.

The Right Honourable

The Earl of Elgin, K.G.,

&c.,

&c., &c.

We have, &c.,

JOHN L. WALTON, W. S. ROBSON.

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40959

No. 48.

(CYPRUS.)

MY LORD,

LAW OFFICERS to COLONIAL OFFICE.

[Status of Cypriot Shipping.]

Royal Courts of Justice,

November 6, 1906.

We were honoured by your Lordship's commands signified to us by Mr. Ber- tram Cox, in his letter of the 15th May last, stating that he was directed by your Lordship to draw our attention to the report of the 17th of April, 1902,* of our predecessors in office, on the status of Cypriot shipping.

That our predecessors reported that they were of opinion:-

(1) That the power to regulate and protect Cypriot shipping free from the control of the Porte was vested in His Majesty under the conventions between Great Britain and Turkey of the 4th of June and the 14th of August, 1878.

(2) That provision could be made by Order in Council for: (a) the establishment of a Cyprus register for Cypriot shipping; (b) for the introduction of the British red ensign with a distinguishing badge as a flag for Cypriot shipping; and (c) for the application to Cypriot vessels of the usual Merchant Shipping Regulations and of enactments for the punishment of offences committed in Cypriot ships beyond the territorial jurisdiction of Cyprus. But that with this view the late Lord Chancellor disagreed and adhered to the opinion expressed in the Law Officers' report of the 21st of March, 1879. That copies of the reference to Lord Halsbury, with its enclosures, and of his reply were enclosed.

That in view of the importance which the High Commissioner attached to the matter, as was witnessed by the telegrams, copies of which were enclosed, he was to request us to take the matter generally into our consideration and, in view of the conflict of opinion already referred to, to be good enough to report upon the questions submitted to our predecessors in office in 1902.

We have taken the matter into our consideration and, in obedience to your Lordship's commands, have the honour to

Report--

That we agree with the report made by our predecessors upon the questions submitted to them in 1902

We have, &c.,

JOHN L. WALTON. W. S. ROBSON.

The Right Honourable

The Earl of Elgin, K.G.,

&c., &c.,

&c.

No. 112 in Vol. VI.

† No. 196A in Vol. III.