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PUBLIC RECORD OFFICE
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Reference :-
C.O.885
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(7) That your Lordship had carefully considered the above representations and had caused certain amendments, drafted by Parliamentary Counsel, to be introduced into the Bill. That these were underlined in red ink in the copy of the revised Bill transmitted for our consideration.
(8) That the only amendment of substantial importance was the extension of the operation of Clause 1 (2) so as to exempt from reservation not only Bills of an electoral character affecting the Legislative Assembly (or House of Assembly), but also Bills of the like character affecting the Legislative Council.
That in this respect the provisions of the Bill as it was originally submitted to our predecessors in,office had been restored, and that in this connection he was to refer us to the correspondence forwarded and especially to the letters of the 10th and 14th March, 1905, which indicated the possibility of representations on this subject from the States possessing elective Legislative Councils.
That such representations had been made by the Governments of Tasmania and Victoria (as would be seen from the memoranda contained in Enclosure F) and that he was to say that your Lordship, on carefully reconsidering the whole question, had come to the conclusion that, as a matter of policy, all Bills of an electoral character, whether relating to the Upper or Lower House, should be put upon the same footing and exempted from the necessity of reservation.
(9) That the amendments now made in the Bill approved by the late Attorney- General being so few and, with the one exception last referred to, so unimportant, and the anxiety of the State Governments, other than that of Victoria, that the Bill should become law being so great-an anxiety which was evidenced by a telegram from the Governor of New South Wales of the 30th October and which was fully shared by your Lordship your Lordship, with a view to minimizing the delay which must necessarily take place before the Bill could be introduced into Parliament, had thought it best to send out the revised Bill immediately to the Governments of the six States without obtaining our previous concurrence, but he was to suggest that, should there be any further amendments which we considered necessary or advisable, they could be telegraphed out to Australia.
That in this case it would be expedient that your Lordship should be informed of such amendments in time to enable you to telegraph them at or about the time when the despatches might be expected to reach Australia, viz., the first week in December.
(10) That he was to enclose copies of the despatches which had been addressed. to the Governor of New South Wales (which was practically in the same terms mutatis mutandis as those addressed to the Governor of Queensland, South Australia. and Western Australia), Tasmania, and Victoria. That these despatches explained fully the amendments made in the revised Bill and that an attempt had been made in the Victoria despatch and its accompanying memorandum to meet the objections of the Victoria Government to the Bill and procure their concurrence therein.
That he was accordingly to request us to be good enough to take his letter and its enclosures into our consideration and, for the reasons above given, at the earliest possible date to favour your Lordship with our opinion upon the provisions of the revised Bill and in particular to report :-
1. Whether we concurred in the Bill as it now stood?
2. And, if not, what amendments should, in our opinion, be introduced? We have taken the matter into our consideration and, in obedience to your Lordship's commands, have the honour to
Report-
That we concur in the Bill as it now stands.
The Right Honourable
The Earl of Elgin, K.G.,
&c., &c., &c.
We have, &c.,
JOHN L. WALTON. W. S. ROBSON.
44240
No. 53A.
(NEWFOUNDLAND.)
LAW OFFICERS to COLONIAL OFFICE.
[Question whether the modus vivendi with the United States Government is a Treaty, and its effect on the fisheries question on_certain Colonial Statutes: opinion of Messrs. Cohen and Coles.]
Royal Courts of Justice,
November 30, 1906.
MY LORD,
WE were honoured by your Lordship's commands signified to us by Mr. Ber-. tram Cox in his letter of the 10th instant stating that he was directed by your Lordship to transmit to us the copy of a telegram from the Governor of Newfound- land, communicating the case submitted to Messrs. Cohen and Coles as to the effect of the modus vivendi which His Majesty's Government have concluded with the United States Government on the fisheries question on certain Colonial Statutes and the opinion given by those gentlemen on the subject.
That he was also to forward copy of the correspondence between His Majesty's Government and the United States Government, in which the modus vivendi was embodied.
That the opinion of Messrs. Cohen and Coles appeared to be in effect that the modus vivendi was a treaty, but that the Colonial Statutes to which their attention was called saved only rights and privileges granted by treaty at the time they were passed.
That as to whether the modus rivendi was a treaty he was to observe that in tlie case Baird v. Walker (A.C. 1892, pp. 491-497) the modus vivendi made with France in 1890 over the lobster fishery question was discussed on the footing of its being a treaty.
That a copy of the modus vivendi of 1890 was also enclosed.
That it should, however, be pointed out that the treaty-making power of the President of the United States of America was subject to the approval of the Senate. That it might, therefore, be contended that the present modus vivendi not having been so approved did not constitute a treaty. That on the other hand it was possible that strictly the modus vivendi of 1890 required ratification by the French Parliament.
That of the various Colonial Statutes referred to in the case submitted by the Colonial Government, it would be seen that the Bait Act mentioned was that of 1887, not that of 1889, now Chapter 129 of Revised Statutes of Newfoundland. That possibly the reason why the attention of Messrs. Cohen and Coles was directed to the earlier Bait Act was because it was specially confirmed, ratified, and finally enacted" by an Order of Her late Majesty in Council."
That sections in these Acts which safeguard treaty rights ran as follows:- A. Bait Act of 1887:-
Nothing in this Act shall affect the rights and privileges granted by treaty to the subjects of any State in amity with Her Majesty."
(That the same words appeared in Chapter 129 of the Revised Statutes with the substitution of "Chapter" for " Act.")
B. The Marine and Fisheries Act of 1898, 61 Vic., cap. 3:-
"Nothing in this Act or in any rules and regulations to be made hereunder shall be construed to affect the rights and privileges granted by treaty to the subjects of any State or Power in amity with Her Majesty."
C. The Foreign Fishing Vessels Act, 1905:—
"Nothing in this Act shall affect the rights and privileges granted by treaty to the subjects of any State in amity with His Majesty."
That with reference to the construction which Messrs. Cohen and Coles have put upon these provisions, he was to point out. that Section 6 of Chapter I. of the Consolidated Statutes of Newfoundland (Second Series), -1892, provided:—“ In the
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