CO885-(15-16) — Page 465

PUBLIC RECORD OFFICE

Reference :--

C.O.885

16 PUBLIC RECORD OFFICE, LONDON

ALLY WITHOUT PERMISSION OF THE BE REPRODUCED PHOTOGRAPHIC- COPYRIGHT PHOTOGRAPH-NOT TO

4

course, if the Colonial Statutes creating the offences now in question are construed so as not to have any operation hostile to the Convention, then the draft Order in Council cannot properly be impeached on the ground that it overrides Colonial law.

We think that if it should be decided to adopt the third Article it would be well to introduce some words confining its operation to cases that arise in connection with the fishermen, and we have drafted a clause accordingly.

2. We think the Order would probably be adequate for the purposes for which it is intended. It would secure that the shipment of Newfoundlanders by American fishermen outside the three-mile limit should not be made the basis of interference and that American subjects should not be penalized, but it would not operate to prevent the Colonial Government from taking proceedings against its own subjects, except whilst they are on American ships, with respect to the breaches by them of the Colonial law.

3. We do not think that the Order in Council can be kept secret until its proclamation becomes necessary. It must, according to Section 3 of the Rules Publication Act of 1893, be sent forthwith to the Queen's Printer and printed and sold by him.

The Right Honourable

The Earl of Elgin, K.G..

&c.. &c.. &c.

DRAFT ORDER IN COUNCIL.

We have, &c.,

JOHN L. WALTON. W. S. ROBSON.

Whereas, under the provisions of Article 1. of a Convention concluded at London on the 20th day of October, 1818, the inhabitants of the United States of America have the liberty of taking, drying, and curing fish in common with British subjects on certain parts of the coasts of Newfoundland, and whereas, by Section I. of an Act passed in the fifty-ninth year of His late Majesty King George III., it is enacted that it shall and may be lawful for His Majesty, by and with the advice of His Majesty's Privy Council, by any Order or Orders in Council, to be from time to time made for that purpose, to make such regulations, and to give such directions, orders, and instructions to the Governor of Newfoundland, or to any officer or officers on that station, or to any person or persons whomsoever, as shall or may be from time to time deemed proper and necessary for the carrying into effect the purposes of the said Convention with relation to the taking, drying, and curing of fish by the inhabitants of the United States of America, in common with British subjects, within the limits set forth in the said Article of the said Convention, any Act or Acts of Parliament, or any law, custom, or usage to the contrary notwith- standing; and whereas by an Order in Council made on the 19th June, 1819, in pursuance of the powers vested in His Majesty by the said Act, certain directions were given to the Governor of Newfoundland, and whereas His Majesty by and with the advice of His Majesty's Privy Council deems it proper and necessary for the carrying into effect the purposes of the said Convention, to give further direc- tions with relation to the taking, drying, and curing of fish by the inhabitants of the United States of America in common with British subjects on the Coasts of Newfoundland :

Now therefore, His Majesty, in pursuance of the powers vested in His Majesty by Section I. of the Act 59 George III., cap. 38, by and with the advice of His Majesty's Privy Council is pleased to order, and it is hereby ordered as follows:--

I. No eles provisions, rules, or enactments which may be in force with regard to the boarding and bringing into port of foreign fishing vessels found in the waters of Newfoundland shall, within the limits prescribed by the said Convention of 1818, apply to vessels in which inhabitants of the United States of America resort to the waters of Newfoundland for the purpose of exercising the liberty assured to them by that Article 1. of the said l'onvention.

5

II. If any question should arise before any Magistrate, Justice of the Peace, Judge or Court in Newfoundland, t in relation to, concerning, or in anywise in respect of the presence on board any such vessel of any caplin, squid, or other bait fishes, or of ice, lines, seines, or other outfit or supplies for the fishery, the burden of proof that the said bait fishes and supplies and outfits have been purchased within the waters of Newfoundland shall rest upon the person or persons alleging the same.

III. It shall not be lawful for any person, without the authority in writing of His Majesty's Senior Naval Officer on-the-Newfoundland Station

A. To serve any process of low on any vessel or boat need or employed by inhabitants of the United States of Amerien in the exercise of the liberty of taking fish assured-to-them-by the let Article of the Convention of 1818, or to go on board of any such vessel or boat-for-any aneh-purpose as aforesaid.

III. It shall not be lawful for any person without the consent of His Majesty's Senior Naval Officer on the Newfoundland Station, in any proceedings against inhabitants of the United States exercising or claiming to exercise the liberty to take fish assured to them by the first article of the Convention of 1818, or against any of their boats or vessels or against any persons engaged by them to form part of the crew of the vessels used or employed by such inhabitants in the exercise of such right

A. To serve any process of law upon any boat or vessel so used or employed for any act or thing done in the exercise or alleged exercise of the said right, or which may, in the opinion of the said Naval Officer, give rise to any question or dispute in relation to the common fishery established or referred to in the said Convention, or to go on board any such vessel or boat for the purpose of serving such process.

B. To arrest or seize any such vessel or boat or to seize remove or disturb any gear nets apparel or other furniture or stores belonging to such vessel or boat.

IV. This Order shall commence and come into operation on a day to be pro- claimed by the Governor of Newfoundland.

V. The Governor of Newfoundland, His Majesty's Senior Naval Officer on the Newfoundland Station, all Judges, Magistrates, Justices of the Peace, Constables, and all other persons whatsoever in Newfoundland shall take notice hereof and govern themselves accordingly.

J. L. W.

W. S. R.

29618

;

:

}