CO885-(15-16) — Page 486

PUBLIC RECORD OFFICE

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ETTETIC.O.885

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16 PUBLIC RECORD OFFICE, LONDON

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15. The power and authority of the Legislature of Newfoundland to make laws are as now defined in Article V. of the Letters Patent of the 18th March, 1876. (These with the Letters Patent of the 27th July, 1905, and the Royal Instructions of the 28th March, 1876, form Enclosure 5 to this letter.)

16.

In 1819 the Imperial Parliament instead of itself providing what regula- tions were necessary to be made, or directions and orders to be given, for the carrying into effect the purposes of the Convention of 1818 with relation to the taking, drying, and curing of fish by inhabitants of the United States of America in common with British subjects in the open waters of Newfoundland, left this to His Majesty in Gouncil. When the Legislature of Newfoundland came into existence, the Imperial Parliament had thus provided a particular procedure for carrying into effect the purposes of the Convention, and it would seem at least open to doubt whether the authority conferred on the Colonial Legislature by the Sovereign must not be regarded as limited by the fact that the Imperial Parliament had already made specific provision as to how the acts of certain persons resorting to or being in the Colony, viz.: American fishermen exercising the Treaty liberty of taking, drying, and curing fish, and British subjects fishing in common with them were to be regulated.

17. At the time of the passing of the Act 59 Geo. III., Cap. 38, the Magdalen Islands, which are included in the limits assigned to the United States fishery by the Convention of 1818; formed part of Lower Canada, and in 1825 a part of the coast of Labrador, also included in those limits, was annexed by Act of Parliament to that province. Since 1791 there had been in existence in Lower Canada a Legis- lature empowered by an Imperial Act (31 Geo. III., Cap. 31) to make laws for the peace, welfare, and good government of the province. The terms of Sections 3 and 4 of the Act 59 Geo. III., Cap. 38, appear to have conferred on the Sovereign in Council exclusive authority as against all the existing Legislatures of the North American provinces, and were, in fact, so interpreted by the Legislature of Nova Scotia in 1836 and 1840, and by that of Prince Edward Island in 1843, and as pointed out in the enclosed memorandum the Government of Newfoundland applied for an Order in Council under Section 4 as recently as the year 1886. Section 1 did not, however, definitely oust the jurisdiction of the Legislature of Lower Canada, and as a matter of fact no Order in Council was ever made under that section dealing with the common fishery in the waters of Lower Canada, but such an Order was applied for, as is also pointed out in the enclosed memorandum, by the Governor of The Lower Canada in 1827, and by the Legislature of Nova Scotia in 1841. memorandum gives further reasons for supposing that it was intended that the powers of the King in Council under Section 1 should be exclusive, and it would have been strange if, while Parliament was reserving to the King in Council the power of imposing restrictions on American fishermen in the waters in which they had no rights, save the four privileges of shelter, repairs, purchasing wood, and obtaining water, it should have intended to leave to the Legislature of Lower Canada the power of regulating the conduct of American fishermen in those waters in which they were entitled under the Convention to take fish. The question of the extent and nature of the respective powers of His Majesty in Council and the Legislatures of the North American mainland, under the Act 59 Geo. III., Cap. 38, would, how- ever, seem now to be of no direct importance, seeing that by the British North America Act (30 Vic., Cap. 3) the Parliament of the Dominion of Canada was granted power to make laws for the peace, order, and good government of Canada in relation inter alia to the sea fisheries of the Dominion (Section 91 (12)), and that by Section 132 of the same Act it was provided that "the Parliament and Government of Canada shall have all powers necessary or proper for performing the obligations of Canada, or of any Province thereof, as part of the British Empire, towards Foreign Countries, arising out of Treaties between the Empire and such Foreign Countries." It is presumed that these powers operated to confer on the Parliament of Canada the same powers, in relation to the waters of Canada, as were vested in His Majesty in Council by the Act 59 Geo. III., Cap. 38, even if it had originally been intended that those powers should be exclusive.

18. No powers such as those which have been conferred upon the Parliament and Government of Canada have ever been conferred by the Imperial Parliament upon the Legislature of Newfoundland.

19. It should here be pointed out that the Commission issued to Sir T. Cochrane in 1832 and the subsequent Commissions, Royal Instructions, and Letters Patent

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defining the powers of the Colonial Legislature were all approved by the Sovereign in Council. Even if the Act of 1819 permitted the delegation of the powers of the Sovereign in Council under Section 1 to the Colonial Legislature, it would seem to be doubtful whether an Order in Council merely approving the terms of Letters Patent, &c., could properly be regarded as an Order in Council under that section. On this point I am to refer you to an opinion given by your predecessors on the 27th August, 1880* (Enclosure 6), respecting the Imperial Act 39 and 40 Vic., Cap. 47. This Act enabled Her late Majesty by Order in Council to create Legisla tures in certain West Indian Islands, and in like manner to amend or alter the constitution of those Legislatures. It was proposed in the draft Order constituting the Legislatures in question to take power to Her Majesty to make any alterations that might be necessary by Letters Patent. The Law Officers, however, advised that any alterations in the mode of appointment or in the powers of the Legislative Councils should, in their opinion, be the subject of another Order in Council and that they doubted whether it was a compliance with the power which the Statute reserved to Her Majesty to provide by the present Order that alterations in the Legislatures or the powers thereof should be made by Letters Patent.

20. The question, however, is whether the Sovereign, whether or not acting with the approval of Council, could legally transfer to or confer on the Legislature of Newfoundland the powers vested in him in Council by Section 1 of the Act 59 George III., Cap. 38, or in any way vary or supplement the procedure set up by that section. The Sovereign in 1832 stood in relation to Newfoundland in certain matters, viz., those covered by the Act of 1819, as the delegate of the Imperial Parliament, and the doubt which Lord Elgin feels is as to the King's power to exercise His prerogative without regard to his position as the delegate of the Imperial Parliament in those matters. It is a well-established rule that the Crown cannot by the exercise of its prerogative alter a Constitution conferred by Act of Parliament, and applying the general principle underlying this rule to the present question, it is not clear what power the King had by the exercise of his prerogative in 1832, to alter the arrangement embodied in Section 1 of the Act of 1819, which was in effect that any legislation respecting certain proceedings in the waters of the Island of Newfoundland, if not made by the Imperial Parliament, should be made by His Majesty in Council.

21.

If it is held that the powers of His Majesty in Council under Section 1 of the Act 59 George III., Cap. 38, cover the whole field of the conditions on which the common fishery under the Convention is to be carried on and that those powers are exclusive as against the Legislature of Newfoundland, it follows that no laws of the Colony, however binding they may be in other respects, can be applied by way of regulation of, or restriction on, the American liberty of taking, drying, and curing fish, that any conditions to be imposed on the exercise of that liberty must be imposed by His Majesty in Council by Order in Council and that it is consequently not within the competence of the Legislature of Newfoundland of its own authority to call upon Americans exercising their Treaty rights under the Convention of 1818 to pay light dues, to obey the regulations made for governing the conduct of other fishermen or to refrain from purchasing fish or supplies, or from engaging or employ ing on board their vessels any non-American fishermen, or to prevent residents in the Colony from selling them fish and supplies, or from serving on board their vessels and fishing for them.

22. As regards the purchase of fish and supplies, Lord Bathurst's despatch to the Governor of Newfoundland of the 21st June, 1819 (pages 4 and 5 of Cabinet Print of 1852, Part I.f), directed the Governor to adopt with respect to American vessels attempting to carry on trade or to introduce articles for sale or barter into His Majesty's possessions the same means of control and the same penalties and forfeitures as would be legally applicable in the trade of any other nation possessing no privilege of fishing whatsoever. This was merely a direction for the enforcement of Imperial legislation which would of course apply to American fishermen, until ordered to the contrary by the Sovereign in Council under Section 1 of the Act 59 George III, Cap. 38. But when Imperial legislation ceased to stand in the way of the participation by foreigners in ordinary trade, an Order in Council would, it is presumed, have been necessary, if the prohibition against American fishermen engag- ing in such trade was to be continued. It is unnecessary to discuss the point whether

No. 235 in Vol. III.

↑ North American II,