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PUBLIC RECORD OFFICE
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16 PUBLIC RECORD OFFICE, LONDON
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Colony's powers of self-government resulting from the terms of Section 1 of the Act of 1819, and the manner in which those powers were conferred on the Colony, would merely place the Colony in the same position in regard to the exercise by American citizens of their Treaty right of fishing as it seems to be in regard to the exercise by American fishermen of their right to enter for the four specified purposes the reserved bays and harbours of Newfoundland. It is presumed that the effect of Section 3 of the Act of 1819 is strictly to disable the Colonial Legislature without the authority of His Majesty in Council from imposing restrictions on the exercise of that right.
27. It is proper to add that of the various Law Officers' reports as to the right of the Colony to regulate its fisheries which your predecessors had before them in framing their opinion of the 21st November, 1905,* that of the 19th July, 1873,f was given with reference to the Washington Treaty of 1871, that of the 27th December, 1888, with reference to a question merely of the treatment of British ships, and those of the 2nd April, 1890, and the 2nd July, 1891,§ with reference to the French fisheries question. It is true that the report of the 6th January, 1863,|| was given with reference to an incident in the waters of Labrador open to United States fishermen under the Convention of 1818, but that incident was treated as though it were one under the Reciprocity Treaty of 1854 which was then in force.
28. I am to request you to take this letter into your consideration, and favour Lord Elgin with your report on the following points:-
(1) Does the direction given to the Governor of Newfoundland in the Order in Council of the 19th June, 1819, "to conform himself to the said Treaty," bind the whole Colonial Legislature, of which he is a part, and if so, does it operate to make invalid any Colonial legislation derogating from American rights under the Conven- tion to the extent of such derogation?
(2) Is the delegation of the power of giving instructions to the Governor of Newfoundland, which the same Order appears to make in favour of the Secretary of State, proper and valid?
(3) What is the true scope of the powers conferred on His Majesty in Council by Section 1 of the Act 59 George III., Cap. 38? Did they in particular prior to 1832 extend to the prevention of American fishermen from engaging in trade not otherwise unlawful, and from recruiting and employing British subjects, to the prevention of British subjects from associating themselves in such trade or enlisting on or serving on board American vessels, and to the regulation of the modes in and times at which the common fishery should be conducted?
(4) If they extend beyond the mere securing to American fishermen of the bare rights guaranteed by the Convention, was the Sovereign in 1832 or subsequently, whether with the approval of the Privy Council or not, competent to confer the same powers on the Legislature of Newfoundland?
(5) If your answer to this question is in the affirmative, is His Majesty in Council competent, by Order in Council, to override on any matter falling within his powers the laws and regulations of the Colony?
(6) If your answer is in the negative,
(a) Can an Order in Council of the kind issued prior to 1867, in cases where it was considered desirable to leave to their operation Colonial Acts already in force, be regarded as an Order in Council made under Section 1 of the Act 59 George III., Cap. 38?
(b) Can the Order in Council specially confirming the Bait Act of 1887 be so
regarded?
(c) Can any Order in Council which may be so regarded be revoked by His Majesty in Council, in so far as it applies to American fishermen or to British subjects fishing with them?
(7) What is the precise effect of Section 15 of the Imperial Customs Act 20-21 Victoria, Cap. 62, and of Section 151 of the Imperial Customs Consolidation Act, 1876 ?
(a) If the Colonial Legislature is generally without the authority of His Majesty in Council, not competent to impose conditions on the exercise
of the American right of fishery, can it be said to have the authority
• No. 23.
† No. 840 in Vol. II.
Nos. 177 and 218 in Vol. IV.
No. 134 in Vol. IV.
No. 154 in Vol. I.
of Parliament in regulating the Customs treatment of American fishing vessels on the Treaty Coast?
(b) If so (assuming your answer to Question 1 to be in the affirmative), is its right to regulate such treatment conditional on the regulation not being in derogation of American rights or is it absolute?
(c) If absolute, can His Majesty in Council waive in favour of American vessels any requirement of the Colonial Customs Law which His Majesty's Government may decide to be in derogation of those rights?
(8) Generally.
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GENTLEMEN,
I am, &c.,
H. BERTRAM COX.
COLONIAL OFFICE to LAW OFFICERS.
Downing Street, November 26, 1906. WITH reference to the letter from this Department of the 10th instant, in which your opinion was requested on the question of the respective positions of His Majesty's Government on the one hand and the Government of Newfoundland on the other under Section 1 of the Act 59 George III., Cap. 38, I am directed by the Earl of Elgin to lay before you, for consideration in conjunction with the docu ments enclosed in that letter, copy of a despatch addressed by the Governor of Newfoundland to the late Secretary of State for the Colonies on the 17th November, 1905, from which it will be seen that the Colonial Government were advised last year by the Minister of Justice, that certain proceedings by inhabitants of the United States of America in evasion of the Foreign Fishing Vessels Act, 1905, might be dealt with by an Order in Council made by His Majesty under the provi- sions of the section mentioned.
2. Lord Elgin regrets that your attention was not drawn to this despatch, either in the letter under reference, or in the printed memorandum which accom- panied it.
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I am, &c..
H. BERTRAM COX,
REPORT OF THE LAW OFFICERS.
(1) That in our opinion the direction given to the Governor of Newfoundland in the Order in Council of the 19th June, 1819, binds the Colonial Legislature and operates to make invalid any Colonial legislation derogating from American rights under the Convention to the extent of such derogation.
(2) We think not.
(3) The powers conferred on His Majesty in Council by Section 1 of the Act of 1819 are confined to what may be deemed proper and necessary for the carrying into effect the purposes of the Convention of 1819, but would not include, in our opinion. the power to regulate the modes in and times at which the common fisheries should be carried on-so as to affect American citizens. Prior to 1832 the King and Parliament of Great Britain had also all the general powers of government exercise- able over a Colony acquired by Settlement, and by virtue of those powers American fishermen might have been prevented from engaging in trade or British subjects might have been prevented from serving on board American vessels: these are matters outside the Act of 1819. Since 1832 the general powers last mentioned have been conferred on the Legislature of Newfoundland. They do not necessarily concern the American Treaty rights at all, but if they are used in such a way as to prevent or impede the exercise of American Treaty rights, then they come in conflict with the provisions of the Act of 1819, subject to which the grant of a legislature was made to Newfoundland by the King, and to which the legislative power of Newfoundland is subordinate. Thus, the Colonial Legislature may prohibit Newfoundlanders from
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