§ Order of the Day for the Second Reading, read.
§ THE SECRETARY OF STATE FOR THE COLONIES (Lord KNUTSFORD)
My Lords, when I introduced this Bill on the 19th of March I gave such a full explanation of the reasons which necessitated the introduction of the Bill and of the general policy of Her Majesty's Government that I should not feel justified in going over that ground again at any length. But, as some of your Lordships who are present to-night were not 1405 Present on the former occasion, perhaps I may be allowed to refer as briefly as possible to some of the leading points I then brought under the notice of your Lordships. There is this additional reason for my taking this course. Since the First Reading of this Bill we have had the advantage of hearing a very able and temperate speech at the Bar of this House by Sir William Whiteway, the Premier of Newfoundland; and some of the points to which I shall refer appear to me to afford a sufficient answer to some of the objections which Sir William Whiteway raised. May I observe in passing that although Her Majesty's Government could not give their assent to many of the statements made in the Petition of the colonists—and, although they regretted the tone of some parts of that Petition—yet from the first they have never hesitated to give their ready assent to the prayer of that Petition that the Representatives of the colony should be heard at the Bar of the House? In the first place, then my Lords, I endeavoured to show on the former occasion that this Bill does not interfere with many local questions; that it does not interfere with any matter of internal regulation or administration in the colony, nor with the independence of the Colonial Legislature. The Bill is of an Imperial character, involving international obligations, and it has for its sole object to enable this country to secure the observance of those international obligations and arrangements which are binding upon us. Those obligations affect the fishery rights of the French along certain parts of the coast of Newfoundland, and are as binding upon the colony, as part of the Empire, as upon this country. We hold that the colonists received the grant of a Representative Legislature subject to such Treaties and obligations. Therefore, it became their duty, in the first instance, to pass such measures as might be necessary to secure the performance of those obligations; and I may say that in 1832, when the Legislature was given to the colony, Lord Goderich, Secretary of State for the Colonies, pointed out in a Despatch, dated July 27 of that year, that the Fisheries Act, which was an Act of the Imperial Parliament, would be continued two years—that is, till 1834 — but that then the Colonial 1406 Legislature should be called upon to act. I do not gather that this is disputed by Sir William Whiteway, though he made use of the expression that "the Legislature of the colony did not assume the duty." If he means by that that the colony does not acknowledge the duty, he has afforded the strongest possible argument, not only for the introduction of the Bill, but for its passing, because it amounts to a refusal to legislate. But I did not understand him to mean that. I understood him to point out to your Lordships that ever since 1834 the Colonial Legislature had not at any time been called upon to legislate, and that, in fact, no legislation had been passed either here or in the colony since that date. That is true. There has been no question of legislation, from 1834 until now, but the reason is very obvious. Since that time the naval officers have year after year secured the observance of the Treaties along that part of the coast, and their powers were never doubted. It was not until last year that the question was raised as to the powers of the naval officers since the expiration of the Act of George IV. Proceedings were taken against Sir B. Walker, in the Supreme Court, and a decision was given on the points of law against the officers. Therefore, while it is not unnatural that no doubts having been raised no legislation should have been resorted to or required, during those many years, it is clear that doubts having now been raised, they must be removed by legislation. I showed on the former occasion that the Colonial Government had up to this time, that is until this Bill was introduced, declined to legislate, and that the responsibilities of this country remain in full force, and I showed also that the independence of the Colonial Legislature was guarded by the provisions of the 2nd section of the Act. I proceeded also on the former occasion to establish three other points. The first, and a very important one in our judgment, is this: I showed that Her Majesty's Government had from the very first endeavoured to the best of their power not only to ascertain, but to meet the wishes of the Colonial Government consistently with our observance of international obligations. After arbitration on the lobster question had been refused by the Colonial Government, ful 1407 discussions took place in this country between ourselves and the Premier and his colleagues, whom we had previously invited over to consult generally on matters connected with the fisheries, and especially with the object of determining whether it would be possible to submit to arbitration the French claims connected with the lobster fisheries, and to consult generally with them as to the terms of reference. Their views as to arbitration, which, I may say, required as a condition the undertaking on the part of the French to withdraw altogether from the coast, were reduced to writing after discussion, and submitted to the French Government, who declined to accept them. After those views had been so proposed to the French Government and refused, we received what I still must call the ultimatum of the Newfoundland Government of December 5, 1890. In this the Colonial Ministers declared that they would not assent to any arbitration which did not include withdrawal of the French from the coast; and, further, that they declined altogether to legislate with reference to the modus vivendi for the season of 1891. It was not until after that ultimatum had been received that we were reluctantly compelled to arrive at the conclusion that we must give up all hopes of assistance and co-operation on the part of the Newfoundland Government in arriving at a settlement, and that we must take the conduct of affairs into our own hands. It has been argued that that ultimatum was displaced by a subsequent statement of the views of the Colonial Government on March 9. If yours Lordships will turn to page 33 of the last Paper that has been presented to Parliament [C. 6334], you will see the Despatch which is supposed to have displaced the ultimatum. I may say that the Colonial Government were informed on January 23 that Her Majesty's Government felt compelled to maintain the position they had taken up, and to commence negotiations with France for arbitration; and on March 7 they were informed that arbitration on the lobster fishery questions would shortly tak place; then, on March 9, came the protest from the Colonial Government, in a telegram from the Governor to myself— 1408My Government desire me, in reply to your Lordship's telegram of the 7th instant,—that is the one in which I asked him to inform his Government that arbitration on the lobster fishery question would take place—to reiterate the views already so often expressed by them to Her Majesty's Government that they can assent to no Reference of any one particular point arising under the Fisheries Clauses of the Treaties of Utrecht, Paris, and Versailles, while other questions involved in these clauses and the declarations appended to the Treaty of Versailles are withheld from the Reference. My Government contend that the only arbitration, if such a course be necessary, should be on the whole of the Fisheries Clauses and declarations, and this view has been repeatedly expressed by the delegates to Her Majesty's Government, and my Government cannot agree to have any legal representative before any such partial arbitration, and they protest against any such restricted reference. They beg to remind Her Majesty's Government that the colony cannot be bound by the decision of any arbitration to which it has not given its adhesion, and, moreover, they cannot comprehend why Her Majesty's Government should desire such an arbitration after the conclusive opinion expressed by the Marquees of Salisbury, and after Comte d'Aubigny's admission that the French had no right to lobster factories on the Treaty shore.I admit that the delegates repeatedly expressed their view that if any arbitration was necessary it should not be con fined to one point, though at the same time it was strongly urged upon me more than once that no arbitration was necessary. But on no occasion in my recollection, and that of others present at the interviews, did the delegates last year agree to even a general arbitration without coupling some proposal with it—that is to say, withdrawal of the French from the coasts or some reduction or limitation of the bounty system. I may, in confirmation of that view, refer to a Letter sent from the Colonial Office to the Foreign Office (it is to be found at page 20 of the last Paper presented) immediately after one of those interviews, of which I will venture to read an extractAt this interview Sir William Whiteway and Mr. Harvey explained that their wish was that the negotiations should proceed on the following basis—that the French should relinquish their rights on the Newfoundland coasts, and should confine their bounties to fish consumed in French territories or possessions, in exchange for the free purchase of bait front all parts of the coasts of Newfoundland, and for a territorial or money compensation in addi- 1409 tion. Sir William Whiteway and Mr. Harvey further assured his Lordship that they would be prepared to agree on behalf of the colony to any arbitration upon the basis of the withdrawal of the French from the coasts of Newfoundland.I merely cite that as a confirmation of my recollection of what passed during those interviews. Certainly the telegram which I have just read of the 9th March makes no offer to agree to any unconditional arbitration. That was the first point I endeavoured to establish. The second point was this—that in the circumstances of the case, and in the interests of peace and order, it had become necessary for Her Majesty's Government to endeavour to arrive at some settlement with the French; to get the extent of the French rights defined; and for that purpose to propose arbitration. As the lobster catching question, involving rights to erect lobster factories, was the most burning question of the day, most likely to lead to collision unless settled, and therefore most urgent, it was agreed by both Governments that the arbitration should in the first instance be confined to this lobster question. I ventured to point out to your Lordships, though it was hardly necessary to do so, the double advantage to be derived from this proceeding. First, there would be no danger of collision, the danger lying in the present uncertainty as to the extent of rights under the Treaties and the divergence of views held by the two Governments of those rights. I ventured also to point out as a second advantage, that the probability of arriving at, if not a permanent settlement, at all events some working arrangement satisfactory to all parties, would be largely increased when once the rights were defined. The third point I endeavoured to establish on the First Reading of the Bill was that, after Sir Baldwin Walker had reported to us in November, 1889, that it would be almost—Impossible to prevent collisions occurring in 1890 without some special provision was made; that there was an increasing feeling of resentment against the French, and increasing risk of this feeling showing itself in acts of an aggressive nature,that after receiving such an intimation as that from Sir Baldwin Walker, Her Majesty's Government were bound to anticipate this serious danger by en- 1410 deavouring to arrive at some modus vivendi for the season of 1890, while dealing with the larger question of arbitration. I further pointed out that the same reasons held good for the continuance of the modus vivendi for the season of 1891, and, indeed, that a most inflammatory notice which was published and circulated at many of the leading fishing stations had tended very materially to aggravate the position even as reported by Sir B. Walker. I showed also the reason why, with reference to this modus vivendi, legislation had become necessary, because of the doubts which had been raised in 1890 as to the powers of the naval officers and the decision of the Supreme Court against the existence of those powers, and because the Colonial Government had by that time, in what I have called their ultimatum, absolutely and distinctly refused to give effect to the modus vivendi for 1891. My Lords, I will now, having thus briefly pointed out some of the leading points which I endeavoured to bring under your Lordships' notice on the 19th March, proceed to address myself to what has happened since the First Reading of the Bill. The reports in the colonial papers which have come over here show that very considerable irritation sprang up in Newfoundland upon hearing that a Bill had been introduced into the Imperial Parliament; but I do not think we must assume that there is the same feeling throughout the colony. I have received telegrams, which I think are to be found in the papers, from Mr. Howley, a Roman Catholic priest, who has as great an acquaintance with the views of the fishermen and the population on the West Coast as any one, and he states that he, and those with whom he had communicated, were not opposed, as are the politicians in St. John's, Newfoundland, to the measures taken by Her Majesty's Government. I may also point out, as showing that there is a divergence of opinion in different parts of the colony, that the fishermen on the West Coast have taken it into their own hands to resist the working of the Bait Act, and have determined to carry and sell bait to the French. I am not to be assumed. as in any way upholding the action of the fishermen. I do not defend their committing a breach of the law of the land, but 1411 I merely refer in passing to their proceedings as showing that opinion is not all one way in the colony; and we have a right in dealing with this subject to consider not only the feeling at St. John's, but also the feeling, such as we can ascertain it, in other parts of the colony. The attack upon the Government has, I may say, proceeded on two lines. There has been, in the first place, an attack upon the Bill and against the terms of it, and also upon Her Majesty's Government for introducing it; and, in the second place, there has been an attack upon the general policy of Her Majesty's Government in agreeing to arbitration on the lobster question, and possibly upon subsidiary questions, and in renewing the modus vivendi for 1891. Now, as regards the Bill, I have little to add to what I have already said. It has been called coercive and arbitrary, and regarded as interfering with the independence of the Colonial Legislature. I think I have shown that those vituperative epithets are misplaced as regards this Bill; that the policy of the Government is not of a colonial, but an Imperial character, though of course affecting rights along the coast of Newfoundland, and that the independence of the Colonial Legislature is not only secured, but almost prayed for by the 2nd section of the Bill. Sir W. White-way, in the speech which he delivered at the Bar, said—It is, indeed, provided that the Legislature of the colony may enact legislation to take the place of the present Bill; but this Bill is not to be suspended until the Local Legislature confers upon Her Majesty in Council the precise powers she would have under this Bill, and this provision is, therefore, but an illusory concession, meaning only that the burden of an Act of this Parliament can only be removed by enacting a similar Act in the Colonial Legislature.That the Colonial Legislature should pass a similar Act in all respects is not required. There may be other means of attaining the end in view. If your Lordships turn to the 2nd section of this Bill you will find the words are, " until sufficient provision is made." Therefore, legislative provision may be made which is different to the Imperial Act, providing of course that it is sufficient to secure the desired object. For instance, some special Courts might be established by the Colonial Legisla- 1412 ture, and if it is found possible to vest in such Courts or in the existing Courts powers which were supposed to be vested in the naval officers, that might be a provision which would be accepted. It is not required by the Bill that the terms of the Colonial Act should be identical with those of the Act of the Imperial Parliament; but, as I shall have occasion to point out, the question of the Courts would require some consideration. Then it is alleged that the colonists have been taken by surprise. Certainly the Colonial Government cannot be said to have been taken by surprise, because more than once in the discussions here last year I pointed out to Sir W. Whiteway and his colleague, Mr. Harvey, that if the colony would not legislate, Imperial legislation would be absolutely necessary. I am quite satisfied they will agree with me that that was brought under their notice more than once. Nor could our action, I think, be taken as a surprise to any colonist who had really studied the question, and who recognised the force of international obligations, and that we are bound to perform them on our part. After the doubts as to the powers of the naval officers, had been raised, and after the Colonial Government had refused to legislate for the modus vivendi, it must have been realised by any one who had considered the question that Imperial legislation, sooner or later, would be resorted to. I must also remark in passing that expressions of surprise on the part of the colony had never been tempered with any statement of willingness to legislate until,this Bill had been actually introduced. Her Majesty's Government knew that the Colonial Government would not legislate as to the modus vivendi—that they had absolutely refused to do. Neither had we had any hope held out to us that the Colonial Government would legislate in respect of the Treaties; and practically there was a refusal to legislate in respect of the arbitration, and to give effect to the decision of the arbitrators, as the colonists declined to be bound by it. That was shown distinctly by the telegram dated March 9, page 34 of the Clue Book, which. I have already read to your Lordships, in which we are told that the colony cannot be bound by the decision of any arbitration to which it has not given its adhesion.
1413 And there was a later reference in another telegram of March 24, page 39, in which the Governor informs me—My Government deeply regret that they are compelled by the action of Her Majesty's Government to adopt the only course which seems open to them, viz., that of declining to take part in or to be bound by an agreement to which they are not parties.I think, therefore, we were justified in assuming that the Colonial Government would not legislate in respect of this arbitration. I think that affords an answer to Sir W. Whiteway's point that Imperial legislation should not have been resorted to until the Colonial Legislature had declined to act. There can be no doubt of their having declined to act up to the time of the introduction of the Bill. As I have said, the Colonial Ministers were aware of the intention of Her Majesty's Government if it was necessary to resort to Imperial legislation, and yet they have persistently declined to introduce the measures which were necessary. And here I would refer in passing to the complaint which has been made, that information as to the Bill and the terms of the Bill was kept back from the colony. That was not the case, at all events as regards the terms of the Bill. It is true that by the 19th of January we had decided to introduce some measure, but the form of the Bill was not settled then, nor indeed were the terms decided upon until the First Reading on March 19, and the Governor of Newfoundland was simply informed of our intention of introducing some measure. That Despatch it is true was not communicated to the Colonial Government. Rightly or wrongly it was not thought desirable that the Despatch and enclosures containing a résumé of the position and views of Her Majesty's Government upon the whole question should be published in the colony while negotiations with the French Government were proceeding, but, as I have already pointed out, the colonists were not deprived by that delay of due notice of the terms of the Bill—for the best of all possible reasons, that those terms had not been decided upon, nor indeed were they finally settled until the Bill was introduced. Therefore, as to the terms of the proposed Bill not having been mentioned, the objection raised by Sir 1414 W. Whiteway loses its force. I will frankly add that I am not disposed to agree with Sir W. Whiteway when he said that—If this Bill had before its introduction been submitted to the Government and Legislature of the colony, with an intimation of the British Government's intention to procure its enactment, such arrangements might have been made as would have prevented the present unpleasant conditions of affairs.The introduction of the Bill at an early date was necessary because of the approach of the fishing season, and I do not think, upon full consideration, it would have been proper, even if the terms of the Bill had been settled some time before its introduction, that they should have been sent out and published in the colony, and perhaps, even discussed in the Colonial Assembly, before the Bill had been introduced in your Lordships' House and laid before the Imperial Parliament. So far, my Lords, for the attack upon the Bill. I shall, however, have occasion to refer to some of the objections which have been made by the delegates to it and answer them. Then, as to the attack on the general policy of Her Majesty's Government, I must observe that even if we were as wrong as I believe we were right in referring the lobster question to arbitration and in continuing the modus vivendi for the season of 1891; still, it would have been necessary for us to introduce the Bill because of the doubts that had been raised with reference to the action of the naval officers, and upon the broad ground that in the absence of colonial legislation we are bound to take power to this country to secure the observance of the Treaties. The decision of the Supreme Court negatives the power of the naval officers not only with reference to the modus vivendi, but with reference to their powers along the coast altogether, including their powers to secure the observance of the Treaties. This Bill is, then, in any case, necessary, whether our policy has been wise or unwise, unless we are prepared to ignore or deny our international obligations, or unless the colony will legislate. It is argued that the Colonial Government always opposed arbitration limited to the lobster question, but were ready to assent to a general arbitration upon all questions arising under the Treaties. To this I reply, in the first place, that it 1415 is true that they objected to the limited arbitration upon the lobster question, but, as I pointed out to your Lordships on a former occasion, their objections -were based on untenable grounds. They contended that our right to catch lobsters and to erect factories was so clear, and that the French claims were so clearly wrong, that there was nothing to refer to arbitration, and that our rights must be enforced. I confess I was astonished to find that this view was upheld by a gentleman who so long and so ably represented the Foreign Office in the House of Commons; for what must be the result if effect be given to that view? If the French maintained their claims collision and war must result from our enforcing our rights and resisting their claims by arms; and it is certain that the country would not support any Government in going to war upon such a question unless that Government had first exhausted all possible means of obtaining a peaceful settlement. As to the readiness of the Colonial Government to assent to a general arbitration, I think I have already shown beyond doubt that no unconditional offer has ever been made—that every offer to agree to a general arbitration has always been coupled with some proposal which the French would not accept. I may add that we have no reason to suppose at the present moment that the French Government would assent to a larger arbitration than that agreed to. Then, my Lords, the objection has been urged in the speech at the Bar that the policy of Her Majesty's Government violates the principle laid down by Mr. Labouchere in his Despatch of March 26, 1857. Now, assuming for the sake of argument that all successive Governments arc bound for ever by the assurances given by Mr. Labouchere, however much the condition of affairs may vary from that which existed when those assurances were given, or however great an emergency may arise, yet I confidently submit that Her Majesty's Government did not offend against the principle so laid down, either in agreeing to a modus vivendi or in agreeing to arbitration. As to the modus vivendi, I cannot do better than read the answer given in my Despatch to the Governor of June 24, 1890—it is on page 7 of the Parliamentary Paper [C. 6256]— 1416This act on the part of Her Majesty's Government does not appear to them to have involved any departure from the principles laid down in the Despatch from the Secretary of State of the 26th of March, 1857, referred to by the Petitioners, of which the following is the actual wording—namely, that the rights enjoyed by the community in Newfoundland are not to be ceded or exchanged without their consent, and that the constitutional mode of submitting measures for that consent is by laying them before the Colonial Legislature; and that the consent of the community of Newfoundland is regarded by Her Majesty's Government as the essential preliminary to any modification of their territorial and maritime rights.' The modus vivendi does not cede or exchange any right enjoyed by the inhabitants of Newfoundland. N either does it involve any modification of their territorial or maritime rights. Any right which British subjects have to erect lobster factories... although its exercise may be temporarily suspended, is not surrendered or prejudiced by the modes vivendi.That appears to me, with deference, to be a complete answer to any charge that the modus vivendi was an infringement of the assurances given by Mr. Labouchere. As to the arbitration on the lobster question, it must be admitted, I think, that when a question of rights is in dispute it is not in any way a cession of those rights to endeavour to have the extent of the rights clearly defined. If without going to arbitration we had yielded all or any of the indefinite claims set up by the French, or if after the rights were defined we conceded any of those defined rights without the consent of the Colonial Government, I admit that we should be open to the charge of not having adhered to the principle laid down, or the assurances given, by Mr. Labouchere; but to endeavour to put an end to grave and complicated questions by obtaining an authoritative decision as to the extent of these rights surely cannot be held in any way to be an infringement of those assurances. And while I am upon this point, I should desire, with your Lordships' indulgence, to deal--and it will be convenient that I should do so now—with one of the further objections raised by Sir W. Whiteway against the Bill, namely, that this Bill is in direct opposition to Mr. Labouchere's assurances, because it empowers the Imperial Government to make permanent arrangements involving a cession of rights. There has been, I think, some misapprehension on this point. There is no departure whatever in this Bill in-that respect. The Bill gives no addi 1417 tional powers to the Government which they do not now possess, to make permanent arrangements. if the Government for the time being were to decide to act without regard to the assurances given by Mr. Labouchere, that is to say if they decided to act without the consent of the colony or against its wishes, they could do so now, subject, of course, to their action being impugned, and to the possibility of their being defeated in Parliament. It is not very probable that a Government, except under some very grave pressure, would desire so to act in the face of those assurances which have remained in force so long. Cut at the present moment all I wish to point out is, that the Imperial Government could now, under their treaty-making powers, make such a permanent arrangement, and that there is no further or special power given to them by this Bill. Nor, I would venture to point out, does the Bill take away any power of protest or appeal against such arrangements. That is one of the objections raised by Sir W. Whiteway. There is not at the present moment any absolute power of rejection secured to the colony, indeed, such an absolute power of rejection would amount to something very like entire independence. But the effective means of protest, which the history- of the colony shows have been very effectively exercised on several occasions, are not touched by this Bill. The colonists can still appeal in Parliament against any permanent arrangement, or any Order in Council, and take exactly the same steps that they could take before this Bill was brought into your Lordships' House. I think that before dealing with the proposals of the delegates, which were submitted by Sir William Whiteway at the Bar of the House, I have only one other observation to make with reference to that part of his speech which is contained under the second and third, but mainly under the fourth head of objections. I desire to protest most strongly against the attack made against the naval officers in those objections. For years past Her Majesty's officers have been charged with the duty of seeing that the Treaty rights are not infringed by either the French or the British fishermen, and that the rights of both countries are impartially secured. The statement made here 1418 at the Bar practically charges the naval officers with ignoring British rights, and only enforcing the rights which the French claim. Nothing can be more unjust than these attacks upon officers who have for years past been performing very difficult duties—duties which have become more difficult every year—with great tact, forbearance, and judgment. It may well be that in some cases officers, during those years, may have exceeded their instructions, but I can safely assert that in many of the cases where complaints have been made and have been examined into, the charges have been proved to be either ill-founded or grossly exaggerated. If these charges are to be continued against Her Majesty's officers, it is only just and fair to them that the charges should be brought to the notice of the Government and the Admiralty without delay, after the acts of which complaint is made have been done, and that dates and full particulars should be given so that the facts may be, as they certainly would be, fully tested. With reference to the concluding paragraph of Sir W. Whiteway's speech under the fourth head of objection, I would observe that this Bill again does not interfere in the slightest degree with the jurisdiction, or any part of the work, of the Colonial Courts. That paragraph states—We therefore most earnestly urge that Her Majesty's ordinary Courts of Justice in Newfoundland are the tribunals which should adjudicate upon questions arising between British and French fishermen. From any judgments in such Courts a final appeal would lie to Her Majesty and the Privy Council. In no case should naval officers be permitted to try causes arising as aforesaid, since Courts of Justice already exist in the colony for the purpose; and if it be deemed impossible for the ordinary Courts to enforce the law in such a manner as to adequately assure justice to the French, then we ask that special Courts should as they could, of course, be established.The jurisdiction of the Colonial Courts is' not in the least interfered with by the Bill; and I apprehend, speaking subject to the correction of noble and learned Lords present, that the view stated by Sir W. White way in the first part of the passage that I have read,That Her Majesty's ordinary Courts of justice in Newfoundland are the tribunals which should adjudicate upon questions arising between British and French fishermenis correct. I apprehend that the Courts can do so now, and that if the question as 1419 to the construction of a Treaty were to arise before the Court in the course of such proceeding it would be decided in the ordinary way by the Court subject to appeal to the Privy Council. That decision no doubt would bind persons residing in the colony and within the colonial jurisdiction, and if a foreign Power, affected by that decision, were to dissent from it I presume that the mode of proceeding would be by diplomatic representations, and that the foreign Power would communicate with the Government of this country and protest against the construction put upon the Treaty by the Court. I therefore am not prepared in any way to dissent from what is stated by Sir W. Whiteway in that paragraph. As to the possibility or practicability of erecting special Courts, by which I suppose is meant Courts with French, Colonial, and English Judges, whose decisions are by agreement to be binding upon all the Governments, I am not prepared at present to offer an opinion, but as far as the statement in the speech goes, I see no reason to dissent from it. I am afraid I have taken up a great deal of time this evening, but I think it only fair to Her Majesty's Government to state the case fully and to state the reasons why we introduced this Bill, and why we have assented to arbitration. Now, I will turn to the proposals which were brought forward by Sir W. Whiteway on behalf of the colony. Though those proposals, it is true, have not yet been accepted, Her Majesty's Government have considered them with an earnest desire to find a friendly solution. It is not quite clear whether the first and second proposals are to be taken as a whole, or whether they may be dealt with independently; nor, again, is it quite clear whether the sub-heads of each proposal are to be taken as a whole, or again dealt with independently of each other. The first sub-head of the first proposal is—First—(a) the Newfoundland Legislature to pass immediately an Act authorising the execution for this year of the modes vivendi, the award of the Arbitration Commission regarding the lobster question, and the Treaties and declarations under instructions from Her Majesty in Council.The second sub-head is this—(b) The further progress of the Bill now before Parliament to be deferred until the 1420 passing of the above Act, and the Bill then to be withdrawn.Assuming, as I do, that the proposals may be taken independently, I may state on behalf of Her Majesty's Government that, looking to the very close approach of the fishing season, and to the terms of the engagements which we have made with France, we think it necessary that the Bill should pass through this House, with such amendments and alterations as may be made in Committee; but we are willing to agree that the Second Reading shall not be taken in the House of Commons until after the Whitsuntide Holidays are over. That would bring us, I believe, to about the 21st May. If by that time the Colonial Legislature has passed an Act which, in the opinion of Her Majesty's Government, sufficiently secures the observance and execution—first, of the modus vivendi for 1891; secondly, of the decision of the arbitrators upon the lobster questions; and, thirdly, of the Treaties and declarations, Her Majesty's Government will not go forward with this Bill. If such an Act, however, has not by that time been passed by the Colonial Legislature, it will become necessary to press this Bill rapidly forward for the reason I have already stated--namely, the close approach of the fishing season. I think, my Lords, it will be seen that this practically amounts to an acceptance of the substance of the first sub-heads of the first proposal made by the delegates, and I hope that our proposals will:be accepted as satisfactory. We are also willing to consider the third sub-head of the first proposal, which runs as follows:—(c) The terms of an Act to empower Courts and provide for regulations to enforce the Treaties and declarations to be discussed and arranged with the delegates now in this city as rapidly as possible, and to he enacted by the Legislature of the colony as soon as agreed upon.We are quite ready to consider with the delegates the terms of a Bill such as is referred to in that sub-head (c), but it must be manifest to your Lordships that there are difficulties of an international character which would require full discussion and careful handling; and it should be understood, therefore, that the passing of the Colonial Act should not be delayed until the terms of the proposed Bill are settled. The second proposal of the 1421 delegates is as follows. This is the first sub-head—Secondly—(a) the present arbitration agreement not to be allowed to operate further than the lobster question without the prior consent of the colony, and in this case the colony to be represented upon the Commission.And the second sub-head is—(b) The colony desires an agreement for an unconditional arbitration on all points that either party can raise under the Treaties and declarations; and, if this be arranged between Great Britain and France, Newfoundland will ask to be represented upon such arbitration, and will pass an Act to carry out the award,With regard to this second proposal, Her Majesty's Government require further time for consideration. We do not feel any difficulty as to the colony being represented on the Commission, and, as will be seen by the Papers which have been presented to Parliament, we have requested the Colonial Government to name a delegate to act upon the present arbitration as to the lobster questions, a request which, I regret, has not been accepted. We are not, however, prepared to assent to the first sub-head, that is to say that—The present arbitration agreement is not to be allowed to operate further than the lobster question without the prior consent of the colony,although the colonists may rest assured further that we should not agree to refer subsidiary points to the arbitrators until after full consultation with the colony, and after clearly ascertaining the views of the Colonial Government and Legislature. It is clear also, as regards the second subhead, namely, that " the colony desires an agreement for an unconditional arbitration," that we cannot compel the French Government to agree to an unconditional arbitration of the kind referred to, nor as I said before, so far as I am aware, is there at present any probability of their assenting to any such unconditional and general arbitration. Every consideration will be paid to the wishes of the colony, but if this general arbitration is to be made a sine qua non to the acceptance of the first proposal, Her Majesty's Government, as at present advised, have no alternative but to carry through this Bill. In conclusion, I would say that Her Majesty's Government earnestly trust that this may not be necessary, and they confidently 1422 believe that, after what has been said this evening, credit will be given to them for endeavouring as far as they can, consistently with our international obligations, to meet the wishes of the Colonial Government and Legislature. I thank your Lordships for having so patiently listened to me, and I now beg to move the Second Reading of the Bill.
§ Moved,;" That the Bill be now read 2a." —(The Lord Knutsford.)
THE EARL or KIMBERLEY
My Lords, it seems to me that three questions are raised for consideration, and it will be convenient to take them separately. The first is whether any legislation at all is necessary; the second is whether this Bill is proper legislation on the question; and the third is, the consideration of the proposals of the colonial delegates to which the noble Lord has referred. Now, as to the necessity for legislation, I adhere entirely to what I said on the occasion of the introduction of the Bill by the noble Lord, that it seems to me he made out a distinct case for legislation of some kind, and if that legislation is re fused by the colony, then I think that the legislation must be passed by the Imperial Parliament. There are two obvious reasons why it is impossible to avoid such legislation; first and principally, as the noble Lord has pointed out, because it has been discovered that, in fact, there exists at the present time no lawful mode of enforcing our Treaty obligations in Newfoundland, and it is quite obvious that the accident that an Act which gave the necessary power was allowed to lapse so that we find ourselves unable to enforce those Treaty obligations at the present time by any legal means, cannot in any way relieve us from our duty to the other party to the Treaty, and that we are absolutely called upon by good faith and in the interests of this country, and of the Empire generally, to see that there is lodged in the hands of Government — I mean either the Colonial Government or the Government of this country—power to enforce our Treaty engagements, be they what they may, Then there is a further question which has also rendered some legislation necessary, namely, the enforcement of what is termed the modus vivendi. The modus vivendi, as has been explained to 1423 the House, is a means of dealing temporarily with the question of the lobster fishery, and it is quite obvious that during the negotiations with France it is plainly necessary that there should be what I may call a truce between the parties until the respective rights are ascertained. That is the object of the modus vivendi, and that does not in any way infringe upon the assurances given by Mr. Labouchere to the colony, because this modus vivendi is not for the purpose, as I understand it, of making a new Treaty engagement, but is for the purpose of ascertaining what is the specific meaning of the Treaty engagements now subsisting. Therefore, as regards the modus vivendi it is quite clear there must be legislation of some kind, and as regards our general engagements and Treaty obligations there must be some legislation. I need say no more upon that point, because the noble Lord has elaborated it rather fully. I now come to the more important question, namely, as to this Bill itself, and the mode in which it has been introduced. I am quite certain that Her Majesty's Government and every one in this House will agree that when it is necessary to introduce legislation of this kind all possible means should be exhausted in order to do so in a manner which will be least likely to offend the susceptibilities of the colonists with whom we have to deal, and I am very glad that to a considerable extent, I must agree, that course has been pursued by Her Majesty's Government. They saw the delegates last year, and communicated and negotiated with them at great length; they also negotiated repeatedly with the Colonial Government, and asked them whether they would be prepared to enforce the modus vivendi; but the Colonial Government, I think it was on December the 9th, undoubtedly refused to legislate for the purpose. So far, my Lords, I have no fault to find with Her Majesty's Government, but upon one point their proceedings were somewhat unfortunate, and I do not think the noble Lord upon that point quite successfully defended himself—I mean as to their not communicating to the Newfoundland Government, and through the Newfoundland Government to the Newfoundland Legislature, the intention of Her Ma- 1424 jesty's Government—if there were not any legislation passed by the Colonial Legislature to legislate by the Imperial Parliament. Such a step as that, being of the most grave nature, and being one which directly dealt with the privileges and the status of the colony as regards this matter should, whatever might be the expectation as to the answer the colony would give, have been at the earliest possible period communicated to the Newfoundland Government, and through them to the Newfoundland Legislature. I am rather surprised that Her Majesty's Government had not made up their minds somewhat sooner, seeing how long this matter had been under consideration; but when they did make up their minds not a moment should have been lost in communicating with the Newfoundland Government; and if your Lordships will refer to the latest Papers which have been presented to Parliament you will see it is very singular that several communications were made to the Newfoundland Government with reference to this particular arbitration, and yet not a word was said in them until a late period as to any legislation. On the 23rd January, 1891, a telegram was sent by the noble Lord to the Government of Newfoundland, in which he informed them—Her Majesty's Government feel compelled to maintain the position they have taken up, both as regards commencing negotiations with France for arbitration, and as to deferring the ratification of the draft convention with the United States.Possibly at the time Her Majesty's Government had not made up their mind as to the legislation here. But let us look on a little later. The Government of Newfoundland on the 9th March repeated—That they can assent to no reference of any one particular point arising under the Fisheries Clauses of the Treaties of Utrecht, Paris, and Versailles.And then they also said they—" Cannot agree to have any legal representative before any such partial arbitration, and they protest against any such restricted reference.That was on the 9th of March. In answer to that the noble Lord the Secretary of State for the Colonies telegraphed on the 12th of March to Newfoundland— 1425Agreement for arbitration signed yesterday. Further full information will be sent as soon as possible.I cannot understand why at the same time the Newfoundland Government was not informed that in order to carry into effect that arbitration it was necessary to introduce a Bill into Parliament; because your Lordships will observe that it is actually contemplated by the Agreement or arbitration itself. In the Notes which were exchanged between the noble Marquess opposite and the French Ambassador it is stated that the French Government on the one hand reserve the consent of their Legislature, and that the Government of this country reserve the assent of Parliament. Therefore, it is quite clear that at that time, when the Arbitration Agreement was signed Her Majesty's Government contemplated that they would have to apply to Parliament for powers. I cannot understand therefore, why they did not immediately inform the Legislature of Newfoundland of the fact. I find further on, which is even more remarkable, that on the 16th of March, when an elaborate telegram is sent to the Newfoundland Government giving the full text of the Agreement for arbitration, signed on the 11th of March, not a word is said as to the intention of the Government to introduce a Bill for carrying into effect and enforcing the Treaties. I think it was unfortunate, the colony being extremely sensitive (and it is not to be wondered at that they should be extremely sensitive on a point of this kind), that this should have been overlooked, and that the colony was not informed at the earliest possible moment, and in the fullest possible manner that the circumstances admitted, that the Bill would be introduced. The noble Lord opposite has said that Her Majesty's Government had not agreed upon the actual terms of the Bill, but they might have informed the Newfoundland Government that a Bill would be introduced, and that its terms would be communicated to them as soon as possible. I cannot say that I attach much importance to the objections of the noble Lord that it would have been wrong that the provisions of that Bill should have been submitted to the Newfoundland Government, and discussed in the colony before it had come before Parliament; on the 1426 contrary, that is the very thing which they ought to have been told, because it might very well have happened that in discussing the matter a way out of the difficulty would have been suggested, but by the course which has been followed the Government here have laid themselves open to this assertion of the delegates that if this Bill had, before its introduction in Parliament, been submitted to the Government and Legislature of the Colony, with an intimation of their intention to secure its enactment by Parliament, such results might have been. arrived at as would have prevented the present unpleasant condition of affairs_ No one can tell now, of course, whether that would have been the case or not, but, no one can say that it might not have been so, and, considering the proposals which the delegates have now made, I think that it is by no means impossible that that result might have been arrived at; and, if that result had been arrived at, then all this friction with the colony, and this very disagreeable necessity of applying to Parliament might have been avoided. So much for the mode in which the Bill has been introduced. I come now to the Bill itself, and here I must say there are, I think, various parts of the clauses of this Bill to which very serious objection may be taken. As regards the first part of it, I take no exception. I take no exception to the first, clause, which says that—The enactments set out in the Schedule to, this Act shall be revised and have full effect, and the Treaty or Treaties therein named shall include not only the Newfoundland fishery engagements, but also any temporary arrangement made in France either before or after the passing of this Act.An objection may perhaps be taken to it as retroactive with regard to its application before the passing of the Act. I think there is some question upon that, but as regards the modus vivendi which would be rendered operative by this 1st clause, and as regards the Treaties generally, I have no objection to make. That does not apply to the particular enactments which are revived, but to the principle of legislating to enforce the modus vivendi and the Treaties. Cut when I came to the 2nd sub-section of the 1st clause of the Bill I was extremely astonished when I read it. I must ask your Lordships to allow me to read the words of that sub-section, 1427 because it is very important to see exactly what it is the words carry with them—If any permanent arrangement is made between the United Kingdom and France with respect to the differences which have arisen upon the Newfoundland fishery engagements, it shall be lawful for Her Majesty by Order in Council to direct that the enactments hereby revived shall apply, and the same shall apply accordingly, as if such permanent arrangement were a Treaty mentioned in the said enactments.Now, it appears to me this gives by anticipation power to the Crown to enforce any Treaty which the Crown may make for modifying the Treaties now subsisting between us and France with regard to the Newfoundland Fisheries without any further application to Parliament—a power to enforce any new Treaty that may be made. With regard to that there seem to me to be two vital objections—the first, a very special objection, that it goes directly in the teeth of the engagement made by Mr. Labouchere with the Colonial Government, because the engagement which was made by Mr. Labouchere with the colony was that the consent of the community of Newfoundland is regarded by Her Majesty's Government as the essential preliminary to any modification of their territorial or maritime right. Now, the original proposal laid before this House by the noble Lord the Secretary of State for the Colonies, as I understood it, was no violation of the assurance given by Mr. Labouchere, for the simple reason that the arbitration was not for the purpose of making a new Treaty, but only to ascertain what the meaning of the existing Treaty is. I find that the noble Marquess, in reply to the observations I made to the House, laid this down with great distinctness. He said—All we desire to do is not to modify or alter the status of the colony in any degree, but really to ascertain what that status is before a tribunal of International Law.Nothing can be clearer than that statement. But this clause enables the Government to make any new permanent arrangements they please, and that, as I have said, would be in the teeth of the assurances given to the Newfoundland Government by Mr. Labouchere. But I go further and say that it seems to set aside Parliament in a manner most unusual, and which seems 1428 to me entirely unprecedented, because, as I understand the course that has always been taken in this country with regard to the Treaties with foreign States—the universal practice has been this: The Crown has complete power to conclude Treaties with any foreign States, and if the provisions of those Treaties can be enforced in this country without further legislation nothing further need be done. The consent of Parliament is not necessary to the Treaties, but if there be anything in the Treaties which cannot be enforced in this country under the existing law of the country, then it is necessary to go to Parliament and to obtain the consent of Parliament to the passing of that legislation, and unless Parliament consents, the Treaty falls to the ground. There are numerous instances in which this has occurred, but if this Bill were to pass, Her Majesty's Government would have the power to conclude a new Treaty with France as to the fisheries of Newfoundland, entirely altering the maritime and territorial rights of the colony, and. inasmuch as such a permanent arrangement would apply as if it were a Treaty mentioned in the enactments set out in the Schedule to the Bill, full power would exist to enforce any such new Treaty without any further application to Parliament. It seems to me, therefore, that this is a clause which ought never to have been included in this Bill, and to which I sincerely trust Parliament will not be induced to agree. It is really not necessary for the Bill, because, if it should come to pass that Her Majesty's Government were able to conclude a satisfactory Treaty with France on this matter, the whole course would be simple enough, the consent of Parliament would readily be obtained and the Treaty would then come into force. Again, I have a further criticism to make upon Subsection 3. Possibly that might establish a precedent of the advisability of which I am not at all sure. There is a provision in Sub-section 3 of Clause 1—Provided that before such Order is made the draft thereof shall have been communicated to the Government of Newfoundland, and lain on the Table of both Houses of the Imperial Parliament for not less than one month.That also is open to considerable objection, and for this reason, that if I am 1429 right in my contention that a new permanent arrangement can be made under Sub-section 2, then it would seem that instead of the assent of Parliament being asked for in the regular way, and the whole matter being submitted to Parliament, an Order in Council for this purpose is to be laid on the Table of both Houses of Parliament for a month, and that Parliament does not address the Queen against the Order, then I conclude the intention is that it shall take effect. It is not stated here that the Order shall fall to the ground if Parliament does address the Crown in either House within that time; but, practically, I suppose, that would put an end to the Order. Otherwise the assent of Parliament is obtained. Surely that is not the way in which we have dealt or ought to deal with important Treaties of this kind. It has not been the custom that instead of the Crown having to come to Parliament for the necessary power to carry Treaties into effect, draft Orders for that purpose should be merely on the Table of both Houses of Parliament, just as some Order in regard to education. I do not think that is the proper way in which so solemn an instrument as a Treaty should be dealt with. Then with regard to the Newfoundland Legislature, I do not see that there is any provision at all, unless it is to be supposed that if the Newfoundland Legislature should address the Crown that would stop the Order. I do not think that is intended, and it seems to me, therefore, to be without any safeguard as regards the Newfound land Legislature. Those are the criticisms which I wish to make on the principal clauses of the Bill, but I desire to say something further, and I come now to one of the objections which have been made by the colonial delegates, and to which the noble Lord referred. I mean with regard to the jurisdiction exercised by the naval officers. I think the noble Lord was a little too severe on the delegates in saying that they had spoken disparagingly—I do not remember his exact phrase, but in a manner in regard to the naval officers which those naval officers did not deserve. I am quite sure that no body of men can have deserved better of this country or the colony than our naval officers. The discretion they have exercised in ad 1430 ministering these difficult questions under the Treaties has been great, and they have done their duty in a manner deserving all praise; but I do not understand the meaning of the objections of the delegates to be what the noble Lord appears to have understood them to mean! They do not object, as I understand-, on the ground that the naval officers have exercised their powers in any way that is blameable, but they protest against the nature of the jurisdiction of the naval officers. What they say is that naval officers act arbitrarily, which no doubt they do; that naval officers are not learned in the law, which no doubt they are not; and that the interests of the colony ought to be dealt with in regular Courts, and not by naval officers. And the noble Lord quite admitted that view. He said, and I was glad to hear him say so, it would be better that such matters as could be referred to the Courts should be referred to them. If I might throw out an opinion of my own on the matter, I should think that probably we might find that the proper solution would be that the naval officers should continue to enforce the Treaties as far as the territorial waters are concerned. I say this, not wishing at all to intrude into that very difficult department of law as to the precise jurisdiction exercised over territorial waters; but I do not think the Newfoundland Government could exercise that necessary control which must be exercised in the waters of the colony. The great length of its shore, the necessity for prompt action in these territorial waters, and the fact that the Newfoundland Government could not afford to keep the number of cruisers which would be necessary for enforcing the Act, and the possible fact that there might be a less friendly feeling between the commanders and crews of such cruisers and the French, than between the French and the commanders and crews of Her Majesty's vessels, are all reasons why the jurisdiction as regards the waters of the colony ought, I think, to be exercised under instructions from Her Majesty's Government by our naval officers. But I draw a great distinction as regards the jurisdiction on land. I cannot conceive that any one would say it is a proper mode of exercising juris- 1431 diction on land that it should be exercised by naval officers under instructions from the Government. The state of things in former times was, as the delegates put it, very different from their present state. Here is a coast 700 miles in length, used only for fishing purposes, and practically uninhabited, except during the fishing season. Under those circumstances, I quite understand that it was not found practicable to refer these matters to the Courts, and the only way in which it could be done was to refer them to the naval officers. But the state of things has altogether changed. This shore is now settled. There are markets there apart from the fisheries; there are minerals discovered, trade growing up, and altogether the circumstances are entirely changed from the condition of things when the Act of George IV. was passed. I should regard it as a great misfortune if we had now to enforce these Treaties in such a manner as are indicated by the Act of George IV. It seems to me to be of importance that the Treaty rights, be they what they may on land, should be enforced through the Courts. The noble Lord described most accurately what the course would be. He pointed out that an application would be made to the Court in the first instance, and that appeals would lie to the Privy Council if there were dissatisfaction with the decisions, and that, of course, the French Government would retain on its part all the power of remonstrating against the result if it had reason to think the Treaty had not been duly carried into effect. The International rights would be entirely untouched. I should a little doubt whether by special Courts the delegates mean Courts in which the French would take part. I should think not, but rather special Imperial Courts which would act independently of the ordinary Courts of the Colony. I am strongly of opinion —and I would press this upon your Lordships — that we should on this occasion establish some Court of competent jurisdiction which would deal with all these matters on land, and I am confident that would go a very long way towards removing the disagreeable feeling among the colonists of Newfoundland with regard to the enforcement of the Treaties upon their coast.
1432 The other points which the delegates alluded to it is not necessary that I should 'go into at any length. I will only touch briefly upon one or two of them. With regard to including the whole of these questions in one negotiation, I agree with the noble Lord that I do not think Her Majesty's Government could bind themselves absolutely that they would not negotiate on this subject in such manner as they might think advisable, and that they would not submit a particular question if it was found necessary to do so. The Crown having in its charge the foreign relations of the Empire, and being responsible for the execution of the Treaties must of course, in the last resort, exercise its discretion as to what may be the best mode of negotiating with a Foreign Power. Having said that, I think I am only expressing the view held by the noble Marquess himself, opposite, when I say that it would be far better if all these questions were submitted, and I say so for this reason that in the correspondence which has been presented to Parliament, the noble Marquess himself formulated a series of questions for submission to the arbitrators. The French Government declined to submit to more than one question, and I am not disposed to impugn the action of Her Majesty's Government when they found the French Government would not submit all these questions to arbitration, in agreeing to confine the arbitration at present to the question of lobster fisheries. At the same time, I sympathise with the colonists in their strong desire that the whole matter should be referred to arbitration. That is in the interest of all concerned. It is a matter of great and deep interest to this country that the whole matter should be determined, and when I say that the whole matter should be submitted to arbitration, I mean always the interpretation of the Treaty in the sense in which this Convention has been concluded. Indeed, it seems to me almost impossible to contend that if there is a difference of opinion with regard to the meaning of the Treaty this difference of opinion should be settled by arbitration on one point only, and not upon all. In principle, if it is right to go to arbitration upon one of the points, it must be equally right to go 1433 to arbitration upon all, and I still hope that under the Convention it will be found that the French Government, when the lobster question is decided, may agree that the rest of the questions may be submitted. But there seems to me to be a danger which I hope will be guarded against by Her Majesty's Government. I do not think it would be fair to the colony or to ourselves that this Convention should be hung up for an indefinite time. Every one will see that there are strong reasons why the questions at issue should be dealt with within a reasonable time. The object of all parties is to prevent collision, and to allay irritation. Nothing tends so much to increase irritation as to have something of this kind hanging over peoples heads which may be dealt with some day, but they do not know when. It is important, therefore, I think, that it should be dealt with as soon as possible. Then the colonists have one other point of objection—that is, as to St. Pierre and Miquelon. As to that I observe the noble Lord the Secretary of State for the Colonies, in a Letter which is printed in the correspondence, himself stated that he felt the force of the argument of the colony with reference to St. Pierre and Miquelon. The question as to St. Pierre and Miquelon are a very difficult and delicate part of the whole subject; but I must say that I agree with the noble Lord that the using St. Pierre and Miquelon to smuggle goods into the colony does seem to me to go considerably beyond anything which could have been anticipated in the Declaration by George III. Therefore, I do not think the contention of the colony unreasonable, that this is a question which might at the proper time be brought forward. My Lords, I have nothing more to say except as to the important question of the proposals of the delegates. I am extremely glad to hear from the noble Lord that Her Majesty's Government are prepared, under certain conditions, to accept those proposals. I confess, however, that I am sorry they appear to have made up their minds to press the Bill through this House. Unless the necessity is of so urgent a character that it is absolutely unavoidable on account of time—and I cannot conceive that to be the case—that the Bill 1434 should be pressed forward so urgently, it appears to me in the interest of our relations with the colony that it is extremely desirable we should fall in so far with the wishes of the delegates as not to proceed with the Bill until they have had a reasonable time within which to pass the necessary Acts. I am told they will pass them with great rapidity. I do not appear here, as your Lordships will have seen, as the representative of the colonists' view. By no means. I feel strongly for the colonists, but I am bound to say that from the very peremptory manner in which they have rejected one proposal after another, and on account of the very strong language which they have thought necessary to use towards Her Majesty's Government, it may almost be said that there has been a certain amount of provocation. But I do not think anything in regard to provocation ought to enter into our minds on this occasion at all. The question we have to deal with is not as to the past, but the present; and if, after all that has passed, the colony holds out the olive branch to us, and if we can see means by which we can smooth down angry feelings, is it not to the interest of both parties to take any means by which that object can be attained? Your Lordships will see this is a question which, although this colony is a small one, may have a very far-reaching effect. There are other colonies besides Newfoundland, and the relations between ourselves and the Colony of Newfoundland are being closely watched by all of them. If we do anything which may appear to indicate that we have put a pressure upon this colony over and above the absolute peremptory necessities of the case, I am afraid it may arouse an unpleasant feeling not in Newfoundland alone. We all feel that if the colonists in Newfoundland have been provoked, there is great excuse for them. I can hardly conceive a more unfavourable position than their colony is in with reference to this Treaty. Then there is this further consideration: that it is only to the interest of Newfoundland, but not of the whole Empire, that the carrying into effect this Treaty, by which we are bound to France, should be as far as possible smoothed and unaccompanied by dis- 1435 agreeable incidents to the colonists, for it is impossible for us to conceal from ourselves that we—and this affects us all throughout the Empire—run the risk during the fishing season of some collision or other which we should all deplore. If the colonists are in a friendly state of mind, it is clear the execution of the Treaty may be facilitated. For all these reasons it seems to me to the interest of Her Majesty's Government, and of all parties, that anything which can be done to smooth down these angry feelings should be done under present circumstances. With regard to these proposals, I do not speak, of course, with any authority in reference to them, but only my own opinion as to what seems to me to be their effect. As I understand them—I hope rightly, and I think as the noble Lord is disposed to understand them also—they are these: The first proposal is that they will immediately authorise the execution for this year of the modus vivendi of the Award, the Treaties, and Declarations. I understand that really, in one sense, to stand alone; they promise to do this at once, without any conditions, and that we are not to wait until we have agreed to arrangements as to the Courts. Under Subsection A they have expressed an assurance that they will proceed at once to pass legislation, and their passing legislation under Sub-section A is not to be delayed until you have agreed upon Sub-section C. It would take some time to see what these Courts should be, and, therefore, Subsection A must not be delayed, but must be acted upon at once. It is obviously so, because we have no powers at present to enforce the Treaties, and those powers we must have at once. My Lords, I have very little further to say. I have spoken as to the prior consent of the colony to arbitration upon one particular point being not indispensable, though it is most desirable to agree with them if possible. As regards the arbitration being on all the disputed questions, that is a condition which we have no power to enforce; but as we and the colony are both agreed that it is desirable, that cannot be one of the conditions which the colony make a sine qua non of their action. I will conclude 1436 by saying this: that I consider this a very fair and friendly offer as it stands. I am not concerned to look into how it comes about, and I think we should take the offer as it stands. We should endeavour to compose present differences between ourselves and the colony. I should have preferred greatly that Her Majesty's Government should have waited until the colony had had some short opportunity of passing legislation; and if that were done, I think we should find ourselves very happily out of a very difficult and dangerous position. With regard to the Bill itself, I have said what I have to say, and have explained my objections to the particular form in which it is drawn; but as I hope the Bill will never have to be carried into effect, my objections will not have to be pressed as they otherwise would.
THE EARL OF DUNRAVEN
My Lords, I should like to make a few remarks upon this Bill, because it appears to me to be a measure which may have very far-reaching consequences, and may have a result far larger and wider than those which merely apply to the colony most particularly interested. I am sure your Lordships, whatever views you may entertain about this Bill, will approach its consideration with a feeling of considerable reluctance; and feeling that it is a very hard necessity that is placed upon us that we should have to consider such legislation at all, affecting as it does the Government of a self-governing colony. But, my Lords, alongside of that we are face to face with the absolute paramount duty of this country to carry out its Treaty obligations—it is perfectly true that in this case nobody knows exactly what those Treaty obligations are. But in the meantime an arrangement of a temporary character has been concluded with France, and one thing is perfectly certain, and no one in this House will dispute it, that it is absolutely necessary legal means should be provided for carrying out that arrangement. I hold there can be no doubt whatever that if a self-governing colony, by the use of legislating powers devolving upon it, does not provide necessary legislation in a question of this kind, the duty of providing it reverts in that case to the Imperial Parliament. As regards the Bill itself, there are one or two matters 1437 I should like to point out. The principal object of the Bill I take to be to legalise the method whereby the modus vivendi with France may be carried out. I have some doubts whether the modus vivendi with France can be carried out any more easily, or any more legally, by Her Majesty's naval officers after this Bill is passed—if it is passed—than before. The modus vivendi, as your Lordships know, is an arrangement of a temporary character as regards the lobster industry. It makes arrangements that factories shall not be put up except under certain circumstances, and that where disputes arise the naval officers of France and England respectively can decide upon them. As your Lordships are aware, matters were brought, as I may say, to a head not very long ago when a lobster factory, the property of a British subject, was removed by order of one of Her Majesty's officers. An action was brought by the owner of the lobster factory for damages, and judgment was given in his favour, and the object of the present Bill, or its principal object, is to legalise such action on the part of the naval officers should it become necessary to do similar acts again. I think that is a fair statement of the case. What the Bill proposes to do is to reenact certain sections of the Act of 1824, and I would ask your Lordships to look particularly at Section 12, which we are to re-enact. Your Lordships will see that the Queen can, by Order in Council, give such instructions as are necessary for carrying out the modus vivendi to the naval officers, and the naval officers, acting upon those instructions, can do certain things which are specified in this section. That is to say, they can remove certain works from the shore—They can remove, or cause to be removed, any stages, flakes, train fats, or other works whatsoever.So far, so good. " Other works whatsoever " is a very comprehensive term, and would certainly include the case of a lobster factory. Naval officers are given every conceivable power they may require. But if your Lordships look at the language following those words and governing them, it appears that the powers are not so ample as might be supposed; for it goes on to say those works are to be—Works erected by Her Majesty's subjects for the purpose of carrying on the fishery.1438 I ask your Lordships' attention to those words because, as I read this section, the only power given to the naval officers would be to remove any " works " erected on the shore for the purpose of the fishery. What is the fishery? My Lords, that is the very matter in dispute. That is the very question about which we are going to arbitrate. We have got to find out whether lobsters are fish, and whether the lobster industry is a portion of the fisheries of Newfoundland. We have made a modus vivendi to enable us to get along amicably until this question whether the lobster industry is a fishery or not is decided, and in the meantime the modus vivendi would be of no use, and cannot be made operative by this section until it has been decided by arbitration whether the lobster industry is part of the fishery. It seems to me we shall be in exactly the same position after this Bill becomes law as before. What would happen would be this: A naval officer might find it necessary to order the removal of a lobster factory, or to pull it down; the owner objects. What is the authority of the naval officer? He derives his authority from this section. " No," says the owner of the factory. "You can only remove works erected for the purpose of the fisheries' and lobsters have nothing to do with the fisheries; " and in the contention of Newfoundland, and in the contention of the present Government of this country, and of all previous Governments, the lobster industry has nothing to do with the fisheries. It is perfectly clear, in those circumstances, that the owner of the factory would be in a position to bring an action against the naval officer, and would be entitled to recover damages precisely as Mr. Beard recovered damages against Sir Baldwin Walker. That is the light in which that section presents itself to me. I am a mere layman, and I should be glad to have the opinion of the legal authorities in this House upon it, because it seems tome, if I am right, or if there is any chance that I am right, if there is the remotest doubt about it, then, in passing legislation of this kind, we should be taking a course obnoxious to the colony and very repugnant to ourselves on that account; and our position would not be 1439 one atom improved. That is one objection, I say, to the Bill. I object also to it for the reason which the noble Earl opposite mentioned—the application of this enactment to any permanent arrangement that may be made. It appears perfectly plain by that that the Crown is given power by an Order in Council to carry out and enforce any permanent arrangement that any Government may make of any kind without the sanction and approval of the Colonial Parliament, and without the sanction of Parliament here. It is perfectly true that the draft of the Order in Council is to be communicated to the Colonial Government. It does not say it is to be communicated to the Colonial Legislature, but only to the Government. It does not state that it is to be communicated to them at any particular length of time before the Order in Council is made. It is perfectly possible that the draft might be communicated to the Newfoundland Government on the Monday, and the Order in Council made on the Tuesday following. I am not speaking of what is probable-4 am only speaking of what is possible; and I hold that in contemplating legislation of this kind, we are bound to consider it in every possible light, and from every possible point of view, and we are bound to consider what, under any possible state of circumstances, may happen. It is perfectly certain that, under Subsection 2 of this Bill, any future Government may make and carry out any kind -of permanent arrangement whatever without the consent or dissent, or even the knowledge of the Colonial Legislature, because all it has to do, all it is bound to do by one Provision in this Bill, is to communicate the draft of the Order in Council to the Government in Newfoundland. I agree also with the noble Earl opposite, that the course adopted is a very unusual one as regards Parliament here. The draft of the Order is to be laid on the table of both Houses for one month. It does not say that the terms of the agreement are to,be communicated to Parliament. All that is to be done is that the draft of the Order, which will make the permanent -arrangement operative, is to be laid on the Table of both Houses for that period. Doubtless, as a matter of fact, it is impossible to suppose that any Government, 1440 or any Minister, would refuse to communicate the terms of such an arrangement to Parliament, but still, as a matter of theory, there is no question whatever, I think, that according to this Bill the Crown is given power to make any arrangement of any kind, any permanent settlement whatever with reference to this subject, and is given the power to carry it out without the sanction of Parliament. That is the theory, and unless there is a very strong necessity—I see no necessity mentioned in the Bill, and I cannot see any necessity arising out of the circumstances of the case—I confess I cannot see any reason for departing from the ordinary and usual practice, which is to bring a Bill into Parliament to obtain the necessary powers to carry out an International Agreement. Cut, my Lords, there is another matter which I object to, if possible more strongly still, because it appears to me it may have a worse practical effect—and that is, the provision that these re-enacted sections of the old Act are to apply to temporary arrangements that may from time to time be necessary. There is no proviso of any kind as regards these temporary arrangements. They need not be communicated to the Colonial Government; they need not be communicated in any way to the Imperial Parliament. What we are asked to do is to empower the Crown to carry out without any reference to Parliament whatever; without the sanction of Parliament; without the knowledge of Parliament—any arrangement that it may make of a temporary character from time to time pending the conclusion of negotiations. Now, my Lords, what is a temporary arrangement? Considering that this question has been in dispute for about 180 years an arrangement lasting over a very considerable time might be considered temporary in view of that fact. Besides that, this temporary arrangement may be renewed from time to time; there may be a whole series of temporary arrangements. It is perfectly certain that most active negotiations upon the subject have been going on for the last 30 years at any rate, and it is therefore, though I sincerely hope it will not be the case, conceivable that negotiations on this subject may still be considerably protracted.
1441 I do protest strongly against what appears to me to be a very unconstitutional action in providing beforehand for carrying out, without any reference to Parliament, any temporary arrangement or any number of temporary arrangements, for however long a period they may last, whatever number of years they may extend over, provided they are not in final settlement of the question. I object to both of these sections, because they appear to me to interfere with the rights of Parliament, as ordinarily exercised, and because they appear to me to interfere largely with the rights and privileges of the Colonial Legislature. It is impossible, my Lords, to reconcile those provisions with the Despatch which has already been quoted of Mr. Labouchere, afterwards Lord Taunton. He laid down—I do not mean to say that it is exactly correct—that—The rights are not to be ceded or exchanged without the assent of the colonists, and that the Constitutional means of obtaining that assent is by laying the measures before the Colonial Legislature.We are about to proceed by arbitration to define what the respective rights of England and France are. Well, assume that those rights have been defined and specifically ascertained by both parties, it is obvious that the rights of Newfoundland cannot be modified or affected in any degree provided nothing is " ceded or exchanged" after the rights have been defined as laid down in the arbitration. But I would point out to your Lordships that there is nothing whatever in this Bill to prevent any Government making any permanent arrangement it likes for ceding those ascertained and acknowledged rights, and from exchanging those acknowledged and ascertained rights. That may be an almost impossible thing for a Government to do; it certainly would be most unconstitutional; but there is nothing in this Bill to prevent it. If this Bill passes, any Government in the future will have the power, I maintain, of modifying, ceding, or exchanging the acknowledged and ascertained rights of Newfoundland without obtaining the sanction or without the knowledge even of the Newfoundland Legislature, and without the permission or sanction of the Imperial Parliament. If that be so, it is a very serious [matter 1442 and one which I hope the House will well consider. The only other point which I wish to speak about is the question of arbitration. I did not quite understand in the first place how we stand as regards this question of arbitration. The noble Marquess expressly reserved in his last Despatch relating to arbitration the approval of Parliament. I suppose that is the arbitration mentioned in the Preamble of this Bill, and is one of the reasons why the modus vivendi is required. I should presume that in agreeing to this Bill the House will be agreeing to the proposal for arbitration. If the Bill is dropped altogether then I have not the slightest idea how the arrangement for arbitration is to be brought before Parliament. The arbitration as I understand it, is to, define the,respective rights of the two, countries, and I must entirely and cordially agree with that principle. But. I do entertain objections to the method. Newfoundland has agreed to-arbitration and accepts it provided all questions in dispute are submitted to-arbitration after the lobster question, has been decided. I think there is a. great deal of justice and a great deal of sense in their view. I look upon it that proceeding to arbitrate piecemeal in a. matter of this kind will be exceedingly dangerous, and for this reason: that the questions involved are so intimately associated together, and depend so-closely upon each other that it would be-absolutely impossible to disassociate-them and separate them. It is only natural to suppose that whatever way-the award may go one of the parties wilt be dissatisfied. I never have known anybody yet who was satisfied with an award which went against him. It is only natural to expect that the people on the spot will be somewhat exasperated, and they will be inclined to push their claims in other matters infinitely more strongly than they would be inclined to do before; and I fear greatly that if we proceed in this way to arbitrate piece by piece, the difficulties which goodness knows are hard enough to overcome now, will be greatly increased in the future, and that there will be much greater danger of collisions and regretable incidents occurring than even in the past. Let me take for one example the question of the lobster in- 1443 dustry, the one which tells least in my favour, and the one question which Newfoundland does not object to have treated separately, a matter which I confess greatly astonishes me. Suppose we go to arbitration on this question of lobsters; suppose the award is given against us; lobsters are decided to be fish, very much, I have no doubt, to their own astonishment, and lobster factories will come within the category of those buildings which France has a right to erect upon the shore. Very well, my Lords, what will happen. It is not likely that the people of Newfoundland will be pleased with that award. The French will have a right to catch lobsters, to erect lobster factories, and so on. Three other questions will immediately come up, which will still be in dispute. There will come up our claim of concurrent right of fishing, our claim to pursue the same right of fishery concurrently with the French. There will come up the question of what constitutes " interruption " of the French, and the question of our right to erect permanent buildings, which has nothing to do with the fishery. If these questions are pushed, as they are likely to be pushed, even more strongly than they have hitherto been, it seems to me exceedingly probable that difficulties will arise. On the other hand, supposing the award to be for us, lobsters, whether they be crustaceans or whether they be fish, may be said to partake of the nature of the hare, because before you can cook them you must catch them; before you can put them in a tin you must extract them from the sea. Then what happens? Other disputed rights immediately come up. The French claim that we must not interrupt them in their fishing; and who is to decide what constitutes interruption? It may be perfectly possible that France might press her claims; and if those claims were allowed, and not resisted, might insist upon every lobster pot being taken up and every lobster factory taken down, on the ground that we were interfering with their right of fishing in the sea, and of using the shore for the purpose of drying their fish, and they might make an award in our favour absolutely null and void. It seems to me there is an immense danger involved in our 1444 proceeding by that method, and I sincerely hope Her Majesty's Government will re-consider the question and reconsider the advisability of doing what Newfoundland is so anxious should be done, that is, to arbitrate on all the questions at once. As I read the Papers, France has no objection to such a course, or rather I will not say has no objection, but I will say no strong objection. I will ask your Lordships to look at the Despatch of October 2, 1890, from M. Ribot. On page 38 of France No. 2 (1891), containing further correspondence respecting the Newfoundland Fisheries, he says, at the end of the Despatch, thatThe Government of the Republic are, however, quite prepared to consider such other conditions of an agreement as may be submitted to them, whether they approximate to the bases of the scheme drawn up in 1885, or whether they contemplate an eventual resort to arbitration, in conformity with the preliminary opinions already exchanged on the subject between the two Governments.Well, my Lords, the French Government say there they are quite ready to contemplate a general resource to arbitration. They make no mention of arbitration on one particular point.
THE EARL OF DUNRAVEN
I will now ask your Lordships to look at the Despatch from the noble Marquess to M. Waddington on page 90 of the same Blue Book, in which the noble Marquess says that he has seen his Excellency the day before Christmas, and continues—And I conveyed to you the probability that, in view of the recent failure of all attempts to close the question by agreement, we should take an early opportunity of inviting the French Government to refer the principal questions in dispute to arbitration. You ex, pressed a general concurrence in this policy-and intimated your willingness to receive any proposals I might have to make. I now submit to your Excellency, for the consideration of the Government of the Republic, a proposal to refer the extent and limits of the rights secured to France by the Treaty of Utrecht, and subsequent stipulations, to the decision of an arbitrator.My Lords, that certainly appears to me to be the whole question, and I cannot see that in the Papers presented, France has made anything in the nature of a definite refusal, as has been stated. It is perfectly true that on page 91 of 1445 the Despatch of the noble Marquess to Lord Lytton, lie states that—The French Government accept arbitration as the means of putting an end to the difficulties in regard to the Newfoundland Fisheries which the two Governments desire to adjust. They agree at once that the arbitrators shall adjudge any question which may be submitted to them by either Cabinet in regard to the capture and preparation of lobsters. They think there would be considerable difficulty in settling beforehand the exact issues to be:submitted, end that it should be open to either Government to submit to the arbitrators any question connected with the western shore of Newfoundland, provided that it is one which concerns the capture and preparation of lobsters,and so on. Well, that I should judge to mean that there is considerable difficulty in settling beforehand all the issues to be submitted, that they prefer to go on with this question of the lobster industry, but they distinctly say they will accept arbitration-as a means to putting an end to the difficulties with regard to the Newfoundland fisheries, and that, I should think, includes all the difficulties that have arisen. Be that as it may, I sincerely hope, for the reasons I have given, that the noble Marquess will, if the resources of civilisation are not exhausted, impress upon the Government of France the great dangers that are likely to arise if arbitration proceeds piecemeal and if every question is dealt with separately, because it will exasperate public opinion in certain' events, and other questions will be pressed to their utmost limits, and the difficulties and dangers arising will therefore be greatly increased. That is all I have to say about the Bill. I am sorry, exceedingly sorry, that Her Majesty's Government intend to pass the Bill through this House. What your Lordships are asked to do by Her Majesty's Government appears to me to be this: to read this Bill a second time now with a view to passing it, on the understanding, as we all know, that the Bill is never to become law.
THE EARL OF DUNRAVEN
I understand that the Bill would be dropped if the Colonial Legislation does what is required. When we have the assurance of the Prime Minister and the assurance of the Opposition that the colony will legislate it is not a very strong presumption, I think, that this Bill will never 1446 become law. But supposing the Bill does pass through this House, your Lordships will have no opportunity of saying another word about it. Some of your Lordships might feel willing to pass the Bill through its various stages on the assumption that the colony will legislate after what was said the other night; but if the Colony does not, we shall have no further opportunity of considering the Bill. I should think that it would have been a more graceful act to have simply hung the Bill up in its present condition, when we have the most strongly expressed promise on the part of the Prime Minister of the Colony to bring in the necessary legislation, and that the Newfoundland Legislature will pass immediately an Act authorising the modus vivendi. You cannot have a more distinct undertaking; and it appears to me that it would have been a more graceful way of treating the matter if this Bill had not been pressed now. Her Majesty's Government know perfectly well that if the Colonial Government does not legislate in time it could pass this Bill through all its 'D statues in one afternoon, if they chose. I sincerely hope Her Majesty's Government will not insist upon that. I would rather the Bill was left in its present condition and the Debate adjourned, and then, if the legislation was not passed in proper time, to go on with the Bill and pass it through the other House. The noble Lord the Secretary of State for the Colonies has commented upon the fact that for a long period of time the powers of the naval officers was ample, and that there was no occasion for any legislation of any kind; but your Lordships must remember that the powers of the naval officers were ample, because they were never asked formerly to exercise them in the performance of the kind of duties that have fallen to them of late. It is only recently that it has fallen to a naval officer, of his own action, to do anything that would affect property of British subjects on shore. It is perfectly true they conducted their arrangements at sea, which was quite within their function; but it is quite another thing for them to perform duties on shore, and that they were not called upon to do until quite recently. The noble Lord also says that this Bill will not affect the right of the colony to legis- 1447 late on its own affairs, because it only -affects Treaties with a foreign Power. But the peculiarities of this case is that although it deals with a matter affecting a treaty with a foreign Power, it does affect the domestic affairs of Newfoundland, and it does affect most seriously the whole internal development and the whole internal arrangements of the colony. When those Treaties were made, as your Lordships know well, Newfoundland was practically a barren and deserted Island, a mere adjunct to a fishery. Now it is settled: it enjoys a full and responsible Government; it has many industries besides fishing, and it enjoys all the means and appliances of a regularly organised society. Over nearly half the sea-board of the community, owing to the claims of the French, the inhabitants have been deprived of right of legislating in their domestic affairs, and of control over their own territory. They cannot legislate to protect their main industry. They cannot do one single thing to prevent their fisheries from being utterly destroyed; they cannot make wharves upon their harbours, they cannot bring roads down to the sea; they cannot construct railways to the coast; they can do nothing that can ordinarily be done by a civilised community. It is impossible to say that such legislation does not affect the internal arrangements or powers of the colony. It appears to me to affect our own sovereignty; you cannot grant good titles to land over this long strip of coast, you can only grant a right subject to an indefinable something, and that is the rights of France under the Treaty. You cannot grant mining licences, and it is perfectly certain that the ordinary Courts will be, after the passing of this Act, superseded in so far as that naval officers will have the power to interfere with the property of British subjects, without those British subjects having any right to compensation or redress. I do not know what the nature of the proposal of the Newfoundland delegates will be, but I suppose it will be a substitution of some Judicial Authority for the non-judicial authority now exercised by naval officers. I suppose they would wish, when questions are in dispute, that some- 1448 body accustomed to take evidence, knowing the country and the locality, and the circumstances, could decide upon the justice and the legality of the matter, and then that the executive power should remain with the naval officer. If that be so, I think that would be a very natural request to make. Consider what the position of the fisherman may be. He may be called upon by the commander of a man-of-war to take up his anchor and go to sea or get out of a particular place. The naval officer need not make any inquiry or take any evidence. It is not necessary in such a case that evidence should be taken. We know from what has been said by the noble Lord that the duties of the naval officers are exceedingly difficult. I should say that he has not said one word that is too strong in recognition of their services; but I should think they would themselves be glad to be relieved of their judicial functions in this matter, and I sincerely hope Her Majesty's Government will consider the possibility of establishing Courts of some kind for this purpose. I do not understand that the promise on the part of the delegates to legislate under Section A is in any way dependent upon Sub-section C. That is another matter altogether. What I understand is that the Newfoundland delegates undertake to pass legislation through the Newfoundland Parliament at once as to the modus vivendi and the award, and desire that the terms of an Act to deal with the Treaty rights should be arranged; but I apprehend that legislation is to go on immediately on the first point, without regard to whether legislation on the second is carried out or not. I have detained your Lordships at considerable length, and I thank you for listening to me with so much patience. I feel very strongly on this subject. I feel that in some respects the colony has been hardly dealt with, and even in the matter of this very Bill. They knew nothing about the Bill. The delegates who came over to protest against the Bill and against the form of it had never seen the Bill until they came to this country. I do not think your Lordships' House was treated altogether fairly in the matter of this Bill. The noble Lord only gave us one clear day 1449 after the presentation of the Papers of his intention to call attention to those Papers, and to bring in a Bill, and then he made a most important speech on the First Reading. It would require a superhuman genius to master all these Papers in one day, and it was probably impossible for your Lordships to be present—I know it was physically impossible for me to be in my place to hear the speech of the noble Lord. A whole month elapsed before the Bill was printed, and within one clear day after the printing of the Bill the noble Lord put it down for Second Reading. Whatever may be good in the Bill no one can deny that it contains provisions of a most far-reaching character, provisions which will be most closely scrutinised in every position, in the most distant parts of the British Empire; and I think, in the circumstances, we might have had a little more time and notice given to us to consider the matter. I think the Newfoundland legislators have a right to complain of the fact that Her Majesty's Government never communicated to them either the nature or the provisions of the Bill. It has been urged that the colony ought to have itself legislated; that when it assumed responsible government it took over all the Treaty obligations affecting Newfoundland which had hitherto rested on the Imperial Parliament. That is perfectly true. But if your Lordships consider for one moment the position of Newfoundland, when she accepted responsible government, and her position now, and the enormous difference between the French claims as understood then and as put forward by them now, the enormous difference between the whole conception of what our relative Treaty rights were 50 years ago and now, it is impossible to say that Newfoundland, in accepting legislative Government, accepted the liability to legislate for carrying out the present modus vivendi, or to carry out the Treaty engagements as understood by France. Newfoundland has never objected to carry out her Treaty obligations as understood by us. The Newfoundlanders have always said: " We will legislate to carry out our duties as interpreted by you. What you say are our Treaty rights we are willing to carry out, but we never undertook to, carry out the interpreta- 1450 tion put by France upon the Treaty or to carry out the modus vivendi. "If we consider the grievous effect of these Treaty rights upon the colony I do not think we ought to be surprised that they demurred to giving legislative sanction to anything that may possibly be conceived to mean that they have for one moment recognised the justice of the French claims. I regret that the Colonial Legislature did not legislate to carry out the modus vivendi. From what has been said by the Prime Minister at the Bar of the House, and from what we know he has undertaken, as far as he can, that is that the colony will legislate, I believe that will be done. I sincerely hope that will be so, and I also hope that Her Majesty's Government will not press this Bill through all its stages in this House, but that they will consent to hang it up in order to give the colony an opportunity of fulfilling its obligations itself.
THE DUKE OF ARGYLL
My Lords, it seems to me this is a Bill which it is extremely unpleasant to vote for, and quite impossible to vote against. It is quite impossible to vote against it because it is proposed to Parliament under the responsibility of the Ministers of the Crown who come down to Parliament and tell us that they have no adequate powers to fulfil our Treaty obligations. Nor can it be denied that that allegation is true, and that circumstances have arisen which seriously impede the existing modus vivendi of a very difficult and complicated nature on the shores of Newfoundland. I think, therefore, it is quite impossible under the circumstances that the House should say " not-contents " to the Second Reading of the Bill; but I hold that in passing the Second Reading, or in assenting to it without further discussion we are not committed to more than its principle, which is that it is the duty of Parliament to place in the hands of the Ministers of the Crown undoubted and complete powers to enforce our international obligations in Newfoundland.. My noble Friend who spoke so ably on this side of the House said he hoped that no feeling of irritation or provocation against the colony would interfere with our deliberations, and I think that sentiment was heartily responded to by the noble Lords opposite. My Lords, I go 1451 much further, and say that I heartily believe that the feeling and sympathy of this House is entirely with the colonists in the difficult position in which they are placed; by which I do not mean to say that we agree in all they have said in their argument, for I think they overstated their case on several important points; but I think we all sympathise with them in the difficulties in which they are placed with regard to France, and we seethe serious impediments which, in the present position of affairs, our Treaty obligations impose upon the prosperity and advancement of that colony. The noble Lord who moved the Second Reading of the Bill said he regretted, I think, something in the tone of the address which was delivered to us at the Bar of the House by the Prime Minister of Newfoundland.
§ LORD KNUTSFORD
Not in the tone of the address at the Bar, which I spoke of as able and temperate, but of the Petition.
THE DUKE OF ARGYLL
I beg the noble Lord's pardon. I thought he alluded to the address. I was going to say that although there are several paragraphs in that address which overstate the position of the colony with regard to our right of initiative in a matter of this kind, a matter of purely Imperial legislation, yet the tone of that Petition was admirable in all respects. It was a recognition of the ultimate responsibility of the Imperial Parliament; and although it was, of course, tinged with that feeling of independent action which is common to all the colonies of our country, I do think that a great deal of what has fallen from the noble Lord (Lord Dunraven) who has just sat down is perfectly true. The irritation of the colonists has arisen mainly from the overstrained interpretation, as it humbly appears to me, which France has put upon our Treaty obligations. If you read the clause in the Treaty of Utrecht which refers to this question, I venture to say that no human being would imagine that the French had any other right on the coast than that of simply landing to dry their fish upon our shores. I daresay many Members of this House have seen the process as I have seen it on the shores of the North American Continent, which is unlike anything that exists in this country. 1452 They have there a very much hotter sun than we have, and the result is that in the fishing season, having split the fish, they dry them in immense quantities upon the rocks, and, where there are no rocks, upon wooden stages. I have seen the shores of New Brunswick literally white with the split fish being dried in the sun. That is the right which was conceded to the French—nothing more, nothing less. Where, as I have said there are no rocks, they put up stages on the shore. The rocks generally being highly glaciated are used for the purpose; but where there is only shingle or other kind of shore, what they do is to erect wooden stages; but that is only on the foreshore, and there can be no doubt that those who drew up the Treaty of Utrecht were thinking of that practice. It has been made a subject of complaint in the Petition and in the address at the Bar, that the French have claimed not merely the right to dry their fish upon these shores, but the exclusive right to fish along the whole of this coast to the exclusion of British fishermen. There is not a word to that effect in the Treaty of Utrecht. I am told also the French claim a monopoly of the right to use the creeks and harbours which are habitually used by the boatmen and fishermen of Newfoundland. There are certainly words in one of the Declarations connected with the Treaty of Utrecht which speak of competition being limited; but the obvious meaning is, that we ought not to prevent them fishing by ourselves occupying the whole of the shore in such a way as that they shall have none of it, for the purpose of drying their fish; but surely there is, within the limits of the Treaty, room both for the French and the Newfoundlanders to fish. Then, with regard to the question of the lobsters, I think that was a question which had not arisen when the Treaty of Utrecht was drawn up. I have no doubt that nobody knew anything about the canning of lobsters at that time. As to what the noble Lord said, that naval officers should not be entrusted with duties on the land, I apprehend that the duties on land mean duties on the foreshore. The noble Marquess shakes his head; but if the Newfoundlanders have been prevented from making roads down to their own coast, from erecting buildings 1453 on their own shores out of the reach of the tide so as not to interfere with any right of drying fish, then I think that is a most undoubted exaggeration of their claims by the French. I think, under all the circumstances, the Newfoundlanders have a great and serious grievance, and I am not surprised that they have found it, practically, very difficult in the state of feeling and irritation in the colony to legislate for themselves. I am not very sure that an Act of Parliament, passed by us will not reliveve the Government of Newfoundland from a serious difficulty rather than otherwise; but I should be very glad if the promise which they have made should be realised, and if the noble Marquess opposite at the head of the Government should be able to wait until something has been done by the Newfoundland Government to enforce the modus vivendi with regard to the rights of the French. I know it is not in the power of the noble Marquess opposite to force France into a larger and general arbitration on the whole question; and if the Treaty is as I hold it to be I can well understand how the French should refuse to do so. Circumstances have enormously increased their original claims, and their proposal is to enforce those claims. My noble Friend behind me has made some observations upon certain clauses of the Bill which would seem to give the Government greater power than is absolutely necessary in the present emergency. I do not know how far that is true—certainly the clause referred to seems to give them the power of enforcing any new arrangement with France as if it was a new Treaty; and the only check upon that is, that the Order in Council must be laid on the Table in both Houses of Parliament for a month. Perhaps, if the Bill is to be further proceeded with, the noble Marquess will consider how far that clause might be modified. I entirely agree with the noble Lord that the argument at the Bar of this House with:'regard to the pledge given by Mr. Labouchere, afterwards Lord Taunton, has no bearing upon the question before us now. We all admit that the territorial rights of the colony, which are, in fact, the territorial rights of the Crown, ought mot to be altered or abated in any manner without consulting the Local Legislature. But I suppose the noble Marquess does 1454 not propose to abate or sacrifice any of the Treaty rights of the Crown; and, therefore, I think the argument on Mr. Labouchere's letter falls entirely to the ground. I am not sure, however, that words of Mr. Labouchere would not cover the case of a new arrangement made such as is contemplated by the 2nd clause in the Bill. I heard with great pleasure from the noble Marquess that there is some hope that the arrangement suggested by the colony may prevent the necessity of going further with this Bill. I believe the Government have been as reluctant as their political opponents could have been to bring in this Bill: but they have been forced into doing it by regard for the interests and honour of the Crown; and I am sure the feeling of your Lordships, as far as the colonists are concerned, is one of entire sympathy with them in their difficulties.
§ LORD HERSCHELL
My Lords, there has not been, as there could not be, any difference of opinion to-night with regard to the obligations which rest upon the Government of this country to see that the Treaties which are in existence are enforced and fulfilled. The rights, whatever they may be, and whatever their extent, are ancient. They came into existence at a time when there was no inhabitant population upon what is known as the French shore of Newfoundland. The Treaty obligations were not imposed upon any existing community by the wish of the British Government, and the community that has since grown up has come into being subject to the existence of these Treaty rights. I think that is beyond the possibility of question. The liability of the inhabitants of Newfoundland to the burden of these Treaty obligations does not depend upon any connection of the colony with the British Crown. If that link were severed the inhabitants of Newfoundland would be not one whit less under the Treaty obligations; those obligations would be in no degree less binding upon them. I think it is essential this should be borne in mind: that they would then find themselves still subject to the Treaties, face to face with the French nation insisting upon their performance, and they would be subject to the entire pressure of the force existing in the French people. I am quite sure, under those 1455 circumstances, the inhabitants of Newfoundland will feel that these ancient Treaty obligations, resting as they do upon us, bring a serious burden, attendant with manifold risks and responsibilities, and that the Government of this country is deserving of consideration at their hands in the difficult position in which they must often find themselves placed when called upon to enforce these Treaties. On the other hand, I am quite sure that the people of England will regard with sympathetic consideration the difficult position in which the inhabitants of Newfoundland are placed. The Treaty presses upon them with a heavy burden, and the conditions which exist at the present time differ most materially and vitally- from those which were in existence, or which could have been in contemplation, at the time the Treaty was entered into. At that time the country was comparatively unpeopled; there was no desire to develop its resources—indeed, its resources were unknown. It was regarded as a mere accessory to a fishing ground; but now a population has grown up in this region, possessing settled civil institutions and a small organised system of government. It is a growing population, naturally anxious to spread itself and to develop the resources which undoubtedly exist in the country. Under these circumstances, it is not unnatural that the people of Newfoundland should chafe and murmur under the restraints to which they find themselves exposed by reason of these Treaties, the more so when they conceive that the Treaties are being pressed by the other party to them beyond their legitimate bounds. If, therefore, the people of Newfoundland have sometimes appeared to press their claims unduly, or to have exaggerated their rights, or to have exhibited an over-sensitiveness or jealousy of the action of the Government at home, I am quite sure that the people and Government at home in this country will have every disposition to view their attitude in that respect with the utmost generosity. I certainly feel bound to say that I think they have in one respect somewhat overstated their case. I think it is impossible to contest the position that the Government of this country, bound as this country is to observe the obligations under these Treaties, must 1456 have the power, pending the negotiations for a settlement, or while the matter is in train for a settlement, to arrange a modus vivendi which will permit the matter to be discussed and negotiated upon. There is no tribunal to which appeal can be made; in the last resort the arbitrament of war is all that can be relied upon for a decision; and when it is remembered that a war would involve not only this country, but all her colonies and dependencies — that it would be war of a terrible description — surely it cannot be contended that a country thus bound by obligations which in the last resort may lead to war with all its fatal consequences is not to be in a position, even if there be opposition on the part of the colony interested, to arrange a temporary modus vivendi. I am quite satisfied that upon reflection the people of Newfoundland will see that is a position which cannot be maintained, that it would not be to the interest of any colony that it should force such a position upon the Imperial Government which holds its powers in trust not only for the people of this country, but for the colony connected with it. But in entering upon any modus vivendi which becomes necessary, the wishes and views of the colony should be anxiously considered, and as far as possible carefully consulted, and every effort should be made to secure that the modus vivendi agreed upon should be as little unpalatable to the colony and as little burdensome to themselves as it can possibly be made. This further matter I think also is not in conflict. When Her Majesty's Government came to the conclusion that there was no existing power of properly enforcing the Treaties at that moment, it became their duty to see that that state of things should exist no longer. I know there are those who think that having regard to the history of these Treaties, and of the connection of Newfoundland with the British Crown, the Treaties were a part of the conditions upon which the colony obtained its legislative powers, and that it is not correct to say no power exists of enforcing them there. But even if such a view is correct, it can only be ascertained after the lapse of a considerable time, and it would then prove that such means even as existed were of an im- 1457 perfect and insufficient character. Therefore, I think nobody can blame Her Majesty's Government for endeavouring at once to procure the means of enforcing these Treaties. I will not go over again what has been said by the noble Lord opposite me, but I confess it strikes me, as it did him, that as soon as that conclusion was Arrived at it would have been in the highest degree expedient that it should have been communicated to the colony with suggestions on the part of the Government as to legislation by the colony itself and an indication of the kind of legislation which might have been suggested or recommended by Her Majesty's Government. But Newfoundland has a Constitution with a power of legislation upon its internal affairs. I entirely agree that the power of enforcing these Treaties cannot be regarded as a matter merely concerning the internal administration of the colony, because we are bound by the Treaties and under obligation to enforce them; but, still, I think that the enforcement of the Treaties ought to be carried out as far possible under the provisions of the Municipal Law prevailing in the country and in harmony with settled constitutional principles. What is the proposal of Her Majesty's Government in this Bill? It is simply to revive the powers contained in the Act which was passed in the middle of last century, and those powers are certainly of a most arbitrary description. Power is given to any naval officer under the authority only of Orders from the Executive Government of the day to go ashore along the whole of this coast of Newfoundland, and there to take down buildings and generally interfere with the property of British subjects—they can take down buildings, houses, anything that they may have specific instructions to remove, or which they may consider require to be removed within the general instructions which they may receive from the Executive Government of the day. Undoubtedly that is a very serious and arbitrary power; I use the words "arbitrary power" in the sense of one which can be controlled by nothing but the will and discretion and judgment of the Executive. It was not unnatural that the Government, feeling the necessity of a power to enforce these Treaties, and having this method ready 1458 to their hand, should have contemplated its adoption; and yet, I think, it was due to forgetfulness of the elaborate conditions, as now existing, from those which existed at the time when this legislation was first adopted by Parliament. There were then no inhabitants on the shore, and no Courts; the country had no settled Institutions; the territory was not brought within the municipal law at all, and probably at that time the course taken was the only one practicable. But now there is a different state of things in all those respects. It is a settled territory, under municipal law, with Courts exercising jurisdiction there, and with a settled organised population. It seems to me that that which in the middle of the last century might have been a proper or even necessary means of enforcing Treaty obligations, ceases to be so when you have this altered condition of things which I have exhibited to your Lordships. The ordinary way of enforcing a Treaty right, when any act is to be done within the territory right, is to make a breach of the Treaty—a breach of your municipal law, to proceed in your Courts for penalties for breach of that municipal law, and giving the right to remove any erections which have been constructed contrary to the provisions (as they would be) of the municipal law. That, I apprehend, is the ordinary proper constitutional method by which th e Treaty obligations which have been undertaken are to be discharged, and I can see no reason why that course should not have been adopted on the present occasion. Of course the decisions of the Courts would not be binding on the other Power which is Party to the Treaty, but no more will the instructions of the naval officers be binding on the Power which is the other Party to the Treaty. In the one case, as in the other, remonstrance would be open to them if our part of the Treaty were not being properly discharged. Here let me say that I draw a distinction between acts to be done upon the shores within the bounds, if I may say so, of the Municipal or Local Government, and acts to be done in the territorial waters. As your Lordships, I daresay, may know, there was considerable discussion some years ago with regard to what were known as territorial waters being so, to a distance of three 1459 miles around the coast of any country. According to the views of all,writers upon international law, there exists a certain dominion, or sovereignty, or power exercisable by the nation whose shores are washed by those seas; but there arose in the case of the Frauconia some years ago—where a foreign vessel was sunk in English waters—a question which was very fully discussed as to what were the rights in territorial waters. The majority of the learned Judges were of opinion that the land covered by those waters was not to be regarded as a part of the adjacent territory within its local law, and that we could only deal with any acts done there or treat them as offences by legislation expressly for that purpose. Accordingly in the year 1878 or 1879 an Act was passed which applies not only to the United Kingdom, but to the whole of our colonies, which does make certain offences in territorial waters subject to what is known as the jurisdiction of the Admiral, and triable by the Courts of the United Kingdom; but that Act only deals with certain offences, and would not in the slightest degree affect offences which might arise in virtue of breaches of these Treaties. But the very necessity of the case being, as it seems to me, with regard to territorial waters, would justify making the naval forces do the police duty with regard to these Treaties within those waters. It would be the only practicable means by which the Treaty obligations could be carried out, and any attempt to carry them out by the Newfoundland Government within those waters would be so burdensome and so difficult that I do not apprehend there would be any objection on their part to the territorial waters being dealt with by the naval officers, under instructions from Her Majesty's Government, and I do not think that the question of the propriety of dealing with matters on shore would extend to territorial waters. Therefore, I should be disposed to draw a broad distinction between the two cases. Now, having regard to the circumstances to which I have called attention, do not the proposals of the Newfoundland delegates really afford a basis for the settlement of this matter? I quite agree that such an arrangement as I have sketched out would 1460 be a matter of some little complication and difficulty. It would be one which it would be impossible to make applicable at once; and therefore I think, in spite of their objection to the naval officers thus acting upon shore, the Newfoundland delegates indicate that' the Newfoundland Legislature would be willing at once to pass an Act giving all the powers which Her Majesty's Government ask under this Bill, notwithstanding their objections to it on principle, as a temporary expedient, until a better plan can be arranged, and they indicate their willingness afterwards to carry out legislation on the subject. That is, I think, briefly the proper constitutional method of enforcing Treaty rights. I cannot help hoping that Her Majesty's Government will endeavour, upon such a subject as this, to come to a settlement of these very difficult questions, and that they will not insist upon pressing forward this measure, even in your Lordships' House, at the present time. I cannot think, having regard to the objections which are entertained to this measure, and the objections to which it has given rise, it would be for the credit of your Lordships' House that the measure should be pressed forward through this House, notwithstanding the strong objections raised to it, and the offer to provide a substitute which Her Majesty's Government, as I understand, admit would be a sufficient substitute for it; because if that is done before a certain stage is reached in the next House, they have intimated their willingness not to proceed with the Bill. Then would it not be better that it should go no further in your Lordships' House, and that we should not seem to pass a Bill overriding the desires and wishes of the people in the colony, when that disagreeable necessity is not to be imposed upon the other House of Parliament. I press this the more because if this Bill is proceeded with, it will obviously be necessary to us to enforce in this House the views I have expressed with regard to the manner of passing this Bill. This would be the actual measure, and if it is passed through this House, we should have no further voice in the matter if the arrangement should unfortunately not be arrived at. We should then have given our sanction to a form of legislation which is without 1461 precedent, and which, I feel sure, is likely to excite jealousy and suspicion in the minds of our fellow countrymen in the colony. I feel it our bounden duty, on the grounds which the noble Duke did his best to impress upon the House, to consider the changes which would be necessary to make it such a measure as ought to pass into law. The noble Lord the Secretary of State for the Colonies, in reply to the criticisms of the delegates with regard to the second sub-section of the first clause, which has excited great alarm in the colony, said it gave no powers to the Government to make arrangements with France without the consent of the colonists. I quite agree it does not give them any new power to make a Treaty which they could not make to-morrow. And possibly it may be said it does not withdraw the absolute necessity of laying the matter before Parliament, because an Order in Council must first be laid on the Table in both Houses. But, strangely enough, it does not provide what is to be done in order to pass the measure into law. Looking at the matter practically, it may make all the difference in the world as to a Government entering into a modification of the arrangements without the consent of the colony; whether in order to enforce it they had to come and get the necessary power to make that arrangement, or whether they had only to lay an Order in Council on the Table for a certain time, after which, if not objected to, it passes into operation. The effect is very different, and I do not wonder that the inhabitants of Newfoundland, in view of the promise given them in Lord Taunton's letter, should view this with jealousy and alarm, because it does contemplate the making of an arrangement, which they do not like, easily enforcable. Therefore, my Lords, I hope that sub-section will not be insisted upon. I draw a broad distinction—I think it is a distinction which has not always been kept in view—between an arbitration which merely interprets, and an arbitration which affects our trade rights. In order that you may enforce what is called the result of an arbitration which is merely an arbitration to enforce a Treaty you want no new power. It is the Treaty you are enforcing just as much afterwards as you would have been before.
1462 The parties to the trade have agreed upon somebody to interpret the Treaty for them, but it does not make a new right, any more than a Court in enforcing the terms of an Agreement is making a new Agreement. Therefore in respect of enforcing the Treaty rights it seems to me if you have power to enforce the Treaty you have all the power you need, because the Treaty is the Treaty just as it was before, and you are not enforcing anything else but the Treaty, which is!the arrangement between the parties. It is just because it seems to me' to be only enforcing the Treaty that I do not think it infringes in the slightest degree upon the assurances given by Lord Taunton. If I thought it were not enforcing the old Treaty that would be a different matter. It seems to me that you are arranging for new rights if the rights you are going to enforce are not enforcible under the old Treaty. I am not going to trouble your Lordships with observations upon the other parts of the case; the hour is late, and I do not wish to detain your Lordships longer. With regard to the desire of the colonists that there should be an arbitration upon all questions, I am quite sure everybody will agree that it is natural, and that it is desirable. I cannot think Her Majesty's Government will, at any time and in any circumstances under which a general solution of the question seems possible, do otherwise than use their best endeavours to secure that result which it is obvious is in the best interests of the country, the colony, and Her Majesty's Government. As regards the present arrangement, I do not understand that there is at present any binding agreement on the Government to refer any question except the question with regard to the lobsters. That is agreed to be referred. As to the rest, though there is a practicability of further references, none of them could be referred except by a new Agreement between both the contracting parties. I confess I sympathise very much with the view of the colonists as to the danger to them of separate arbitrations on a variety of distinct points which do not cover the whole ground, and still leave certain matters unsettled. Of course there may be still some burning question, in view of which, to avoid infinitely serious dangers, you must 1463 obtain a solution by arbitration; but putting that aside I quite understand it would be against the interests of the colonists—and they are naturally jealous of it—to have a series of references unless that series of references cover all questions. Therefore I urge upon Her Majesty's Government that before agreeing upon any further arbitration upon any particular point they should consult the colony, should ascertain fully its views, and unless they feel themselves bound from paramount considerations to do so, they should yield to the wish of the colonists not to refer any single question—I mean without the consent of the colonists themselves—unless they could refer them all. I quite feel the difficulty of giving an indefinite pledge as to the future, but all I understand the delegates to ask is an assurance as to the present. Of course this arrangement is not to be kept open indefinitely. It is not to be kept open to either party indefinitely in the future to suggest other matters for arbitration for an indefinite time; and, therefore, I cannot help thinking that Her Majesty's Government might well convey to the delegates of Newfoundland, without, of course, acceding to their view, the assurance that, unless from some paramount necessity, Her Majesty's Government would not refer individual questions unless they could get such a reference as would cover the whole of the existing controversies. I am quite sure we are all conscious of the evils which are likely to result if this measure be pressed forward into law against the will of the colonists. With all their feelings of antagonism and hostility aroused it will not be easy to carry it out, and we may add to our difficulties instead of diminishing them. But, my Lords, if on the other hand we can carry with us the willing assent of the colonists it would be much better to do so. In enforcing this measure on the Colony of Newfoundland we cannot forecast all the evils which may ensue, though we may apprehend that they will be serious and grave. On the other hand, if we can bring them to a willing mind with us upon some programme or upon some plan which both are able to say is satisfactory and sufficient, then, my Lords, the Colony of Newfoundland, one of our oldest colonies, which has shared our peril for 1464 centuries, and which has had its part in our glories, may be, and will be, a contented member of this great Empire.
§ THE PRIME MINISTER AND SECRETARY OF STATE FOR FOREIGN AFFAIRS (The Marquess of SALISBURY)
My Lords, as the noble and learned Lord who has just sat down has said, the hour is late for the virtuous habits of this House, and for that reason I should not trespass upon your Lordships at any length. I have another reason for not wishing to do that. I cannot conceive any question upon which it is a more anxious or a more responsible task to speak than the question which is at present under the consideration of the House. We are dealing with a question on which there is the acutest possible feeling, not only on the part of our colonies, with whom we have so deep a sympathy, but also on the part of our neighbours and allies across the Channel, with whom we wish to live in as much harmony as possible. It is therefore an occasion on which I think anybody in an official position may be excused for admiring the proverb which says that "Silence is golden." The general course of the Debate in this House does not seem to call for much observation on my part. It has on the whole been exceedingly friendly. The noble Lords opposite though they demur to some of our proceedings have maintained that spirit of candour which distinguished their speeches when the matter was first submitted to their judgment. The Bill has, on the whole, been received with favour. I believe that in all essential matters there is a strong amount of agreement, and the smaller matters which have been referred to are hardly worth discussing at any length. The Bill itself in its details and structure has been the subject of a good deal of criticism, but I say, though with some hesitation, speaking after so distinguished an authority as the noble and learned Lord, that I cannot help thinking that he has not read the Bill with his usual care. It seems to me that the last sentence of the Preamble must be brought into consideration when you attempt to interpret the peculiar phrases which are found in the rest of the Bill. The words in the Preamble are— 1465And whereas differences have arisen between the United Kingdom and France with respect to the Newfoundland fishery engagements, and negotiations are in progress with a view to arrange such differences, by referring the questions in dispute to arbitration, and pending the completion of such negotiations temporary arrangements may from time to time be necessary, and it is expedient to remove the above doubts, and revive the enactments set out in the Schedule to this Act, and apply the same to any temporary arrangements that may be made as aforesaid. and to any permanent arrangement with respect to such differences.I do not know whether the noble and learned Lord said it, but I think I heard it said that the liberty to confirm temporary arrangements would extend to new and temporary arrangements without any limit of time. It is obvious that the temporary arrangement referred to in that Preamble is that precise modus vivendi which is known to your Lordships, and which is laid upon the Table of the House. It is obvious that the permanent arrangements are the result of the negotiations which were going on when the Bill was introduced, and that these permanent arrangements have exclusive reference to the differences which have arisen between this country and France on the fishery question.
§ THE MARQUESS OF SALISBURY
Differences of interpretation, certainly. They are said to be differences. Of course, there are differences of interpretation, but they are differences which, as a matter of public notoriety, are now in existence, and are the subject of negotiations. I do not, however, wish to defend absolutely the drafting of the Bill. It very often happens that a layman accepts the drafting without entirely seeing the mode in which the language used fits in with his ideas, and yet he accepts it with that humility which the laity show to the learned professions. One of the services which I hope from the discussions in this House is that, if there is any ambiguity or any difficulty in ascertaining the precise meaning of the language, the Bill, on leaving this House, will no longer be marked by any such defect. That matter is one which when we come into Committee I hope we shall be able easily to correct if the Bill is at all 1466 indefinite in its language. Then there was another veryingenious point referred to by the noble Lord behind me (the Earl of Dunraven) which would have made the Bill an absolute absurdity, but which will be one of the subjects for consideration in Committee — that is, that the works which we should have a right to order to be removed under an Order in Council are for the purpose of carrying on the fisheries, and we are at this moment contending that lobstering is not a fishery, so that the works would not be for the purpose of carrying on the fisheries, and could not be removed. That, I think, we can correct when we get into Committee. However, I do not regard these criticisms as being of so much importance on the Second Reading as they would be on the Third. The only matter in regard to the conduct of Her Majesty's Government with respect to the Bill which has met with the criticism or censure of noble Lords opposite is that we did not communicate the Bill to the Newfoundland Government before laying it upon the Table of the House. It must be borne in mind that the Newfoundland Government is occupying a position distinctly hostile, and communicating with the Government meant communicating with the Legislature. Is it respectful to Parliament to communicate a Bill to another Legislature before it is communicated to the Legislature through which it will have to pass? I have my doubts on that point. I think, at all events, it is a breach of the ordinary practice and rule of Parliament, which, at any rate in a highly-contested matter, is not easily to be defended. Setting that aside as a question of ceremony and sentiment, there was another reason why we were very unwilling that the Bill should be discussed in the Legislature of Newfoundland before it was introduced here. We did not wish our policy to be misunderstood. We were anxious to have it introduced here with a speech by a responsible Minister stating the grounds on which it was recommended to Parliament. If it had been crudely sent to the Newfoundland Legislature to be subjected to the criticisms which certainly would not have been entirely just, I think our policy would have been put into a very unfair position, and a fair and impartial judgment of the question would have been seriously imperilled. I 1467 cannot see that the colony has any reason to complain on this ground. If we had attempted to hurry the matter and to rush the Bill through Parliament, or if we had attempted to take from them the proper time for remonstrance, if there was anything to be objected to, then, no doubt, their ground for complaint would be very just. But that our intention should be communicated in the first instance to the body we serve—that is, the Parliament of England—and not to any one else, does not seem to me to be a matter of censure, but rather the setting of a precedent which it would always be wise to follow. I do not think that there is any other matter on which the noble Earl was disposed to censure us. But both he and the noble and learned Lord who has just sat down made several suggestions on the nature of the jurisdiction which was intrusted to the naval officers by this Bill, and they both indicated a very strong preference, which has also been expressed by the Newfoundland delegates themselves, for some legislation which should place the disposal of the more contested matters, especially upon land, in the hands of a more regular tribunal —the local Courts of Justice. I have nothing to say against that view. It commends itself on many grounds, although it may not be so easy to carry into execution as the existing system; but it commends itself on many grounds. We shall be glad to consider any proposals for that purpose, and very glad if we can hit upon any arrangement which will carry out the essential objects we have in view, and, at the same time, will satisfy the very proper, reasonable, and orthodox scruples about intrusting such large powers to naval officers as are naturally entertained both in this country and in the colony. I think it is clearly understood that it would be impossible to introduce any provisions of that kind into the Bill now before Parliament, because they would necessarily be of a difficult and complicated character, and much time would be required to be spent on their consideration. If any legislation for that purpose is undertaken it must be in a new Bill; but I see in principle no objection to the adoption of such a course, and the judgment we form upon it must entirely depend upon the details of the measure that is pro- 1468 posed. The noble and learned Lord seemed to think that it would be sufficient to enact that the Treaty is to be observed, and to prosecute in the Courts of Law any person who disobeyed that Treaty. Surely the noble and learned Lord must see that that would give to the particular tribunal the task of interpreting the Treaty, and the Treaty is to be interpreted by a tribunal whose moral authority will be high, but whose legal authority will be zero. The arbitrators will determine what is the meaning of the Treaty. France will require—and we have engaged by Treaty that it should be so—that we shall absolutely carry out the decision of the arbitrators, whatever that may be; but if you go into a Court of Law and claim that the Treaty is made a part of the municipal law, and that the person who breaks it is to be punished or to suffer loss for soy doing, the Treaty must be interpreted by the Court according to its own lights; and the whole work of the arbitrators will be set aside, and the whole of the diplomatic difficulties with France will be exactly what they are now. I cannot think that that particular mode of dealing with Treaties will be satisfactory. The only other observation on the part of noble Lords to which it is necessary that I should refer is the one which I think they urged with the greatest emphasis, and that is their proposal that we should accept the promise of the Prime Minister of Newfoundland that certain measures should pass the Legislature of Newfoundland, and, accepting that promise, should forbear to pursue the Bill we have in hand. Now, I wish your Lordships to examine the question of time. The fishery begins not later than the end of May. By the time June has arrived there must be power—whether it be conferred here or in Newfoundland —in the hands of the Executive to carry out the modus vivendi. The actual arbitration does not press quite so much; but it cannot begin until the Executive Government has been fortified by the approval of Parliament, and has received the power which is necessary to enable it to carry out its engagements. Therefore, it would be impossible to delay this Bill for any considerable time. The Bill that is to sanction the modus vivendi could not be delayed beyond the end of 1469 May. But my noble Friend on my left (the Earl of Dunraven) seemed to say—I think that was the tone of the observation of the noble Lord—" You have the promise of the Prime Minister of Newfoundland; what more do you want? " If he has given that promise, I am sure he has given it in absolute sincerity, and has an entire belief that he can carry it out; and it is the same with regard to the delegates who accompanied him. But is any man in a position to promise absolutely for a numerous Assembly sitting at a distance, subject to other influences than those by which we are surrounded here, and, of course, liable to constant changes in its composition, and to the accidental loss of some influential man, to the arrival of some other influential man having other views, and to a great variety of incidents which may make the Assembly, when a division comes, unwilling perhaps only in some one point—but that an important point —to carry out the engagements which have been made on its behalf? Or it may not understand engagements in the same way; or some one or other of those numerous accidents which may happen in transactions of that kind and prevent the Bill from being- passed which has been promised. I do not say they are probable—I do not say that that will be the case. I hope that the Bill will pass, and that no difficulty will arise. But we are bound to consider the case if it should not pass. The modus vivendi would not be in existence; all the liabilities to conflict would be as vigorous as ever, sharpened by the discussion which has taken place, and by the attention which has been drawn to them; and all the dangers of leaving this question open, which were so eloquently dealt with by the noble Earl opposite, would be as acute as ever. Therefore, it appears to me to be more prudent to go on with this Bill, as far as this House is concerned, with the distinct understanding that if by the time the House of Commons comes back after the Whitsuntide Recess the other Bill is passed in Newfoundland no further efforts will be made to pass this Bill before the Imperial Parliament. My noble Friend opposite also suggested that we might put aside the consideration of this Bill in this House, reserving to ourselves the right, if difficulties arose, of passing all its stages at one sitting. 1470 I do not think that would be a satisfactory proceeding. The very acuteness with which he proceeded to point out the defects of the Bill shows that it is necessary that the measure should go through the ordinary consideration of the House, especially on the part of those great legal authorities we have in this House, in order that if, unhappily, such a Bill is necessary, it may be at least a Bill which will do the greatest amount of good and the least amount of harm, of which such a Bill is capable. I do not think we should be justified in passing such a Bill, as it were, at a day's notice and without some consideration, and, therefore, I prefer to recommend your Lordships now to read the Bill a second time, and then to send it for consideration to the Standing Committee. Then if, as we all hope, the Bill is not necessary, I do not think that there is very much harm done, either from the point of sentiment or from any other point of view, in consequence of the needless labour to which your Lordships have been put. But if, unhappily, the Bill is wanted, it will be in a condition fit to pass into law, and we shall be able to go to the House of Commons with a better hope that they will take notice of the exigency of the circumstances. On those grounds, though I cannot accede to the request that we should not go on with the Bill now, I do most earnestly join with the noble Lords opposite in expressing the hope that the Newfoundland Legislature will take this matter into its own hands, and will pass the measure necessary. I believe that in doing so we shall give an infinitely greater chance of a peaceable and effectual execution of whatever the arbitrators decide to be the Treaty than could be the case if the obedience to the Treaty is imposed, as it were, from without. I entirely accept what the noble and learned Lord said of the anxiety which this Government must feel that if there is any further reference to arbitration all the contested points should be submitted for decision, that it is very undesirable that the matter should be hung up, and very desirable that we should know exactly where we stand. But, as he observed with the greatest justice, there is a great difference between the arbitration which interprets a Treaty and the arbitration which decides a right. We must not 1471 misunderstand the position of the French in this matter. I do not think that the French will shrink from arbitration which decides what the documents mean; but they do shrink from any arbitration which shall decide their general rights in Newfoundland, and whether the Treaties shall stand upright or not, whether they are obsolete or not, and whether or not they have a right to enforce them. They have again and again said they will not carry into arbritation their international rights in this respect, and I think it is because such extreme demands have been made in Newfoundland that the French have this dread of carrying the arbitration too far. I do hope that as time goes on that reluctance will be overcome, and that we may be able by this arbitration to remove all those difficulties which have done so much to imperil, not only our relations with our old ally, but also the industry and prosperity of the colony, whose well-being we value so highly.
§ On Question, agreed to.
§ Bill read 2a accordingly, and committed to a Committee of the Whole House on Monday next.