HL Deb 19 March 1891 vol 351 cc1392-414

, in rising to call attention to the Newfoundland Papers laid before Parliament, and to present A Bill to revive certain sections of an Act of the fifth year of the reign of King George the Fourth, chapter fifty-one, for the purpose of carrying into effect engagements with France respecting fisheries in Newfoundland, said: My Lords, if in dealing with this subject to-night I am pursuing a somewhat unusual course, I trust that its importance will justify in your Lordships' opinion the action I am taking. The additional Papers with regard to Newfoundland have been but a very short time in your Lordships' hands, and I need hardly say, therefore, that I do not desire in any way to anticipate a full discussion upon these Papers, either upon the Second Reading of the Bill which I am now going to ask you to read a first time or on any other fitting opportunity. But we have thought it very desirable that a full statement of the action and conduct of Her Majesty's Government during the past year and up to the present time in respect to these Newfoundland affairs should be made at the earliest opportunity that presented itself, with a view of removing, if we can do so, some misapprehension which still appears to exist in the colony with regard to the action of Her Majesty's Government, and also in the hope of lessening, by full explanation, the irritation which, I regret to say, undoubtedly exists in the colony against Her Majesty's Government. The object of the Bill which I am now asking your Lordships to read a first time is to revive certain powers which were vested in the Crown of giving instructions to the naval officers of this country with a view of securing the performance of certain Treaties which this country had contracted with France. The Act of 28 George III., c. 35, recites the three Treaties of Utrecht, Versailles, and Paris, by which certain fishery rights were reserved and continued to France along part of the coast of Newfoundland, and certain Royal Declarations, made in 1783, and then, to quote the words of the Act— In order to enable His Majesty to carry the said several Treaties and Declarations into faithful and punctual execution, empowers His Majesty by Order in Council to give such orders and instructions to the Governor or officers on the Station as shall be deemed necessary to fulfil the purposes of the Treaty. These provisions were re-enacted by 5 George IV., c. 51, and these powers will be found in the Schedule of the Bill which I am now introducing to your Lordships. The latter Act was continued by 2 & 3 William IV., c. 79, until the year 1834, "and no longer." These Acts, therefore, and the powers which were given by them, have now lapsed. The object, therefore, of this Bill is not new, but the novelty—if I may say so—consists in the introduction of legislation of this kind affecting one individual colony which has been granted a representative Legislature and responsible Government. It cannot be disputed, and certainly will not be disputed by your Lordships, that the Imperial Parliament is within its rights if it legislates mero motu for any part of Her Majesty's dominions. That power has been recognised by eminent statesmen in both Houses of Parliament and on many occasions. But it is equally certain that such power ought to be, and is, very rarely exercised, and in the case of colonies having responsible Governments never exercised in matters of what I may call local interest or internal organisation or administration, but only in mat- ters which have an Imperial bearing and character, as, for instance, Merchant Shipping. As your Lordships are aware, by the Merchant Shipping Act of 1854 large parts of that Statute are expressly declared to apply to all British ships and to all Her Majesty's dominions. But in recent years, at all events, very great care has been taken to preserve, as far as possible, the independent powers of Colonial Legislatures. For instance, in the Merchant Shipping Act of last year (53 & 54 Victoria, c. 9), which provided a special load-line for British vessels, there was the express reservation in Section 3 that if a Colonial Legislature adopted for its own vessels a load-line on the same principles as those laid down by the Imperial Act, then the Imperial Act should be, as it were, suspended, and the load-line fixed by the Colonial Legislature should be adopted as if fixed by the Imperial Act. Your Lordships will find that equal care has been taken in this Bill with regard to the Colonial Legislature. By the 2nd section of the Bill it is provided that if at any time before the passing of this Bill, or after it has become an Act, the Colonial Legislature will grant the necessary powers for securing the performance of these Treaties, and of any international arrangement that may be made applicable to the coast of Newfoundland, then the Imperial Act shall, so long as that colonial legislation is in force, be suspended. I admit, my Lords, that a strong case must be made out for Imperial legislation in the case of a colony which has a representative Legislature and responsible Government; but before I sit down I trust that I shall satisfy your Lordships that there is a very strong case in this instance, and that, in fact, Her Majesty's Government had no option but to take the course they have taken, and to introduce this Bill. I would begin with a proposition which again your Lordships will not dispute, and which is, indeed, universally recognised, that if a country has made a Treaty or arrangement with a foreign Power, the country is bound to secure the performance of that Treaty or arrangement by its own subjects. This was the consideration which justified the earlier Acts which I have mentioned, and this is the consideration which justifies the Bill of which. I am now asking your Lordships to grant a First Reading. It is true, as I have said, that since the passing of the earlier Imperial Acts a representative Legislature has been granted to Newfoundland; but when your Lordships come to consider the point, you will see that such a grant can in no way relieve this country from its responsibility in respect of its obligations to secure the performance of Treaties or international arrangements affecting that colony. It may be, and probably is, the case that the grant of a representative Legislature imposes upon a colony to which such grant is made the duty, in the first instance, of passing such legislation as may be necessary to secure the performance of Treaties and arrangements with a foreign. Power which affect that colony; but it is equally clear that if that colony fails in its duty and declines to legislate to secure the observance of those Treaties and arrangements, the responsibility of this country remains in full force. I shall show your Lordships that in the present case the colony of Newfoundland has failed in its duty, and that we are therefore bound to act; and I will, with your Lordships' indulgence, state as shortly as I can how this necessity has arisen. As your Lordships are well aware, questions of great difficulty and complexity have for many years past arisen upon the construction of the Treaties which we have made with France relating to Newfoundland, and as to the nature and extent of French fishery rights under those Treaties; and I may say that very few Secretaries of State, either at the Foreign or the Colonial Office, have not at one time or another had to deal with those questions. It is not necessary, on this occasion, to deal with those points of difference, and, looking at the time of the evening, I will not trouble your Lordships with them, but they are very concisely stated at page 4 of the Newfoundland Paper [C. 6044]. But there can be no doubt that, owing to those differences and to the divergence of opinion as to the extent of the French fishery rights along the Coast of Newfoundland, there has been from time to time imminent danger of collision between the French and colonial fishermen; collision which has only been averted by the friendly action and the good sense, tact, and judgment of the Naval officers of both countries; and I am happy to say that those qualities have never been more conspicuously displayed than within the last few years, when the relations, owing to various causes, have become more strained, and, therefore, the probability of collision has greatly increased. Several causes have led to this state of things. I will content myself with mentioning very briefly three. In the the first place, the feeling of antagonism has been much intensified owing to the passing by the Colonial Legislature of an Act by which the French were prevented from obtaining free purchase of bait, a privilege which up to the time of the passing of that Act they had enjoyed. No doubt that Act was passed with the view of diminishing and checking the losses which had been sustained by the colonial fishermen and merchants owing to the high system of bounties granted by the French Government, a system, which has largely closed European markets to colonial-caught fish. I will not stop to inquire if the Act has worked beneficially or otherwise to the colony, but it is undoubtedly the case that the result of passing that Act has been that, the French have insisted more strenuously on their alleged rights under the Treaties. The second cause of the in creased hostile feeling has arisen from the fact that every year the effect of the Treaties is felt to be more burdensome to the inhabitants of the colony. At the time of the concession of fishery rights to the French fishermen the state of affairs was very different to what it is now, and the concession was not incompatible with the circumstances of the time when it was made. The coast along which those rights were granted was, I may say, almost uninhabited, and both contracting parties looked upon Newfoundland mainly as a fishing ground for the fishermen of the two countries, and there was very little, if any, fishing, by the colonists. But the population has now very largely increased all along that coast, and, therefore, there can be no doubt that to enforce that arrangement must necessarily cause considerable hardship, inconvenience, and suffering on a growing colony with the regular organisation and institutions of civil life; and it is needless to point out that as the population on the coast increases the evil is naturally intensified. In another point also the colonists have been suffering for some years. They have been desirous of developing the mineral and other resources and industries of the colony, but owing to the construction which has been put upon the Treaties by the French Government, and which we dispute up to a certain point, but not altogether, the development of the colony on that part of the Coast of Newfoundland where the French enjoy Treaty rights has been practically at a standstill, although rich mines are known to exist there. In these circumstances, I think we shall all concur in the following words of Lord Salisbury, which will be found in one of his Despatches:— It is impossible not to sympathise with the colonists in their impatience at the burden of stipulations which seriously interfere both with the economical development of the Island and with the prosecution of their most important industry. And I may observe, in passing, that successive Governments both Liberal and Conservative, have from time to time endeavoured to arrive at some compromise—some working arrangement by which the burdens of the colonists might be lightened. Lord Derby, in his Despatch of June 12, 1884, which will be found in the Parliamentary Paper [C. 6044, page 4], pointed out the fact that the Commission which sat for that purpose in 1884 was the eighth which had sat since 1846. Those previous attempts to arrive at a working arrangement are all recapitulated in that Despatch, and I need not refer to them; but I may, perhaps, be allowed to point out the fate of the last attempt. The arrangement made in 1884 contained a clause giving the French power to purchase bait freely. That arrangement was sent over for the consideration of the Newfoundland Government, and was returned by that Government with certain modifications which were proposed to the French Government, were accepted by them, and embodied in the arrangement of 1885. In the meantime the General Election of 1885 took place in Newfoundland, and I believe a new Ministry came into power; the arrangement of 1885 was rejected by the Newfoundland Government on the ground mainly that it contained the clause giving the French power of purchasing bait, although that clause was not objected to when the arrangement of 1884 was under consideration. The third and, perhaps, one of the most important causes which have led to the increased antagonism between the French and colonial fishermen along the coast, is the lobster fishery, which has acquired considerable importance within the last few years. In 1884 the export of lobsters was valued at 60,000 dols., while in 1888 it had increased to 385,000 dols. There can be no doubt that the lobster factories established along the coast are of very great benefit to the inhabitants. The Report of Sir B. Walker in December, 1889, upon that point says— The lobster factories are undoubtedly a great benefit to the coast population, and are-raising them gradually out of the destitution in which they existed. The land is in itself too poor to entirely support the population, but with the employment given by the factories prevents the actual starvation which in bad fishing seasons was by no means unusual. They provide employment with good wages for men, women, and even young girls, and give a great deal of winter employment to caretakers and others. It is no wonder, then, that the French claims to catch lobsters and erect factories have been hotly contested. The practical difficulty and danger of collision arise from the desire of both parties to" occupy the same fishing ground and have lobster factories at the same places. Sir B. Walker reported, in November, 1889, that it would be almost impossible to prevent collisions occurring in the fishing season of 1890 unless some special provision was made. He further reported that there was an increasing feeling of resentment against the French, and an increasing risk of this feeling showing itself in acts of an aggressive nature. Her Majesty's Government recognised the serious position of affairs at the end of that year—1889—and being "anxious to meet the wishes and learn the views of the Newfoundland Government, they telegraphed in December their desire to consult the Premier of the colony, Sir William Whiteway— Generally on matters connected with Newfoundland 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 with him as to the terms of reference. We were informed that Sir William White way would come over, but could not get away before the end of March at the earliest; and, as a matter of fact, he and the delegates did not arrive until the end of June 1890. In the meantime, looking to the serious nature of the Report of Sir B. Walker, it was clearly necessary for us to make some working arrangement for the fishing season of 1890. After communication with the Newfoundland Government, and the proposal to the French Government of certain modifications suggested by the Newfoundland Government, which, however, the French Government refused, the terms of a modus vivendi for the 1890 season were agreed to here, and communicated to the Newfoundland Government by the telegram of March 12th, 1890. Those terms, with which I will not now trouble your Lordships, are to be found in Parliamentary Paper C. 6044, page 363. We received, I may say immediately, protests against the terms of the modus vivendi from the Colonial Ministers and Legislature, and also a protest by a Petition of inhabitants very numerously signed. But I think it will be seen upon examination that those protests were based on a misapprehension of the effect of the modus vivendi, which the colonists considered to be a concession of the French claims and an interference with colonial rights of fishing. Her Majesty's Government, in a Despatch on March 31st, 1890, and subsequently in another Despatch on June 24th, dealtfully with those two points; and as this arrangement must be carried on in the fishing season of 1891, I will venture, with your Lordships' permission, to read a short passage in the reply which we gave to the Petition against the modus vivendi. It is to be found at page 7 of the Paper [C. 6256] which has just been presented, and is as follows— The petitioners do not here notice the fact that the modus vivendi referred to is of a strictly temporary character, its operation being expressly limited to the current fishing season only, neither is any notice taken of the fact that the Colonial Government was consulted as to the terms, which ware to some extent modified in order to meet their views. It was, however, necessary to conclude this merely temporary arrangement without referring it to the Colonial Government in its final shape. This 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 (the late Lord Taunton, then Mr. Labouchere) 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.' Then it goes on to answer that point— The modus vivendi does not cede or exchange any right enjoyed by the inhabitants of Newfoundland, neither does it involve any modification of their territorial or maritime rights. Any right which British subjects have to erect lobster factories on the shores affected by the Treaties and Declarations concerning the fisheries, although its exercise may be temporarily suspended, is not surrendered or prejudiced by the modus vivendi, the first sentence of which contains a statement to the effect that the questions of principle and of respective rights are entirely reserved on both sides. My Lords, instructions were given by the Admiralty to Sir Baldwin Walker, and, in accordance with those instructions, Sir B. Walker issued orders to the officers in the colony to secure the observance of the modus vivendi. In the course of the season it became necesssary for Sir B. Walker to give orders for the closing of a lobster factory; and after full notice, when those orders had been disobeyed, the officers were desired to close it by force. It had become known in the colony at that time that the earlier Acts to which I have before referred had lapsed, and it was contended that these proceedings of Sir Baldwin Walker and of the naval officers were illegal. The question of their legality was raised in an action against Sir B. Walker, and I have seen in the papers of this morning that a decision, not upon the facts of the case, but upon the legal points, has just been given by the Supreme Court of Newfoundland in favour of the plaintiff and against Sir B. Walker. As, however, the action is still pending, I should not think it right to make any further observation upon these proceedings. But your Lordships will see that the state of things had now become very serious, and it appeared to Her Majesty's Government absolutely necessary to arrive at some solution of the difficulty. We considered that an arbitration to define the rights of the respective parties upon the lobster fishery questions was the only course to be pursued. The Newfoundland Government was consulted, but we were met by an absolute refusal, couched in very concise terms, which will be found at page 19 of the last Parliamentary Paper. This is the answer of the Newfoundland Government to us:— The Secretary of State for the Colonies asks if we are prepared to submit the question of the lobster fishery to arbitration? After a careful perusal of the Treaties bearing on this matter, we find that there is certainly no question for arbitration. A similar proposition applied to Great Britain would be for the French to claim a right to take salmon in the Tees or the Tay, and for your Majesty to submit such claim to arbitration. With reference to this last sentence I think it is sufficient to say that at present there is no Treaty giving French fishing rights either in the Tees or the Tay, and in the absence of such Treaty there is clearly no similarity in the cases. The reply goes on— With respect to the lobster industry, this colony will be satisfied with nothing short of the immediate removal of every French lobster factory from the shores of Newfoundland; and all our efforts will be directed to the accomplishment of this object. What does this refusal amount to? It amounts to this in effect: "Our rights are so clear that there is no ground for referring them to arbitration and they must be enforced." It is needless to point out to your Lordships that as the French entertain an equally strong view of their claims, the enforcement of our rights must of course lead to collisions and to war. That is a position which Her Majesty's Government were not for a moment prepared to accept, and if they had accepted it the country would not have sustained them in their view. We had, as I have said, invited the Premier of Newfoundland to come over to discuss the subject and to consult as to the best mode of proceeding, and he and two delegates, his colleagues in the Colonial Government, Mr. Harvey and Mr. Bond, came over at the end of June. After repeated discussions with them and fully ascertaining their views and wishes, we finally submitted to the French Government their proposals as to how the arbitration should be conducted, what should be the terms of it, and what the conditions. The nature of the proposals and the refusal of the French Government to accept them are clearly stated at page 37 of the Paper last presented [C. 6256]. Writing on October 29th, 1890, M. Ribot says— In his Despatch Lord Salisbury is good enough to recall that, in the pursuit of this work of conciliation, both Governments had, in a spirit of mutual confidence, contemplated the eventuality of a resort to arbitration. But, whilst recognising the advantages of this mode of settlement, the Prime Minister informs us, in the Note to which I have the honour to reply, that it does not appear that this solution would be in conformity with the wishes expressed by Sir W. Whiteway and by the Newfoundland delegates; and he adds that, in order to satisfy the wishes of the colony, France should consent to surrender the rights secured to her by the Treaties; while in return the colony would be disposed either to offer facilities for the purchase of bait, or to make a reasonable money payment proportionate to the value of the advantages surrendered, and as compensation for the interests affected. M. Ribot further says— But the Government of the Republic do not hesitate to declare that the proposals emanating from the Representatives of the colony appear to rest on a wholly inaccurate appreciation of the nature of the rights and of the importance of the interests of France, as well as on a manifest exaggeration of the evils of which the colony complains. And he concludes as follows:— In view of these various considerations, and notwithstanding the sincere desire of the French Government to prevent difficulties, always regrettable in themselves, they do not feel justified in acceding to the proposals made to them to exchange their rights either for a money payment or for certain facilities with regard to the purchase of bait. The 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. I may add that again with the view of meeting the wishes of the Newfoundland Government we submitted to the French Government the further proposals which are mentioned at page 40, and they were also declined, as is shown by reference to page 63. The delegates returned to Newfoundland in the November following. I must now refer your Lordships to page 62, in which there is a telegram from myself to the Governor, Sir T. O'Brien. In this telegram, dated November 27, I drew attention to the state of the case— In pursuance of the wish of the delegates from Newfoundland who were lately in England, Her Majesty's Government have proposed to the French Government to accept a pecuniary indemnity and a statutory permission to purchase bait as a consideration for renouncing their alleged rights upon the coast and territorial waters of Newfoundland, and abolishing the bounty upon all fish not consumed in French dominions. These proposals have not been accepted. The words which I want to call your Lordships' particular attention to are the next:— The Government of France intimate that for the settlement of the question they are willing to proceed either by agreement on the lines of the Convention of 1885, or by arbitration. Her Majesty's Government are willing to take whichever of these courses may be preferred by the colony, thus showing, my Lords, our desire to meet the wishes of the Colonial Government. But either course will probably occupy a considerable time. An agreement requires lengthened negotiation, and unless a very large discretion indeed is given to the arbitrator, the preparations for submission to arbitration must be lengthy. A renewal of the modus vivendi so as to give time for further action is therefore indispensable. But after what has taken place, that is to say, after the doubts which had been raised as to the powers of the naval officers— to renew it would be useless, unless statutory force is given to its provisions. I very earnestly press upon your Government to procure the necessary legislation; the power of Her Majesty's Government to bring this controversy to a satisfactory conclusion will be seriously diminished by a refusal. Then, on page 64, will be found what I may call the ultimatum of the Newfoundland Government, which we received by telegraph on December 5th, and which runs as follows:— Ministers desire to call the attention of Her Majesty's Government to the rejection by the colony of the arrangement of 1885 as constituting a reply to the second proposal of the French Government for a settlement based upon that arrangement. With respect to the proposal for a settlement by arbitration, if it is upon the basis proposed by delegates in July last, my Ministers assent; if otherwise they wish for information as to the meaning of the phrase 'settlement by arbitration.' My Government cannot assent to any arbitration which does not include withdrawal of the French from the coast; that the granting of facilities for procuring bait be considered only with the modification of bounties. Whilst my Ministers recognise the necessity for sufficient time being allowed for complete negotiations after they take definite form, they beg to" remind Her Majesty's Government of the emphatic protests made by them, the Legislature, and the public, as well as by the delegates, against the modus vivendi, as being most hostile to interests of colony, and they are not, therefore, prepared to give legislative; sanction to the modus vivendi, Your Lordships will see that there are two' distinct points raised in that ultimatum.. The first is, that the Newfoundland Government will consent to no arbitration unless it is coupled with the condition; of the withdrawal of the French from that coast. That condition, as I have already stated, was submitted to the French Government and refused by them. So that practically the colonists refused any arbitration at all. In the second place, the Colonial Government distinctly declined to give legislative sanction to the modus vivendi for the fishing season of 1891. The position of Her Majesty's Government, therefore, was very embarrassing, because it was clear that the Colonial Government was not in any way prepared to meet our proposals or to assist us, and yet it seemed to us necessary that some steps should be at once taken, not only to ascertain the extent of our international engagements, but to provide for effect being given to them. There is one more extract I should like to read to your Lordships, because it states shortly the view which Her Majesty's Government took of the position. It is contained in a letter sent from the Foreign Office to the Colonial Office on January 16th last, and afterwards communicated to the Newfoundland Government. After recapitulating the facts of the case; the refusal of the French Government to accept the proposals of the Delegates; and the grounds upon which the Colonial Government decline to agree to arbitration, the letter proceeds— The existence of some French rights, whatever their exact interpretation may be, is. a matter of absolute certainty. The signature of England has been pledged again and again to their acknowledgment. They cannot be re- pudiated so long as the binding force of any Treaty obligations made in the past is admitted. The honour of England is committed to the acceptance of them, and the nation certainly would never consent to a breach with France incurred in the support of what would be a plain infraction of Treaty right. It is quite conceivable that the Colonial Ministers should dislike to incur any responsibility in support of Treaty rights which they have no interest in upholding, and the cogency of which may be imperfectly understood by the population of Newfoundland. But their refusal to give us their co-operation in the matter does not relieve this country from the obligations which it has incurred. Lord Salisbury considers that Her Majesty's Government must take the shortest and plainest method of ascertaining what out international engagements in this matter are, and of carrying those engagements into effect. It appears to him that no time should now be lost in making proposals to the French Government which may lead to arbitration upon, at all events, the most urgent of the matters which are in contest between them. It is hardly to be hoped that this process can be complete before the ensuing fishing season commences. It may be therefore necessary to conclude some intermediate arrangement, which probably would follow the lines of the arrangement made last year, omitting those portions of it which have become inapplicable through the lapse of time. It will be necessary to apply to Parliament to obtain the powers for giving effect to any such arrangement; as it appears from the course of legal proceedings that there is at least doubt whether our officers, in taking steps for that purpose, would be adequately protected against an action at law. The Statute of the fifth year of George IV.'s Reign, which unfortunately was allowed to lapse, will probably furnish the best model for legislation upon this point, as it only aims at securing the performance of international obligations, and does not interfere with the international affairs of the island. My Lords, I have at some length, bat I hope at not too great length considering the importance and gravity of the subject, endeavoured to state the position of Her Majesty's Government, and I trust I have established three points to your satisfaction; the first is, that we have endeavoured in every way to ascertain the views and to meet the wishes of the Newfoundland Government, and to lighten their burdens as far as we could, consistently with the responsibility and obligations which have been imposed upon them and upon us for many years by these Treaties. Their views were fully ascertained; all their proposals were submitted to the French Government; and it was not until after the French Government refused to accept those proposals, and until after the Colonial Government and Legislature had refused to assist us, that we felt that we must take the matter into our own hands. In the second place, I trust I have satisfied your Lordships that it has now become necessary to settle and define the rights of the respective parties by arbitration, with the double advantage—first, that when the rights are clearly and distinctly defined, there is no danger, or very little danger, of collision. It is in the uncertainty of the extent and nature of rights that the danger of collision lies: neither party, when those rights have been defined, will desire to infringe them or refuse to recognise the obligation to perform them. And, secondly, the great advantage will result that when once the rights have been defined, the possibility of arriving at some compromise or settlement is largely increased. The third ground upon which I trust I have satisfied your Lordships is that, as the Newfoundland Government have declined to legislate to secure a modus vivendi for next fishing season, we have no alternative in the interests of peace and order, and in the performance of our obligations, but to revive the powers which were given by the earlier Acts In truth, if we consider the case, we are in a worse position as regards the fishing season of 1891 than we were in with regard to the season of 1890, because, in the first place, those doubts to which I have referred have been raised as to the powers of naval officers; in the second place, the Colonial Government have now absolutely declined to assist us to secure the performance of the modus vivendi; and, finally, the situation has been lamentably aggravated by the inflammatory notice which has been circulated at three or four of the chief fishing places in Newfoundland, and the terms of which will be found in page 92 of C. 6256. I submit with confidence that the Government, therefore, had no option but to introduce this Bill, in which I have pointed out to your Lordships we have as far as possible preserved the independence of the Colonial Legislature by providing that should they now or or after the passing of this Act pass the necessary measures for giving due powers to the naval officers and securing the performance of the modus vivendi, and of our fishery engagements with France, then, the Imperial Act will be suspended. I have to apologise to your Lordships for having occupied so much of your time, but I must again express my hope that, in consideration of the importance and the difficulty of the subject, you will not think that I have unduly trespassed upon your patience.


My Lords, I am sure my noble Friend need have made no apology for the speech he has addressed to the House, both on account of the serious nature of the question, and also because he has very clearly and fully explained the situation to your Lordships. As my noble Friend is well aware, I being one of those who have had the honour of holding the seals of the Colonial Office, have myself not escaped from the necessity which every Colonial Minister has had of confronting the very serious difficulty there has always been in dealing with these rights of the French on the Newfoundland coast, and I need scarcely say that in common, I have no doubt, with my noble Friend and with all your Lordships, I feel great sympathy with the people of Newfoundland in the position in which they find themselves. These Treaties were made at a time when the condition of Newfoundland was wholly different. I will not attempt, especially at this time of the evening, to go into the various points which have been so well explained by my noble Friend, but perhaps the most important question of all, except the immediate difficulty of the lobster fisheries, is the fact that this portion of the coast which contains, as my noble Friend has said, valuable minerals, has been lately settled, and that a state of things has arisen which has really become almost intolerable. I think, speaking from memory, I was the Minister who advised the appointment of Magistrates on that coast, and I remember that that was not agreed to without very considerable difficulty and hesitation. Up to that time there was, in fact, no authority to enforce order or law among the inhabitants on the coast. That jurisdiction has, however, since been exercised and has been a very great benefit. But everybody must see that the state of things existing on that coast, with the growing population, cannot possibly be allowed to continue. On the other hand, to find a solu- tion of the difficulty has puzzled Minister after Minister. As long ago as when I was Under Secretary at the Foreign Office we were engaged in negotiations with the French on this subject, and Commission after Commission has been issued, and inquiry after inquiry has taken place—I myself negotiated personally with a representative sent over with the French Government—but all has been in vain. We have now arrived at a point at which I agree with my noble Friend—unfortunate as it is—some decided action on the part of Her Majesty's Government has become-unavoidable; and I cannot help feeling at the same time, as I am sure he feels, extreme regret that it has become necessary to use the undoubted power of the Imperial Parliament for the purpose of enforcing the law by an Imperial Act in a colony which is possessed of Representative Institutions, and has itself the power of passing the necessary laws for carrying into effect the Treaties which have been entered into by the Crown. There are two remarks which may be made in defence of such a step as regards the colony—lam not speaking now of our relations with France. In the first place these Treaties are all of very old date; they were all in existence at the time when responsible government was given to the colony, and the colony has exercised its rights subject to those Treaties. It cannot, therefore, be said that we are now using the power of the Imperial Parliament to interfere with the rights of the colony, because rights of the colony as against those Treaties never did and never could exist. It is perfectly manifest that as long as the colony forms a part of the Empire, and' as long as the right to conclude Treaties-is vested in the Crown, so long must there rest on the part of the colony the responsibility of passing laws to enforce those Treaties which are as binding upon the colony as upon us at home. But when there is a state of feeling like this existing in the colony, there is no alternative if we are bound by Treaty obligations to a foreign Power but for the Imperial Parliament to take care that as we have entered into those; Treaty obligations they shall be observed. And that, I apprehend, is the defence upon which Her Majesty's Government rest. I need not enter into the par- ticulars of the agreement. I quite think it will be a wise step to decide in the first place the question of the lobster fisheries, and in the next to open a door to the settlement by arbitration of all possible questions which may arise under those Treaties. This I feel bound to say: that my noble Friend has not spoken too strongly of the extraordinary tact and good sense displayed by the naval commanders on both sides for a long series of years in avoiding a collision which might have occurred at any time, and it seems to me almost incredible that there should be no naval officer, either French or English, guilty of any indiscretion by which a collision might have been brought about. That must be said in full recognition of the friendly disposition of the French nation and Government, because without that feeling and, of course, instructions due to it, their officers out in Newfoundland would not have been able to deal as they have with so delicate a situation. It is only just to the French Government to say that in the Papers which have been laid before your Lordships' House it appears plainly that the spirit in which they have met Her Majesty's Government has been of an essentially friendly nature, and that, being the case, there ought, I think, to be no difficulty now in arriving at a friendly solution. I feel confident that the Newfoundlanders, when they look at the circumstances, and reflect upon the whole situation, will see, as everyone in this country must see, that we cannot set aside our plain Treaty obligations with another Power, and they will, I believe, now, at the last moment, recognise that it is their duty calmly to wait until the issue of these negotiations is fully seen. I earnestly trust that will be the case. At present they certainly have given a very strong refusal to the appeal made to them by Her Majesty's Government; but I think they will see that any action on their part which would aggravate the situation, cannot redound to their own interests or to the benefit of the colony. I should be very sorry indeed to appear to utter, even as a private individual, any threat towards the colony, but I do not feel it altogether wrong to point out to them what the position of affairs would have been if we had not the power or disposition to en- force a Treaty between the Imperial Government and a friendly Power. Might not the French Government then have said:—"If the English Government refuse to enforce their obligation, are not we ourselves justified in enforcing the obligations under the Treaty?" And apart from the extremely serious questions which would arise, and which it would be for Her Majesty's Government to deal with, I would ask whether the Newfoundlanders would not be placed in a position which would involve great hardship upon them and injury to the colony. Upon every ground, therefore, I think they ought fairly to await the issue of the negotiations in the full confidence that Her Majesty's Government will, as I am sure they will, do their best to preserve all the rights which the colony can really claim under the Treaty, and afterwards, when those rights are ascertained, to arrive at a friendly compromise with the French Government, which will relieve the colony from the difficulties in which they are placed. I agree with my noble Friend that it is first important to ascertain what those rights are. They have been constantly disputed. The French have held one view, we have held another, and it is impossible to find any solution of the difficulty until they are ascertained. I, therefore, for these reasons, welcome this reference; I welcome it because I think it is a proper and friendly mode of dealing with a question of this kind between two friendly Powers; and I welcome it as a means to a settlement of the meaning of the Treaties. This is not, as I apprehend it, an arbitration for the purpose of taking away from Newfoundland, or for their giving up any rights they may possess. Arbitrations very often take the form of questions what, on one side or other, is to be given up; sometimes each side gives up something if the arbitrator so decides to the other; sometimes the decision is that a portion of the rights belonging to, or claimed by, one party shall be given up to the other party. But this arbitration—and I think the Newfoundlanders ought to weigh that well—is not of that nature; it is for the purpose of ascertaining by an impartial examination what is the true interpretation to be given to the Treaty obligations which we have en- tered into. That having been ascertained there will remain, of course, the further question which may be left to be considered afterwards—what solution can be found for the whole difficulty. As a preliminary step nothing could be better than arbitration to ascertain the meaning of the Treaty. With regard to the modus vivendi, after the explanation which has been given by the noble Lord, it is not necessary at present to say anything further; it is sufficient to say that there must be a modus vivendi, and that there must be power to enforce it during the negotiations. That seems to me to be the justification for this Bill. I should be most ready to find fault with it in the interests of the colony if I thought there was reason for it, but I do not. I have not yet seen the particular stipulations in it, nor do I know what the precise provisions of the Act of George IV. may have been; but, speaking generally, I have no hesitation in saying that deeply as I regret that the necessity should have arisen, I cannot see how it was possible to avoid interference by the Imperial Legislature for this particular and most important purpose.


My Lords, the noble Lord who has just spoken has, in responding, dealt with this question in so candid and patriotic a spirit that it is quite unnecessary for me to add any words further than to say that I am glad, not only that he generally approves of the policy we have pursued, but that he spoke in the most sympathetic manner of the position of the colonists. I feel that they deserve every sympathy we can give them. They have been the sport of historic errors. It is an illustration of the continuity of the history of this country that we are now embarrassed and are paying the penalty of the deeds of Lord Bolingbroke, whom it did not suit to exact as strong terms as he might have exacted in the Treaty of Utrecht as against the French. The consequence was that these fishery rights were allowed to survive, with all the embarrassments they have brought with them. Once or twice in our subsequent history there was an opportunity when, without difficulty or strain, diplomacy might have removed this embarrassing chapter of our International Law. But it was not done. I believe that somebody appealed to Lord Castlereagh to make more satisfactory arrangements in 1815, but he replied that it would be inconsistent with the position of the French Government. It is impossible not to deeply pity these people, whose daily life and prospects of developing their industry in an inclement climate are subject to such difficult conditions, and who have been the sport of the errors of former statesmen. But of late years, ever since Lord Palmerston began these negotiations in 1834, statesmen of all schools and Parties have given their utmost efforts to bring about a satisfactory solution. Unfortunately, though it is impossible to speak otherwise than in terms of high appreciation of the tone and temper in which the French Government have dealt with the whole of this matter, still there is a strong feeling in France, not unconnected, I suspect, with their recollections of the past history of these countries, which makes it very difficult for any Government to obtain the slightest relaxation even of the more extreme and unreasonable claims which from time to time have been put forward by France. Therefore the negotiations have struggled on, what with the feeling of the colonists on the one hand and the claims of France on the other, under quite insuperable difficulties. In 1878, when the present French Ambassador was the Prime Minister of France, and I was holding the office which I hold at present, we sketched out what we hoped might be a reasonable compromise, selecting particular parts of the colony in which the French might enjoy freer rights, and releasing from those rights with entire freedom to the inhabitants all those parts of the coast in which it was thought that mineral or other sources of improvement might lie. We did not pursue it, we merely sketched out the idea; but it was taken up by our successors. Lord Granville pursued it—I do not know the details of the negotiation—for five years; and in 1885, when I succeeded him again, I found that he had succeeded in effecting a most equitable and satisfactory arrangement. It fell to my lot to give the signature to it, but it was a Treaty negotiated by him. Most unfortunately, I think, the Colonial Government were persuaded in apolitical crisis, under the influence of electors new to political power and scarcely cognisant of the responsibility attached to their action, not to avail themselves of that opportunity, and they rejected that Treaty. It was a golden opportunity lost, and I am afraid for ever. Since that time we have struggled on as best we could, and I think if that unfortunate animal, the lobster, had not interposed its claws between us we might still have got on; but with the lobster industry sprang up a pile of insoluble questions, bringing together sharply opposed interests, exposing us every year and every day of the fishing season to the risk of dangerous collisions. Because, my Lords, though the tact of our naval officers has been very great—they deserve every word that has been said of them—and though we can rely upon them to the utmost, still it was impossible not to feel but that at any time an ugly blow might have been given, or that something might have been done on one side or on the other by which the honour of the flag might have been imperilled. We know how easily the feelings of nations are aroused, and it was difficult to look without grave apprehension at the future such eventualities might involve. I think the colonists have lost sight of some of the most important considerations which should guide them, but it is fair to say that they have been very much pressed by material suffering; their fishing seasons have been unfortunate; their climate has been unusually severe; and they have shared in that depression of trade which has for some years affected the world. Therefore, I think they have judged too hardly and hastily of the existing situation. Judging from some utterances that I have seen of—I am sorry to say—responsible people, they seem to imagine that the embarrassments with which they are struggling are part of the result of their loyalty to the Queen and of their connection with this country. That is a great mistake. I do not for a moment suggest that there is the slightest probability or chance of a realisation of those utterances by which their political position would be modified; but I only say it is a great mistake to imagine that this difficulty with France would be in the slightest degree affected if they were now at liberty to tender their allegiance to any Sovereign or State in the world. The rights of the French would attach to that part of the coast under whatever allegiance they might rest. I think it right to say this, because of the wild language which I have seen has been used by some persons in the colony. I do not, however, believe that from the mass of the colonists any unreasonable conduct is to be apprehended. I think that when they see the question discussed, as it must be in this and the other House of Parliament, and when they see that their rights are subjected to the judgment of an impartial Commission, and that all we desire to do is not to modify or alter their status in any degree but merely to ascertain what that status really is before a tribunal of International Law, I feel certain that they will recognise the sympathy and the sincere desire which animates every school and Party of English politicians, and that they will co-operate with us in solving one of the most difficult international problems that has ever perplexed succeeding Governments, and will aid us in restoring to the utmost extent we can—and we have shown that we are ready to make considerable sacrifices for that purpose—that prosperity and plenty which no one desires more earnestly for them than the statesmen and the Legislature of this country.


If I may be allowed to speak again I would ask the noble Lord the Secretary for the Colonies one question—I have no doubt he will answer it in the affirmative—that is, whether the colonists will have full opportunity of representing their views before the Commission? No doubt that is intended, but it would be more satisfactory to hear the statement from his lips.


Not only will they have full opportunity of bringing their views before the Arbitrators, but we have telegraphed out to know whether they desire to have as one of the delegates some one who has the confidence of the Colonial Ministry. We have not yet received an answer.

Bill presented; read 1a; and to be printed. (No. 76.)