Lords Sitting of 29 May 1891

NEWFOUNDLAND.

  QUESTION—OBSERVATIONS.
  LORD NORTON: I beg to ask the noble Marquess at the head of the Government what is the present state of the proceedings relating to Newfoundland?
  THE PRIME MINISTER AND SECRETARY OF STATE FOR FOREIGN AFFAIRS (The Marquess of SALISBURY): My Lords, the sources of information on that subject are as open to my noble Friend as they are to me. As I understand the circumstances, they are these: Her Majesty's Government proposed to read a second time yesterday in the other House the Bill which passed through this House. In view, however, of certain telegraphic information which has come from Newfoundland, they intimated at the same time that there was a very strong probability that it would not be necessary to carry the Bill to its ultimate conclusion. The House of Commons appears to have disliked the idea of passing the Bill a second time, which it was not certain was to be carried forward, and in place of passing the Bill they passed a Resolution which, as I understand it, pledges that House—I have not got the terms before me, and I am speaking from memory—to support the Convention recently entered into between France and Her Majesty's Government, and to support Her Majesty's Government in executing all their obligations towards France. As to what the immediate result of that proceeding will be, of course, I can only speak with a certain amount of reserve. I do not know what view the French Government will take of it; my present impression is that they will consider that it is an adequate satisfaction of any engagement which Her Majesty's Government has entered into, and that probably we shall go forward to arbitration. But until I have had an opportunity of communicating with the French Government, and until the Treaty has been approved by both Chambers of the
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  French Legislature, I cannot speak on that subject with absolute certainty. With respect to the future, I understand that the result is this—that the House of Commons has pledged itself to support any legislation that may be necessary in order to carry out the obligations which this country has incurred towards France. Whether such legislation will be necessary we do not know. It must depend largely on the action of the Colonial Legislature. The Colonial Legislature is at present in the position of having bound itself absolutely to the modus vivendi, as I understand, until the arbitration shall take place, and, after the arbitration has taken place, has bound itself to the execution of the award up to the end of 1893. The information we have received from the delegates is that if by that time Her Majesty's Government shall have agreed upon legislation with respect to the tribunals by which the award and the Treaties are to be enforced, and compensation due to any persons who may suffer under them, then in that case the Newfoundland Legislature will give permanence to the provision which we understand they have now adopted until the end of 1893. One, therefore, of two things must happen. Either we shall agree with the Newfoundland Legislature, and in that case the Act which has just been passed will be made permanent, or, at least, an Act satisfying the essential international conditions of that legislation, or we shall not agree with the Newfoundland Legislature, and then the pledge that has been given by the House of Commons will come into operation, and Imperial legislation in the course of 1893 will be necessary in order to fulfil the international obligations we have contracted towards France. That is my understanding of the result of the proceedings which took place last night, but as the Resolution which was passed was not drafted by a supporter of the Government, and was only accepted by the Government, I have, of course, no more knowledge of the precise meaning to be attached to it than any other person who can judge by the newspapers of what took place. I do not know that I have any cause to regret the terms of the Resolution which was passed; but I think we have all cause

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  to regret, in view of our international obligations, much of the language used by authoritative persons in the course of the Debate which then took place.
  LORD HERSCHELL: My Lords, I should like in reference to the observations which the noble Marquess has made to ask whether, if the Act passed by the Colonial Legislature is substantially in the terms of the Act which it was proposed the Imperial Parliament should pass, so that the Executive possesses the power to enforce Treaties to the same extent as they would have possessed them if an Imperial Act had been passed, it is any concern of France whether those powers are conferred upon the Executive of this country by the Act of the Colonial Legislature or by the Act of the Imperial Parliament—whether that is not entirely a municipal matter with which no foreign Power can have any concern; and whether their concern is not alone to see if the Executive have power to enforce, and to enforce as they have a right to claim we should, any engagements made with them—whether the mode in which that power should be conferred upon the Executive of this country, and the relations between the Government of this country and the Colonial Legislature, are not matters entirely beyond the province of any foreign Government? With reference to the criticisms which the noble Marquess had made upon the language used in "another place," of course I do not know to what language he particularly referred; but I am not aware of any language used there yesterday which casts the slightest doubt upon the obligation of this country towards France, completely to fulfil all its engagements, or on the duty of the Government to see that it was in the possession of power to carry out its Treaty obligations. Beyond that, I venture to submit that the discussion which took place can not be a matter of concern to France.
  LORD THRING: My Lords, I should like to say a few words on this question, which I have studied very deeply. I understand completely what the noble Marquess has just told us, that legislation is absolutely necessary, but I contend that legislation in this matter is unnecessary. The Treaty has, as we all know, been in operation for nearly 200 years, and legislation during the whole
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  of that period existed for only 13 years—for three years after the Act of 1883 and for 10 years after the Act of 1824. Therefore, from the date of the Treaty of Utrecht, in 1713, down to this year, 1891, there have been only 13 years during which any Act of Parliament at all has been necessary. No explanation has ever been given why the Act of 1824, which was the same as the Act of 1883, was necessary. We know that it was dropped in 1834, and there is no tittle of evidence to show that it was dropped because of the legislative powers given to Newfoundland. On the contrary, if for so many years before it was not wanted, it was not wanted then; and the proof is this, that from 1834 down to 1883 no claim was made for legislation. It was never asked for. And why? Quite clearly, in my opinion, because the Queen has absolute power to make Treaties and to give her officers at sea instructions to carry into effect any of the obligations of those Treaties at sea. Then what did the colony do? They are accused of having done nothing. On the contrary; the fact is, they gave every naval officer who commanded on the station a Colonial Commission of the Peace, and under that Colonial Commission he acted in carrying into effect the Treaty obligations on land as part of the Municipal Law of the colony. I admit there were two causes why legislation was not wanted: the Queen, as Admiral of the Seas, carried into effect the obligations of the Treaty at sea, and the colony, by means of the naval officers, carried them into effect on land; and therefore, during nearly two centuries, there has been no Act of Parliament required at all, except that, for some unexplained reason, there was an Act of Parliament in existence during 13 years. Then a Bill was brought in upon a statement that the colony had neglected to perform its Treaty obligations, and what were those Treaty obligations? Why, in the very Preamble of the Bill that was brought in it was stated that the modus vivendi was not within the Treaty at all. It states that the Bill was brought in to carry into effect permanent obligations, and it is stated on the face of the Bill that these matters are not within the Treaty obligations, but that the provisions of the Bill are to apply as if they were within the Treaty

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  obligations. I confess I am at a loss to understand how it can be said that the colony has shown any laches in the matter. The reason why a Colonial Commission was required for the law to be carried into effect on land was that it was part of the Municipal Law; but, undoubtedly, with regard to the modus vivendi, which they say on the face of the Bill is not within the Treaty obligations, when they began to talk of permanent obligations, which they say on the very face of the Bill are not within the Treaty obligations, then undoubtedly legislation was required. That being so, I say no blame can be attached to the colony for not carrying into effect obligations which the Government themselves admit, in bringing in the Bill, are not within the Treaty obligations.
  THE LORD CHANCELLOR: If I have not misunderstood my noble and learned Friend, I am rather astonished to hear it suggested that Her Majesty, by Treaty, could allow her Admirals to interfere with the private rights of any one of Her Majesty's subjects. That is a new doctrine to me, as matter of law, and I must protest against it.
  LORD THRING: I did not state that the Queen had any right, by reason of her Prerogative, to carry into effect any measures on land whatsoever, but that the Queen has at sea, except by a recent Act to which I need not now refer, always had power to act with regard to obligations under foreign Treaties.
  THE MARQUESS OF SALISBURY: In answer to the question addressed to me, I may say that as far as I can judge I understand the state of the law was quite accurately explained by the noble and learned Lord opposite (Lord Hers-chell) that the mode in which this country carries out its international obligations is matter for its own concern, and its own concern only, being purely a matter of Imperial discretion. The only thing which I understand France has a right to do is to take notice of any indications which should induce her to think that we did not intend to fulfil any Treaty obligations we have entered into. We have promised to execute the award. If France was justly able to say that anything we have done threw doubt on the genuineness of that intention, I do not say that it would justify, but it would explain the conduct of the
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  French Legislature in declining to go on with the negotiations in regard to the Treaty. But I must not be understood for a moment as saying that anything we have done lends the slightest countenance to that suggestion. I do not think it does. I think it is only from ignorance on the part of people who are unaware of what has actually happened that such a suggestion could be made. I do not think for a moment that anything which has taken place could bear that construction. The House of Commons voted a Resolution unanimously last night; and there is not the slightest ground for believing that there is the slightest intention on the part of any Member there that we should not execute to the fullest the obligations entered into by the Convention. But the French Chamber may not be so thoroughly acquainted with our Parliamentary methods as to enable them properly to appreciate the effect of what was done. With respect to what has been said by the noble and learned Lord, one difficulty about the distinction he drew between sea and land is that the Treaty largely affects the land, and I am afraid the Queen's Prerogative as Admiral of the Sea will not enable us to dispose of the difficulties that arise on the land.
  LORD THRING: I did not say it would. I said exactly the contrary—that the naval officer had power as a Magistrate under the Commission as Justice of the Peace from the Colonial Legislature to execute the obligations of the Treaty which were part of the Municipal Law of the colony.
  THE MARQUESS OF SALISBURY: I can only deeply regret that the noble and learned Lord, was not sitting on the judgment seat in Newfoundland at the time the recent action was brought, for, if he had, Her Majesty's officer would not have been cast in damages. It was laid down very distinctly by the presiding Judge that it was not in the power of Her Majesty to confer upon a Treaty concluded by her the character and quality of a municipal obligation.
  LORD THRING: My Lords, I have only to say this, as the proceedings in that particular case were not laid before this House, that the point was never raised to which I am referring now, and that it is intended to raise it.
  THE MARQUESS OF SALISBURY: Of course, I do not know what the noble and learned Lord has been told, but as far as the recent communications go, I gather that they support the view of the law, in which the noble and learned Lord on the Woolsack agrees, that Treaty obligation, old or new, is no part of the Municipal Law of the land, and cannot be made so by any Act of the Executive. That is the difficulty under which we are, and under which we have been for a long time placed. There were two Acts in existence giving that power; one of them, unfortunately, was dropped per incuriam I think in 1834; and the other was swept away by the noble and learned Lord with the besom of destruction in one of those Statute Law Revision Acts with which he has so abundantly presented Parliament, and the result of that activity on the part of the noble and learned Lord has been the creation of much of the difficulty into which we have fallen.
  LORD THRING: My Lords, I beg to say in reply to the statement just made that the noble Marquess at the head of the Government is wrong on every point. With regard to the Statute Law Revision Acts I have had the assistance of every Lord Chancellor, beginning with Lord Cairns, and including my noble and learned Friend who at present occupies the Woolsack in passing them, and I beg to say that they have been far the most complete measures for the reform of our law that have ever been enacted. Noble Lords may sneer or laugh as they like, but that is the fact. Then with regard to the statement that we have altered the law, that is not the case. This has been contradicted over and over again. So far from the law having been dropped, as the noble Marquess has said per incuriam, it was no such thing. The Act of 1824 was continued first for five years, then for another five years, and was then dropped in 1834. It is not true, as has been stated by the noble Marquess, that any blunder was made by the Statute Revision Acts, for that Act had been entirely obsolete for more than 50 years. Therefore I am justified in saying that the statement with regard to the result of the labours of the Committee, of which I have the honour to be Chairman, is entirely untrue. Then, my Lords, I have never said the
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  Queen had power on land, and I have never said that the Treaties necessarily became part of the Municipal Law. What I say is, that under the very peculiar circumstances of the Treaty of Utrecht, a state of circumstances which I suppose has never existed in any other country or colony, I believe that inasmuch as the legislature of Newfoundland took all their powers subject to that Treaty, in that sense it was part of the Municipal Law of Newfoundland, and has always been in force as such for 200 years.

  MORTMAIN AND CHARITABLE USES AMENDMENT BILL [H.L.]
  A Bill to amend the law relating to mortmain and charitable uses—Was presented by the Lord Herschell; read 1a; and to be printed. [No. 140.]
  House adjourned at five minutes before Five o'clock, to Monday next, a quarter before Eleven o'clock.