HL Deb 29 June 1893 vol 14 cc309-22
THE EARL OF DUNRAVEN

asked the Secretary of State for the Colonies what provision has been made to secure the execution of Treaty obligations to Newfoundland, and of the modus vivendi, and of the award, if any; whether arbitration is proceeding on the basis agreed to on 11th March 1891; and to move for Papers. He said, he had no intention of going at any length into the merits and demerits of the long controversy which had now been going on with France for more than a century; but it was necessary, in order to make himself intelligible, to shortly recall to their Lordships how matters stood when this subject was brought very prominently before the House in 1891, and what led up to the situation which caused so much anxiety here and in Newfoundland. Prior to the granting of responsible government to Newfoundland the Treaties, as then understood, were administered by the officers commanding ships on the Station, under special powers conferred by an Act passed in 1824, and renewable from time to time. That Act was allowed to drop when representative government was granted to Newfoundland. The Colony did not legislate on the subject, but was not to blame, as no necessity for legislation arose. Owing to the almost phenomenal good sense and forbearance shown by the people of Newfoundland and by the officers commanding British and French ships on the Station, our Treaty obligations were carried out for many years with tolerable satisfaction, or, at all events, without any intolerable dissatisfaction to the parties concerned. But of late years the long dispute as to French rights and the true sense and meaning of our various Treaties had entered upon a new and somewhat acute phase. Newfoundland became very much irritated by the system of bounties pursued by France. She subsidised her fishing industry to such an extent as to practically drive our Newfoundland-cured fish out of the foreign markets, and the Colony found herself threatened with the ruin of her principal, almost of her only, industry. People naturally had a strong prejudice against being ruined, and Newfoundlanders were not at all singular in that respect. Casting about to find means of protecting themselves, a Bill was passed by the Newfoundland Legislature for regulating the supply of bait—that was to say, practically forbidding bait to be sold to foreign countries. This Bill was disallowed by the Home Government in 1886, but, on being passed again in 1887, was allowed to become law. The importance of that Act in its effects upon France was greater than might appear on the face of it. The small fish used for bait came inshore, and were procurable on those portions of the coast lying nearest the great banks, over which portions of the coast of Newfoundland France claimed no rights whatever. France was, consequently, put to considerable disadvantage, as the fishing season was a short one. The rejoinder of France to this effort of Newfoundland to force her hand in the matter of bounties was to raise the question whether crustaceans were fish; and the lobster—a creature of naturally retiring habits—suddenly found itself raised to a position of importance as an international question. A new industry had sprung up in Newfoundland in catching and tinning lobsters; and establishments called lobster factories, owned by both British and French subjects, were in operation on the Treaty shore. France interpreted the rights which she enjoyed under the Treaties of Utrecht and Versailles to catch fish, and to land and erect sheds and stages on the shore for the purpose of curing fish, as including the right to set lobster traps and erect establishments for tinning lobsters. She claimed, also, that the British lobster interfered with the French lobster; that British lobster factories and British lobster traps interfered with her lobster industry; and that by the Declaration of Versailles we were precluded from interference with her fishery. One of two things could be done. The Government could have repudiated the interpretation of France in practice as well as in theory. Some compromise pending settlement could be made. The latter course was adopted, and in March, 1890, a modus vivendi was agreed upon to remain in force for the fishing season of that year, which was subsequently renewed. The modus vivendi was to the effect that no lobster factories which were not in operation on July 1, 1889, were to be permitted to be worked without the joint consent of the naval officers of both nations; that no change was to be made in the position of the factories without such joint consent; and that if a new establishment was permitted to one nation the other might also establish a new factory in a locality to be mutually agreed upon. In 1889 negotiations for arbitration on the lobster question were opened; they were renewed in 1890, and in 1891 a basis for arbitration was agreed upon, and arbitrators were named. Against this modus vivendi Newfoundland protested vehemently, on the ground that the claim of France in respect of lobsters being included in the fishing industry was absolutely preposterous and should not be entertained for a moment; and in respect of the Arbitration Convention, in that it comprised no scheme for compensation, and that compensation ought to be given by the Imperial Government in cases of factories ordered to be closed which had been erected previous to the question being raised. Newfoundland also demurred to a reference to arbitration on the lobster question alone, though she was not only willing, but exceedingly anxious, for arbitration on the whole question of the interpretation of the Treaties and Declarations, with the view of defining Brisish obligations and French rights. The execution of the modus vivendi involved us in a difficulty which was unforeseen, and of a most critical and serious kind. It was one thing for commanders of ships to exercise authority at sea, and in that respect, as a matter of fact, no serious trouble had ever arisen; but it was quite another thing when they exercised jurisdiction and authority in the territorial waters of a Colony and upon land—upon a shore settled by people paying taxes, sending Representatives to the Legislature, and possessing Municipal Institutions and properly-established and qualified Courts of Law. Sir Baldwin Walker, commanding one of Her Majesty's ships on the Station, ordered Mr. Baird's factory to be closed. Mr. Baird brought an action against Sir Baldwin Walker, and was cast in damages in an action in the Municipal Courts, whose decision was upheld on appeal by the Privy Council The position then became exceedingly difficult. The Imperial Parliament had no Constitutional means of carrying out the agreement entered into with France, or of enforcing the Treaty obligations. It was questionable whether empowering, an Imperial officer to act contrary to the Legislature at the Municipal Courts was the proper course to adopt. It showed you, even in the case of a community separated from us by the ocean, and not very intimately connected by ties of material interest, that a difficulty might arise between the Statutory Legislature, and the Imperial Parliament which would most certainly have led to most serious consequences had not both the Colonial Legislature and the Imperial Parliament been animated by the most conciliatory feelings, and most desirous of not coming to an absolute impasse. Newfoundland accepted the grant of responsible government. She accepted it subject to all the Treaties affecting the Colony; and, in such a case, if a local Legislature refused to do its duty, the Constitutional course would be to annul the Statute, and degrade the Colony to the condition of a Crown Colony administered direct from the Colonial Office. However there was very little time to dwell upon the Constitutional aspect of the case. The fishing season was close at hand. The danger of some unfortunate collision occurring was imminent, and it was deemed necessary to immediately take steps to enable the Queen's Ministers to carry out their undertaking with France under the modus vivendi. It was obvious something must be done. Accordingly, the then Secretary of State for the Colonies (Lord Knutsford) introduced a Bill to re-enact the powers of George IV., c. 24. A vigorous protest was made by the Colony, and a stay of execution was prayed until they could be heard in the matter. The Second Reading of the Bill was postponed, and, on a Motion he had the honour to make, leave was granted to a Delegation to be heard at the Bar. Accordingly a Delegation, consisting of the Prime Minister, the Leader of the Opposition, the Speaker of the House of Assembly, and two prominent Members of the Legislative Council, appeared at the Bar of their Lordships' House, and stated the case of the Colony very fairly and temperately. They said that the Colony were perfectly ready to do what was right and just in the matter—that an Act would be passed by their Legislature which would render unnecessary any Imperial legislation, and that, after consultation with Her Majesty's Government, permanent legislation would be passed. I need not go into details of the Debate. The noble Earl the Secretary of State for India was strongly of opinion that the best way of dealing with the subject was to institute special Courts. He said— I am strongly of opinion—and I would press this upon your Lordships—that we should upon this question establish some Court of competent jurisdiction which should deal with all these matters on land; and I am confident that would go a long way towards removing the disagreeable feeling among the Colonists of Newfoundland with regard to the enforcement of the Treaties upon their coasts. The noble and learned Lord on the Woolsack held rather that the Treaties ought to be carried out under the Municipal Law prevailing in the Colony; that any breach of the Treaties should be punishable under that law; and that any building erected contrary to our Treaties and Agreements should be removable under it. On the general question of arbitration, both those noble Lords deprecated any arbitration which did not embrace the whole subject of interpretation and sense of our Treaties and Agreements. The noble Earl opposite said— It seems to me almost impossible to contend that if there is a difference of opinion with regard to the meaning of the Treaty that difference of opinion should be settled by arbitration on one point only, and not on all. In principle, if it is right to go to arbitration on one of the points, it must equally be right to go to arbitration on all; and I still hope that under the Convention it will be found that the French Government, when the lobster question is decided, will agree to the rest of the questions being submitted. And upon that point the noble and learned Lord on the Woolsack said— I confess I sympathise very much with the views of the Colonists as to the dangers to them of separate arbitration upon a variety of distinct points which do not cover the whole ground, and would still leave certain matters unsettled. And the noble Earl added— I quite understand that it would be against the interests of the Colonists to have a series of references unless that series of references cover all the points raised. The noble Marquess, then Prime Minister and Secretary of State for Foreign Affairs and the noble Lord the Secretary of State for the Colonies considered that, until the necessary legislation should be brought in by the Colony, it was absolutely necessary to proceed with Imperial legislation. In fact, the main difference between the noble Marquess and noble Lords opposite was that the latter wished to postpone Imperial pending Colonial legislation, while Her Majesty's Government thought it necessary to proceed with it, whilst expressing a strong hope that it would be rendered unnecessary by Colonial legislation. In pursuance of the undertaking given by the Delegates, an Act was passed holding good until the end of 1893 to the effect that the Orders of Her Majesty by advice of Her Council to the Governor or to the officers commanding ships on the Station for the fulfil- ment of Treaty obligations should be lawful, and should not give rise to any action-at-law, and that the instructions for carrying out the modus vivendi and for giving effect to the award of arbitration should be lawful, and should give rise to no action-at-law. The result of all that was that the Bill introduced by the Secretary of State for the Colonies was passed through their Lordships' House, but was hung up in the other House of Parliament upon Second Reading on a Resolution that the House of Commons would support Her Majesty's Government by legislation if necessary; but that, as a satisfactory Act had been passed by the Newfoundland Legislature, it was unnecessary to proceed further with the Bill. So far, one of the undertakings given by the Delegates had been carried out, the other, regarding permanent legislation, had not; and it was upon that point he asked for information from Her Majesty's Government whether anything had been done in the direction of giving powers to the Municipal Courts of Newfoundland to fulfil our Treaty obligations as was recommended by the noble and learned Lord on the Woolsack, or whether anything had been done towards establishing special Courts as recommended by the noble Earl the Secretary of State for India—or whether things were still in the same uncertain condition as they were in 1889–91, and whether Her Majesty's Government contemplated bringing in any legislative proposal, either in that House or in the other House of Parliament? On the subject of arbitration, an agreement was signed on the 11th March, 1891, as regarded the lobstier industry; and when that was decided the Commission was competent to deal with any other questions upon the text of which an agreement had been arrived at between Her Majesty's Government and France. A hitch arose on the question of arbitration, owing to France having declared that Imperial legislation was the only satisfactory way in which the Treaty obligations could be fulfilled. To that the noble Marquess very properly replied that, provided we carried them out, the method by which we did so only concerned ourselves—that a Bill had been passed by the House of Lords and a Resolution by the House of Commons. That this country would do its duty in the matter, and whether that was done by Imperial or by Colonial legislation, by permanent or by temporary and renewable legislation, was a matter which concerned ourselves alone, and did not concern France at all. He desired to know whether any agreement on that point had been arrived at; arbitration on the lobster question had taken place, whether any and what award had been made; and whether steps had been taken to insure that the award would be carried out? He was also very anxious to know whether there was any probability of arbitration on the larger question? The arbitration should embrace the whole question in dispute—not, of course, the principle of the Treaties and Declarations, but their meaning and true interpretation. After all, that was the most important point, because in that lay the only probability of arriving at a satisfactory solution of this question, involving the Sovereignty of this country, and affecting our relations with a neighbouring Power as well as the interests of a self-governing Colony. We had possessed undisputed Sovereignty over Newfoundland for more than four centuries; and yet over one-third of the coast line and that portion of the interior which found its natural outlet on that coast, the results and acts of Sovereignty were either not exercised at all, or only very partially. We were in constant dispute with France upon this fishery question, and the Colony had been stunted, hampered, and thwarted in its natural growth and in the development of its resources. That state of things was certainly not very desirable. He felt the deepest sympathy with Newfoundland in this matter, and believed that no community had ever been placed in a more difficult and intolerable position. They were unable to develop their resources, and had been hampered in every direction. The opinion was often freely expressed that Newfoundland had been neglected in this matter because she was a small and weak Colony. No doubt, in past years, our Governments had been somewhat lax, and had not sufficiently considered the interests of the Colony, but had been too contented to protest against the interpretation put upon the Treaties by France while tacitly acquiescing in it. It would be a great mistake to allow the notion to go forth that Parliament, in dealing with our Colonies, was actuated by an appreciation of their relative strength, wealth, and power. Equal justice and equal consideration was the very essence of the Imperial idea. The whole sympathy, and, if necessary, the whole power, of the United Kingdom should, if justice and right required it, be as much at the disposal of the smallest as of the greatest of our Colonies. If anything, greater sympathy should be extended to the weaker ones, and we ought to lend a more attentive ear to those least able to make their voices heard. He had no desire to pursue that question, or to go into the rights and wrongs of Newfoundland on the present occasion. What he wished to ascertain exactly was how the matter stood at the present moment. He had seen it stated in the newspapers that the Bait Act had either been annulled or suffered to drop, or, at any rate, had not been exercised during the present fishing season. He would be glad to know if that was the case? He had also seen it stated that the Newfoundland Act extending to the close of this year for carrying out the modus vivendi and our Treaty obligations had been extended to the end of 1895. He would be glad to know if that was the case? He demurred to the principle of constantly extending Provisional Acts of this nature originally passed for a short time, because a sort of usage and custom might be set up which would be prejudicial to us if we went to arbitration. But if it were done to permit negotiations or the deliberation of arbitrators not a word could be said against it. He had no wish to tie down noble Lords opposite to their statements on the subject two years ago in that House; because, in the first place, it would hardly be right to do so; and, secondly, because consistency had entirely gone out of date, and was quite unfashionable in these days; but still he would like to know whether they still thought, as they did then, that arbitration which did not cover the whole ground would be prejudicial to the interests of the Colony, and, if so, whether that was the opinion of Her Majesty's Government? He did not wish to ask for information on any subject which might be deemed prejudicial to the public interest; but he hoped, if Her Majesty's Government were not able to give information on the subject, their Lordships would receive an assurance that ample warning and notice would be given if any Imperial legislation upon it was to be brought in. All that their Lordships knew officially and authoritatively on the matter was that the Act passed by Newfoundland would expire in December next; and unless some further temporary arrangement were made, or unless the necessary legislation was passed by the Legislature of Newfoundland, or by the Imperial Parliament during this Session, we should find ourselves in 1894 in the same situation that caused so much anxiety and so much heart-burning in 1891. For these reasons he asked the question which stood in his name.

Moved— That there be laid before this House Papers relating to the execution of Treaty obligations with France affecting Newfoundland, and to the modus vivendi."—(The Lord Kenry, E. Dunraven and Mount-Earl.)

THE EARL OF STAMFORD

said, he believed he was the only Member of their Lordships' House who happened to be a native of this ancient and he trusted still loyal, though often sorely tried, Colony. He re-echoed the noble Earl's earnestly-expressed desire that in the time still remaining a complete arbitration upon this most difficult and painful question might be carried out. He was glad to have the opportunity of saying a few words on the subject of that Colony, where, he could assure the House, a strong feeling prevailed as to the urgent necessity for settling the general question as to the French Treaty rights. The points at issue upon the subject of the French Treaty rights were set forth in a Despatch of the 24th December, 1890, of the noble Marquess, who was at that time Prime Minister and Secretary of State for Foreign Affairs. The question raised involved points as to the exact rights over the French shore, a district which was now discovered to be rich in minerals, timber, and land, and would become of more importance to the Colony at large as time went on. There was now a prospect of extending the railway to the French shore, which would have the effect of still further opening up that district. Another point of dispute was as to the use which was said to be made by the French of the Islands of St. Pierre and Miquelon as a centre for smuggling, and whether they had not been unduly armed. He ventured earnestly to express a hope that in Newfoundland itself wise and moderate counsels would prevail; that rival politicians would lay aside Party differences in dealing with matters of such vital concern; that they would show that readiness to conciliate which they had, in fact, exhibited in the suspension of the Bait Act; that they would continue in the path of peace, softened, it might be, by the sympathy which had been shown by Great Britain and by Canada towards them in the midst of the troubles which they had suffered from storm and fire; and that they would in every way help forward the final healing of that long open sore.

THE SECRETARY OF STATE FOR THE COLONIES (The Marquess of RIPON)

My Lords, I do not propose to follow the noble Earl (the Earl of Dun-raven) in the interesting historical details which occupied a considerable portion of his speech. It is my main duty to answer the questions which he has addressed to me. I should, however, like to say one word as to the views stated by the noble Earl to exist in the minds of some persons in Newfoundland—that the interests of that Colony have of late years been neglected because she is a weak Colony. Nothing can be more unfounded than that suggestion. It is entirely erroneous in regard to the conduct of any Government which has had recently to do with this question. For my own part, I feel the deepest sympathy with the people of Newfoundland in the unprecedented position in which they stand in regard to the Treaties with France and the fisheries upon the Newfoundland Coast; and it must be the desire of every Government in this country to bring to an end, whenever opportunity offers, a state of things so extremely unsatisfactory as that now existing. But I must be pardoned for saying that the Legislature of Newfoundland did not take the best means a year or two ago for bringing the matter to a conclusion. If they had accepted the draft Ordinance which was sent over to Newfoundland by the late Government, the question would have been, if not settled, at any rate much further advanced than it now is. I am, however, anxious not to add to the difficulties of this difficult question; and if it should be my good fortune to find a mode of relieving those difficulties to any extent it will be my most earnest endeavour to bring that about. The present position of affairs is that the French Government will not proceed to arbitration until a permanent Act has been passed for enforcing the Treaty obligations and for carrying out the arbitration award. It was a permanent Act which my noble Friend opposite (Lord Knutsford) wished the Legislature of Newfoundland to accept, but which they rejected. They passed instead a temporary Act, which will expire at the end of the present year, for enabling the modus vivendi with France to be carried out. The aims of the Government have been to obtain such an extension of that Act as will afford them an opportunity of seeing whether they cannot take up the broken threads of my noble Friend's negotiations, and induce the Colony to pass a permanent Act. Such an Act should, I quite agree with the noble Earl, be passed in the Colony, rather than in the Imperial Parliament. But Her Majesty's Government are bound to carry out their Treaty obligations, though, in answer to the noble Earl's question, I can say that Her Majesty's Government have no intention to introduce during the present Session any Imperial legislation on the subject. Although the Newfoundland Legislature have passed a Bill for extending the expiring temporary Act for two years beyond the end of the present year—that is to say, until the end of 1895; although, under these circumstances, there is, I hope, no chance of our having to introduce any Imperial legislation, as the noble Earl appears to fear, in the course of next Session, still the ultimate result must depend on what the Colony may be willing to do in order that we may arrive at that arbitration which is now suspended for want of a permanent Act. The Legislature of Newfoundland is now about to be dissolved, and a new election will take place. Under these circumstances, it is improbable that the Delegates will arrive in this country until after that election has been held. Whenever the Delegates may come over, it will be my most earnest endeavour to induce them to come to an agreement with Her Majesty's Government which may be approved and carried out by the Legislature of Newfoundland. For my own part, I should greatly regret to be forced to any legislation in the Imperial Parliament; but I am bound to reserve to Her Majesty's Government the right to take that course in the last resort if it be necessary in order to enable them to fulfil their Treaty obligations; but I do not believe it will. I have reason to hope that by some re-arrangement which we should be prepared to make, some reconsideration of the proposals of my noble Friend, which I think it right to say appear to have been just and fair, it may be possible that we shall be able to arrive at a satisfactory conclusion of the matter. Still, after what has happened in the past, I am unable to give your Lordships any pledge upon that subject; but I may say it will not be the fault of Her Majesty's Government if a satisfactory arrangement is not arrived at with the Delegates. With regard to a larger and wider arbitration, nothing can be more natural than that the people of Newfoundland should desire an arbitration of that kind; but it is impossible, as I understand the matter, to arrive at that arbitration, or at any negotiations for that arbitration, until the lobster arbitration has been brought to a conclusion. That must first be done, and then it will be the duty of Her Majesty's Government to see what further steps it may be possible to take. But the noble Earl must not forget that there are always two parties to an arbitration, and that Her Majesty's Government are not able to bring the French Government to an agreement of that kind except by process of negotiation; and no such negotiation can take place until the lobster arbitration has been brought to a conclusion. Then, is it not to the interest of all parties—of the Newfoundland Legislature as much of Her Majesty's Government that the lobster arbitration should take place as soon as possible, so that the door may be open if possible to further negotiation and a wider arbitration? I hope the Newfoundland Legislature will see that this is the best and wisest course to pursue for attaining the object they have in view; and if they do, it will greatly facilitate the negotiations which it will be my duty to enter into with the Delegates when they arrive. The noble Earl has put several questions upon the Paper, which I think I have answered. To the first, as to what provision has been made for securing the execution of the Treaty obligations, the answer is: the passing of the temporary Act. The modus vivendi, I should say, will come to an end at the close of this year; but I have very little doubt that the French Government will be willing to extend it during the next two years. The arbitration is not proceeding, as I have told the noble Earl, because the French Government are not willing to submit to the Chamber of Deputies the Bill which is necessary for that purpose until a permanent Act for carrying out the arbitration has been passed. I cannot give as full information as I should like with regard to the Baits Act, as that question was not placed on the Paper. If the noble Earl will be good enough to ask that question upon another occasion, I will give him more information than it is at present in my power to do. All I can say, in conclusion, is that the present state of things is, no doubt, provisional; but it opens the hope—as I trust will be the case—that it may be possible to come to an arrangement with the Delegates whom we expect next year, which will lead to the passing by the Newfoundland Legislature of a permanent Act which, on the conclusion of the lobster arbitration, will clear the ground for future possibilities. With regard to producing Papers, I propose to lay the Papers on the Table of both Houses of Parliament. I think that will be more convenient than that they should be moved for in this House alone.

Motion (by leave of the House) withdrawn.