The Story of Newfoundland

by Earl of Frederick Edwin Smith Birkenhead

"Instead of protecting British fishermen in the prosecution of their lawful avocation, and resisting the new claim of the French, our Government, after failing to enforce the claim of the French, tried to go to arbitration upon it before a Court in which the best known personage was to have been M. de Martens, the hereditary librarian of the Russian Foreign Office, whose opinion on such points was hardly likely to be impartial. Luckily, the French added a condition, the enormity of which was such that the arbitration has never taken place, and it may be hoped now never will.

"While British officers were backed up by the Government in most arbitrary action on behalf of the French and against the colonists, the theory continued to be that the French pretensions were disputed by us. At the end of 1889 the Home Government sent for the Prime Minister of Newfoundland, who came to England in 1890. A modus vivendi was agreed to preserving such British lobster factories as existed, and the French Government agreeing that they would undertake to grant no new lobster-fishing concessions 'on fishing grounds occupied by British subjects,' whatever that might mean. But the limitation was afterwards explained away, and the modus vivendi stated to mean the status quo. The Colonial Government strongly protested against the modus vivendi, as a virtual admission of a concurrent right of lobster fishing prejudicial to the position of Newfoundland in future negotiation; and there can be no doubt that the adoption of the modus vivendi by the British Government without previous reference to the colony, and against its wish, was a violation of the principle laid down by the then Mr Labouchere, when Secretary of State in 1857, and by Lord Palmerston. Our Government deny this, because they expressly reserved all questions of principle and right in the agreement with the French, and that is so, of course; but there can be no doubt about the effect of what they did.

"By an answer given by an Under-Secretary of State in the House of Commons, the views of the Newfoundland Government were misrepresented, it being stated that they 'were consulted as to the terms of the modus vivendi, which was modified to some extent to meet their views, although concluded without reference to them in its final shape'; but the Newfoundland Government insisted that the terms of the modus vivendi had not been modified in accordance with their views, as they had protested against the whole arrangement. The Home Government quibbled and said that the answer showed that the Newfoundland Government were not responsible for the modus vivendi as settled. Plain people, however, must continue to be as indignant as the colonists are at the misrepresentation and the breach of Mr Labouchere's principle.

"The terms of the modus vivendi accord to unfounded pretensions the standing of reasonable claims, and confer upon the French the actual possession and enjoyment of the rights to which these claims relate. Mr Baird refused to comply with the modus vivendi. Sir Baldwin Walker, commanding on the coast, landed a party of blue-jackets in 1891, and took the law into his own hands against Mr Baird, was sued for damages, and twice lost his case.[56] There had existed an Imperial Act under which Sir Baldwin Walker might have been protected, but it had been repealed when self-government was granted to Newfoundland. In the same year of 1891 a Newfoundland Act was passed, under heavy pressure from the Home Government, compelling colonial subjects to observe the instructions of the naval officers to the extent of at once quitting the French shore if directed, and the Act was to be in force till the end of 1893. The Home Government had passed a Bill through the House of Commons, and dropped it, before it received the Royal assent, only after the Prime Minister of Newfoundland had been heard at the bar of both Houses and had promised colonial legislation. The French Government have insisted that a British Act should be passed; and Lord Salisbury, while declaring that there ought to be a permanent Colonial Act, has always refused to promise a British Act. To my mind, the Newfoundland people went too far in giving up their freedom by passing the Act which I have named, an Act to which, had I been a member of the Newfoundland Legislature, nothing would have induced me to consent; and my sympathies are entirely with the Newfoundlanders in their refusal to part with their freedom, for all time, by making so monstrous a statute permanent."

The modus vivendi treaty was periodically renewed by the Colonial Legislature with a submissiveness which would have seemed excessive if they had not been pressed with the shibboleth of Imperial interest. At the same time, signs of restiveness were not wanting. The complaints of the Newfoundlanders became more frequent, more insistent, and more emphatic. They pointed out that the French virtually claimed a monopoly of an 800-mile shore, which was entirely British of right, that in consequence they interfered with the development of the mining industry, and the extension of railways, and that thereby they were seriously hampering the progress of the colony. The case put forward by the colonists was historically strong, and there was much to be said for the contention that they were entitled to everything they claimed: on any view they could rightly complain of a cruel injustice, so long as the indolence or incompetence of English diplomacy suffered a debatable land to survive in the teeth of an undebatable argument.

In August, 1898, at the request of the Newfoundland Government, a Royal Commission was appointed by Mr Chamberlain, and sent out the following year, for the purpose of inquiring into the whole question of French treaty rights. A good deal of evidence was given by local colonists of acts of French aggression, and of consequent injury in person and property. But the report remained unpublished. Such aggression was in keeping with the instructions issued in 1895 by the French Premier and Foreign Minister to the commanders of the French warships on this station: "To seize and confiscate all instruments of fishing belonging to foreigners, resident or otherwise, who shall fish on that part of the coast which is reserved for our use"—instructions that amounted to an arbitrary assertion of territorial sovereignty. And yet the actual interests of France were very meagre: thus in 1898, on a coastline where some 20,000 Newfoundlanders were settled in 215 harbours, there were only 16 French stations and 458 men on the 800-mile shore; in 1903 only 13 stations and 402 men.[57]

In 1901 when the vexed question came once again before the Newfoundland Legislature, the Government declared that in renewing the modus vivendi for the following year, they did so only in consideration of the obstacles then in the way of the Imperial Government to securing a satisfactory settlement of the whole matter.

In 1904 the Newfoundland Government refused to relax the Bait Law any more; and France then consented to enter into the notable agreement, which once for all abolished the inveterate grievances and difficulties arising out of the "French shore" question. In consideration of certain territorial privileges in West Africa, France agreed to relinquish her rights as to landing and drying fish on the treaty shore, which had been recognized by the Treaty of Utrecht. French subjects injured by this arrangement were to receive such compensation from Great Britain as would be awarded by a tribunal consisting of one representative of each contracting party, assisted by an umpire if necessary. The French were to enjoy the same rights as British subjects of fishing on the coast generally, and were permitted to take bait, which they had been forbidden to do by the Newfoundland Act of 1886. This convention did not affect the applicability of local law as to bait in regard to the non-treaty coast.

Newfoundland was satisfied with this change. After the ratification of the agreement, the new Governor, Sir William MacGregor, telegraphed to Mr Lyttelton, the Minister for the Colonies, asking him to convey to the King the people's acknowledgment of the "great boon" conferred by the Convention, which His Majesty was chiefly instrumental in initiating, and to the British Government for having safeguarded the interests of the colony in negotiations involving so many difficulties. That this view represented that of the population at large was shown by the return to office (October) of Sir Robert Bond and his colleagues with a very strong majority.

Soon afterwards an entente cordiale was established between Newfoundland and the French colony of St. Pierre and Miquelon.