New-York tribune. [volume] (New York [N.Y.]) 1866-1924, 1891-02-26
St. Johns, n. F., February II

ONE OF HER sUBJECTS2
St. Johns, n. F., February II.
The celebrated case of Baird versus Walker
same I'D for argument at the Post Terminal Sit
,ings of the Supreme Court on the 9Th inst. and
occupied three days. Sir +. b. Carter, Chief
Justice. and Sir Robert Pinsent, d.. c. L., were
the Judges, Mr.. Justice Little being absent on
furlough. For the plaintiff, Baird, there APP
reared Sir James S. Winter, Q. c., and Mr.. g..
Greene, @. c.; for the defendant, Walker, Sir
f, William Whiteway, @. g., and X. G.. Kent, Q. C..
10 II was a surprise TO every one when Sir William
q Whitcway, Premier and Acknowledgement ap.
peared in court on behalf of Sir Baldwin Walker
in a case which was virtually the Colony versus
the British Government, involving on one side the
rights and liberties of our people, and on the other
the exercise of a royal prerogative which, as the
plaintiff contended, was unjust and oppressive.
Should the plaintiff gain his case the Colony
would obtain a great victory. Not only would
the modus vivendi become a dead letter, but all
those antiquated treaties would go to the wall,
there being no legal authority to enforce them.
In such q case, where the vital interests OF the
Colony were at stake, it was felt that the fremler
and Attorney-G General should be at least neutral
and abstain from employing his legal ingenuity III
rivctinr the chains that bind us. His position en-.
titled MN 10 SIduu dSluC II hO SANSN
could resist the temptation of a big retainer from
the British Government? Certainly not Sr Will
lam Whiteway. Being asked for whom he APP
neored no at first said L" for the Queen, in his
canaeitv Of Attorney-G General" The Court, how
ever disallowed this, as Her Majesty was not a
party in the suit: and then he declared that he
appeared for Sir Baldwin Walker.
Sir lanes Winter opened the case Tor the PLAIN
tiff and spoke for three hours and a nall Ills
address is pronounced on all hands TO have been n
mosterniece-one of the most brilliant ana abe
forensic efforts ever witnessed in our law courts
exhibiting q complete mastery OF the wAole SUI
iect. In opening the case he sad that nc anu ni'
Greene appeared for the plalntlff IN support Vi or
iectjons taken upon points of law TO the ueleh"-
ants plea. 1t was an ordinary action OF trespaSs'
complaining that the defendant wroheluHS e"-
tered the plaintiffs messuage and premises sl'u-
ated at Fishels River, in st. Georges bay anu
took possession of the plaintiffs lobster factory
etc. and prevented plaintiff from carrying Ii us
business. and still holds and retains possessioh Vi
said factory The plaintiff claimed damages.
The defence, Sir James said, sets OUT tnaV !"
the defendant, as senior officer OF Iier NaJcs'S .
sbine emnloved on the Newfoundland fisheries, was
committed by the Lords of the Admiralty ny
command of Her Majesty. the care and charge OF
DutVln2 IL IOJCC OnN SIZE
mont. embodied in a modus vivendi, for a LOBSTER
fsbprv in Newfoundland, which, as an act ana
matter of State and public policy, had peeh ell
tered into by Her Majesty with France lha'
The said modus vivendi provided that on inc
so-called French shore no lobster factories not III
oneration on July L, 1889, should DC perhlC""'
eycept by the joint consent OF the conln"Lue1'
Of the British and French naval stations lho'
the said lobster factory was not III opeIa'oh vi
that date. and was without the consent aioiesii"'
and that its use and working Deln9 proHipl'e"
nv the said mOdus vivendl, ana pelng Ill c'hti"0
yention to its terms, the defendant LII Oe "A'
charge of his duty, after notice OF MS lh'en'ion ~
do e. took nossession of the lobster factory, etc
That such taking possession, ETC., were uohe Al
defendants public political capacity, ana IN eNer-
ciea of the powers and authorities, and IN per-
1ormonce of his duties. and were acts and matters
of State done and performed under the PROVISIONS
90 tho said mOdus vivendi; that his action mas
bean annroyed and confirmed by Her Majesty as
snch act and matter of State and oil puohc policS,
as being in accordance with his lnstructoho' "n"
defendant therefore submits that the nia''eIs
Get forth in his statement of defence were ac'S
and matters Of State arising ont OF the poiitlcaI
relations between Her Majesty's Government ana
the Government of France; that they lnVolVeu
the construction of treaties and of the sald mou'S
yiyendi. and are matters which cannot DC inquirer
into by our court"
Sir James said The plaintiffs reply IS Two
roId-frst. as to matters Of fact with when inc
argument had nothing to do; and secondly' as 10
matters of law. Exception had been taken py
tho nlaintiff 70 the defence on six different points,
ond no would deal with tie three concluding
roints first. These were (No. ~ that the actloh
Of the defendant was not an act OF State aho
nubGc policy, and could not be an act Oh ouate
No n that the alleged authority from iier MI
;cstv and subsequent confirmation by her Majesty
arordrd no justification TO defendant, ana NO. o.
Cit tho ALLEGED authority from Her Majesty and
tho subsequent confirmation by her 90 hoo TAKE
avav the authority and jurisdiction o1 'he couf
~ 70 inouire into and adjudicate upon the acVs Vi 'n'
%, defendant r
On the first of these points Sir James coh
tended that an act Of State was an aU ol 'e
whole State, of which the sovereign lolmeu q
nov, and no court in the realm had power u
r., -, ;rdoment ON il. If the defendant rested
his case on the allegation that the act complained
If was an act of State, the plaintiff was perfectly
conten. because no such act could be an act ="
S,ate The defendant could not commit an ac
of State AGAINST the plaintiff. No act Oh Stat
copld control the right OF private prop
er,v which exists between one BRUSH suoJec
O.. ,noc..r. Neither could the Queen hefsei
commit an act of State toward one OF her OWE
subjects if that act is not authorized by Ia"
The defendant says his act was an act Oh o'a'e
and that that would relieve him from all us con
someone's. lie does not say that the queen II
the exercise of her prerOgative right cominohueo
him to do this act. If he did, that would amour
to a plea of justification; but TINS was " pi.a :.
The jurisdiction of the Court, not OF Iustlllcauoh
not that the Queen had power to give tnS con-,
mand. NOT that the command was given by legal
authority. but it rested simply and solely on The
fact that the act was authorized and subsequently
confirmed by the Queen.
Sir James went on TO argue that the defence
WAS confusing, because it contained two con
sicting allegations or grounds of defence. The