350 MISCELLANEOUS 



the close and earnest attention of His Majesty's Government, in the 

 anxious desire to give effect to them as far as the foreign relations of 

 the Empire made this practicable. 



(b.) I must refrain from committing myself to any opinion as to 

 whether the arrangement concluded by His Majesty's Government is 

 subversive or otherwise of the constitutional rights of the Colony; or 

 whether any constitutional rights of the Colony can legally or expe- 

 diently nullify or neutralise the arrangements that His Majesty's 

 Government finds it necessary to enter into with foreign nations in 

 the interests of the Empire as a whole ; for I cannot fail to recognise 

 the fact that this question has another aspect than that looked at 

 from the point of view of constitutional rights in a rigid legal sense. 

 There is the important consideration of Imperial or public expediency, 

 and I feel confident that the experience and judgment of the Mem- 

 bers of the Executive Council of this Colony will enable them to 

 concur with me that this factor in the problem is a weighty one, and 

 one that must of necessity be most carefully considered by His Maj- 

 esty's Government. 



2. The Minute of Committee of Council of the 25th October com- 

 municated to the Secretary of State by telegraph on the 26th October. 



(a.) In this Minute the Committee of Council express the inten- 

 tion of taking legal proceedings against Colonial fishermen that have 

 engaged themselves to Americans for the herring fishery. As the 

 modus vivendi seems to me to pledge His Majesty's Government to 

 the Government of a foreign Power that such engagements shall not 

 be penalized, I am not able, without instructions, to subscribe ap- 

 proval to this proposal. 



I understand that the proceedings proposed would be confined to 

 Colonial fishermen, and I entertain no doubt that in the action 

 taken American subjects and property would be left unmolested. 

 But even with that reservation I cannot but see that the effect of such 

 proeedings might be very embarrassing to His Majesty's Government 

 in conducting the negotiations now pending with the Government of 

 the United States, and it is on this ground that I have concluded that 

 I should not give an unqualified approval to this Minute without 

 being authorised by the Secretary of State to do so. 



(b.) At the same time I cannot forget the fact that it is only fair 

 to these fishermen, whose loyalty to the Empire is genuine and in- 

 tense, to believe that they have acted in good faith in engaging them- 

 selves in a way that they regard as permitted and allowed by an ar- 

 rangement entered into by His Majesty's Government, probaoly some 

 of them the same men that were similarly engaged last year at a 

 time when the law under which I understand they would be prose- 

 cuted was in force, and when the act of the men concerned was with- 

 out the sanction, which they doubtless regard as valid, of a modus 

 vivendi of whicn the Secretary of State has said in his telegram of 

 the 23rd October that His Majesty's Government " trust that your 

 Ministers will do what lies in their power to see that it is properly 

 observed." 



It is also a consideration with me that I do not at present know 

 how the proposed test would be carried out in practice so as to be of 

 value. From the fact that the Committee of Council deemed it 

 necessary to consult learned counsel in England, it is manifest that 

 the question to be tested is one of extraordinary legal complexity. It 



