494 MISCELLANEOUS 



government did not give such instructions ; neither did they promul- 

 gate the modus vivendi in any manner whatsoever. They did not do 

 so because they had informed His Majesty's Government repeatedly 

 that they could not be parties to it in any way. They declined to aid 

 in carrying it out because they regarded it as unlawful and unjust 

 as an abrogation of our constitutional rights, and as overriding our 

 law and they proposed to test its validity in the supreme court of 

 this colony. On the 25th of October His Majesty's Government were 

 advised accordingly. 



The embarrassment occasioned this government by the announce- 

 ment of the conclusion of the modus vivendi was aggravated and 

 greatly intensified by the remarkable conduct of the senior naval 

 officer on this station. H. M. S. Brilliant arrived at Bay of Islands 

 on the 19th of October, and the same evening a meeting of the fisher- 

 men in Birchy Cove was convened on board that ship. At that 

 meeting the senior naval officer, Captain Anstruther, read to them 

 the note of ratification of the modus vivendi and discussed an agree- 

 ment that he proposed to bring about between the fishermen of the 

 two nations. Subsequent to that meeting he visited the Canadian 

 fishermen who were in the harbour, and afterwards Mr. Alexander, 

 who was on board the U. S. naval tug Potomac, as the representative 

 of the American fishermen, and drew up a form of agreement to 

 which he obtained the consent of " all the commodores of the Ameri- 

 can schooners." This agreement was made without consultation with 

 the governor of this colony, who, as comma nder-in-chief, is his 

 superior officer, or directly or indirectly with this government. 

 Under date 26th October, his excellencj 7 the governor communicated 

 this fact to me, and I immediately entered a protest with his excel- 

 lency against the conduct of the senior naval officer. I pointed out 

 to his excellency the seriousness of the incident that was referred to, 

 inasmuch as no authority was vested in Captain Anstruther to make 

 any agreement such as he had ventured upon. He had not merely 

 undertaken to interpret laws and treaties, but had assumed to make 

 an arrangement or international agreement, as appeared on reference 

 to the copy of the agreement which accompanied his excellency's 

 communication. I pointed out further that, even if this arrange- 

 ment could be regarded as declaratory of what is undoubted law, it 

 would still be objectionable and improper when issued by a naval 

 officer in his capacity as such, and especially so when proclaimed in 

 a harbour where a stipendiary magistrate resides. It would be ex- 

 ceedingly difficult to find any precedent for such a remarkable pro- 

 cedure. The ratification of the modus vivendi had just been an- 

 nounced to us by His Majesty's Government; it had just been pro- 

 mulgated by the senior naval officer on this station, and no sooner 

 was this done than without reference to either the governor or his 

 ministers a new agreement, or international treaty, or modus vivendi, 

 was entered into between His Majesty's senior naval officer on this 

 station and the representative of the American fishermen at Bay of 

 Islands. I pointed out to his excellency the governor that the agree- 

 ment was invalid and incapable of enforcement, the governor in 

 council, to whom under the law relating to marine and fisheries the 

 legislature had deposed authority, being the sole constitutional power 

 to regulate and control the fisheries of this colony. Naval officers 

 on this station derive all the authority they possess in relation to 



