26 COUNTER-CASE OF GREAT BRITAIN. 



In pursuance of the modus vivendi, the second clause of the Order- 

 in-Council of 1907 provided as follows (United States Case, p. 75) : 



" U. If any question should arise before any Magistrate, Justice of the 

 Peace, Judge or Court in Newfoundland, in relation to, concerning, or in 

 anywise in respect of the presence on board any such vessel of any 

 caplin, squid, or other bait fishes, or of ice, lines, seines, or other out- 

 fit of supplies for the fishery, the burden of proof that the said bait 

 fishes and supplies and outfits have been purchased within the waters 

 of Newfoundland shall rest upon the person or persons alleging the 

 same." 



So far from this clause having been designed 



"to prevent British subjects from interfering with American fisher- 

 men " 



its purpose was merely to change the onus of proof in case of prose- 

 cutions of American fishermen for disobedience to Newfoundland 

 statutes regulative of their conduct. The Order-in-Council recog- 

 nised the validity of interference with American fishermen, but 

 modified the procedure. 



The third clause of the Order-in-Council of 1907 provided 

 32 that no legal proceedings should be served upon certain Ameri- 

 can vessels, and that such vessels should not be seized 



"without the consent of His Majesty's Senior Naval Officer of the 

 Newfoundland station." 



This clause also, therefore, recognised the amenability of American 

 fishermen to British regulations. 



Indeed the Order-in-Council of 1907 was altogether opposed to the 

 contention of the United States. It expressly recognized that the 

 Colonial Act applied to American fishermen. And it was because the 

 Colonial Act did so apply that the Order-in-Council was made. It 

 was decided to modify for a time the enforcement of a Newfound- 

 land Act, in order to give effect to the modus vivendi which had 

 been agreed to by the two nations, and it was thought convenient 

 to do that by Order-in-Council. The enforcement of the Act was 

 not, however, prohibited. It was limited in certain respects, and in 

 other respects was made subject to conditions; except for those limi- 

 tations and conditions the Act remained in force. 



ABGUMENT. 



It is submitted that the following points are clear : 

 1. The United States argument as to the interpretation of the 

 treaty is too indirect. It points to the very limited nature of the 

 Order-in-Council which directed the colonial authorities to give no- 

 tice not to interrupt United States fishermen when exercising their 

 treaty privileges. From that, it argues the meaning of the British 

 statute, by assuming that the statute authorised nothing but what 



