ARGUMENT OF SAMUEL J. ELDER. 1469 



" ' With reference to your telegram of 23rd instant, my responsible 

 advisers desire to say that in the opinion which they have expressed 

 respecting the subversion of constitutional rights and over-riding of 

 colonial statutes they are supported by the opinion of the Minister 

 of Justice and of learned counsel of high standing in England, and 

 they propose, in accordance with the advice of said counsel, to test 

 the question as to whether the modus Vivendi can over-ride existing 

 legislation of the Colony by taking legal proceedings against colonial 

 fishermen who have engaged themselves and proceeded in violation 

 of the law to prosecute the herring fishery.' " 



On the 30th October, in the House of Commons, inquiry was made 

 of the Government, which made reply as appears on p. 348 : 



" Mr. Churchill, in reply, said : ' The agreement to which I under- 

 stand the honourable Member to refer is a temporary arrangement- 

 intended to avoid the occurrence of untoward incidents during a 

 discussion which has become necessary in consequence of action which 

 the Colonial Government has taken in spite of the representations of 

 His Majesty's Government. The usual course has been followed in 

 regard to this temporary agreement of consulting the Colonial Gov- 

 ernment at every step ; but the ultimate responsibility for the action 

 taken by Great Britain in order to give eifect to her treaty engage- 

 ments with foreign powers necessarily rests upon His Majesty's Gov- 

 ernment.' " 



On the 30th October of that same year, instead of the publication 

 of the modus, so that fishermen could know, and Americans coming 

 to the coast could know, what rights they had, there was a publica- 

 tion of a notice of the old Bait Act, without giving any date for the 

 Act itself. That appears at pp. 348 and 349 of the Appendix to 

 the Counter-Case of the United States. 



The confusion caused to fishermen on that publication is pointed 

 out by Captain Anstruther at a later page, the letter beginning at p. 

 361 of the United States Counter-Case Appendix. 



On the 9th November of that year Lord Elgin makes a reply to 

 Governor MacGregor concerning the matters which have been called 

 to his attention (United States Counter-Case Appendix, p. 352) : 



" Your telegram. 3rd November. As your Ministers are well aware, 

 the Modus Vivendi was arranged with a view to the prevention of 

 action which would embitter the discussion proceeding between His 

 Majesty's Government and the Government of the United States 

 as to the proper meaning of the treaty of 1818 a discussion rendered 

 inevitable by the policy of your Ministers. 



" With full knowledge of these facts your Ministers have delib- 

 erately decided to take action which may immeasurably increase the 

 difficulty of the task which Newfoundland has imposed upon Great 

 Britain. In these circumstances I have to inform your Ministers 

 that, in endeavouring to frustrate the purely temporary measures 

 which His Majesty's Government consider most likely to lead to a 

 successful termination of the negotiations with the United States, 

 they incur a grave responsibility which His Majesty's Government 

 decline to share. His Majesty's Government will endeavour in the 



