1474 NORTH ATLANTIC COAST FISHERIES ARBITRATION. 



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

 to whether the arrangement concluded by His Majesty's Government 

 is subversive or othenyise of the constitutional rights of the Colony ; 

 or whether any constitutional rights of the Colony can legally or 

 expediently 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 expedi- 

 ency, and I feel confident that the experience and judgment of the 

 Members 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 

 Majesty's Government. 



" 2. The minute of Committee of Council of the 25th October 

 communicated 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 

 approval 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 pro- 

 ceedings 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." 



He goes on to point out other things in the action of the Council 

 which he cannot approve. I am not going into the detail of this con- 

 troversy of this and the following year, but will call attention here 

 and there to indicative passages. 



On the 9th November, as will be seen in the United States Coun- 

 ter-Case Appendix, at p. 352, Lord Elgin sends this cable to Governor 

 MacGregor : 



" 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 



891 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 vour 



-..-., * j j 



Ministers. 



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

 ately 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, 



