AKGUMENT OF SAMUEL J. ELDER. 1493 



" Your telegram 15th September. You should inform your Min- 

 isters arrival of ' Gresham ' 



That was a United States vessel going on the coast 



renders it essential for you to publish Order in Council unless they 

 are prepared to accept modus vivendi, and you should ask for an 

 immediate reply, which you will at once send to me. Your Ministers 

 should clearly understand that in the event of unfavourable reply 

 His Majesty's Government will have no alternative but to at once 

 publish Order in Council, a course which, though inevitable, is to be 

 regretted, and the responsibility for which will, in the circumstances, 

 rest on your Government. 



"If in the meantime fishing ships arrive you must, in order to 

 avoid greater complications, publish without further instructions." 



Governor MacGregor replies, p. 1021, on behalf of his Ministers. 

 The second paragraph repeats the objections which have been made 

 by the Prime Minister and says : 



" their answer is that modus vivendi is not necessary 



because of the undertaking of this Government to revert to the status 

 quo prior to 1905, thus giving to the Americans all the privileges 

 hitherto enjoyed by them on the Treaty Coast. 



" Promulgation of Order in Council would practically destroy case 

 of this Colony before the Hague Tribunal as furnishing argument 

 that the law of Newfoundland is not binding on Americans. My 

 responsible advisers refuse to accept any responsibility for Order in 

 Council which cannot be with justice put on them. To assist His 

 Majesty's Government ameliorate embarrassing position they pro- 

 posed reference to Hague Tribunal, and also a temporary working 

 arrangement to lawfully give Americans the privileges they had 

 before this dispute. My responsible advisers cannot be parties to the 

 modus vivendi, and they protest against the promulgation of the 

 Order in Council. They are advised by Attorney-General and Eng- 

 lish Counsel that Order in Council is not operative against the law of 

 the Colony. Order in Council cannot grant any new right or immu- 

 nity. His Majesty's Government appear to overlook that my respon- 

 sible advisers undertake to place Americans in precisely the same 

 position as they occupied in 1905, thus making the modus vivendi 

 and Order in Council unnecessary. Whether Order in Council is 

 published or revoked, my responsible advisers will issue lawful 

 authority to the local fishermen on the Treaty Coast to sell fish to 

 Americans and others as heretofore, thus removing any possible 

 grounds of complaint so far as Americans are concerned and at the 

 same time upholding the law of this Colony." 



On the 26th September, as appears at p. 1022, the definite order is 

 given to promulgate the Order : 



" In my telegrams of the 23rd of September, I informed you that 

 the refusal of your Ministers to accept the modus vivendi left His 

 Majesty's Government no option but to instruct you to publish the 

 Order in Council of the 9th of September, and I accordingly in- 

 structed you to publish it in the next issue of the Newfoundland 

 ' Royal Gazette.' 



