1494 NORTH ATLANTIC COAST FISHERIES ARBITRATIONS 



" His Majesty's Government had no alternative but to take this 

 action in the absence of an undertaking by your Ministers to carry 

 into effect the terms of the modus vivendi, and in view of the fact 

 that, as your Ministers were informed in my telegrams of the 30th of 

 August and the 2nd of September, the Government of the United 

 States have declined to accept the proposal of your Government to 

 permit the sale of fish to American fishermen as a substitute for the 

 modus vivendi" 



At p. 1023 of the Appendix to the Case of the United States, Lord 

 Elgin makes some references to the surprise which Sir Robert Bond 

 had expressed as to the action of the Government and to the misap- 

 prehension on Sir Robert Bond's part, or the failure of memory, as 

 to conferences with him. He says : 



"I cannot enter into a discussion as to the validity of His Majesty's 

 Order in Council of the 9th of September, which was issued on the 

 advice of the Law Officers of the Crown, but I cannot for a moment 

 admit that the issue of an Order in Council shows that the law of 

 Newfoundland is not applicable to Americans. On the contrary, the 

 issue of an Order in Council is a formal and deliberate expression of 

 the view of His Majesty's Government that the law of Newfoundland 

 is binding on American vessels, and that no other means exist of pre- 

 venting the application of such provisions as interfere with the 

 modus vivendi than a formal alteration of the Colonial Law by a 

 competent authority, in this case His Majesty in Council under Sec- 

 tion 1 of the" Imperial Act of G. III., ch. 38." 



903 I have wearied the Court by going into considerable detail 

 in regard to the correspondence between Newfoundland and 

 Great Britain concerning the relations with the United States, and 

 I have done so because it seems to me to afford one of the best ex- 

 amples of the futility of the hope expressed by Sir Robert Finlay 

 that American rights would always be preserved by the usual, the 

 decorous and the orderly manner of the passage, and the putting into 

 effect of laws in Newfoundland. He believed, in the first instance, 

 as I recollect it, that the presumption that a colony like Newfound- 

 land would exercise wisely and without discrimination its power to 

 legislate could be relied upon, but failing that, the duty reverted, and 

 must revert to the Home Government to determine and to pass upon 

 the fairness and justice of legislation, and finally, there was the 

 power of the Order-in-Council by which legislation, once passed and 

 put into force, might be put an end to. Well, it may be that, in the 

 end, this would work out our salvation, but it is a long course in 

 that direction. The Tribunal will remember that ordinarily the only 

 way to test this question is to arrest some captain or to seize some ship 

 and to try the case in a local court. Then, upon his remonstrance to 

 the Home Government begins one of those long corridors of corre- 

 spondence between the two Governments, with the situation hope- 

 lessly no, I will not say hopelessly but with the situation affected 



