1496 NORTH ATLANTIC COAST FISHERIES ARBITRATION. 



SIR CHARLES FITZPATRICK: Upon one side there was practically a 

 prohibition of the import of fish and on the other a prohibition of the 

 export of fish. That is what all these alleged drastic measures appear 

 to have grown out of. That seems, from what you have said this 

 morning, to have been the controversy. 



MR. ELDER: It seems to us, sir, that it is very much broader than 



that, but I am very happy to inform you that my province does not 



permit me to take up the question of these regulations or to point 



out the ways in which we believe they trespass upon 



904 the rights of American fishermen. I can finish this statement 



before the hour of adjournment. 



On the llth September, 1907, there appeared the interview of Sir 

 James Winter in London, in which he calls attention, p. 406, United 

 States Counter-Case Appendix, to the mis-statement of Sir Robert 

 Bond with regard to the effect of the decision in the Dubois case, 

 it being claimed by the Prime Minister that the treaty rights and 

 the effect of Newfoundland statutes had been upheld by a decision of 

 the Court. Sir James Winter says: 



" There is another mis-statement which has found currency. It is 

 that the Supreme Court of the Colony has decided against the Impe- 

 rial Government on the question of the modus vivendi. That state- 

 ment is entirely untrue. The modus vivendi was not brought before 

 the Court at all, although, if it had been pleaded, I do not know what 

 decision would have been given. The point at issue could have been 

 tried against any fishermen in any part of the Colony, whether he 

 was on board an American vessel or not. The exact point was upon 

 the construction of our own Statute, and the men were sentenced for 

 an act which has never been treated by any Government or prosecutor 

 as an offence. It was simply a question of putting herring on board 

 without a license. It is entirely incorrect to say that the Americans 

 made this a test case or that they defended the prisoners." 



The paper, however, adds, as quoted at p. 407 : 



" Sir James Winter's opinion that it is ' another mis-statement ' to 

 say that the Supreme Court of Newfoundland decided against the 

 Imperial Government on the question of the modus vivendi has to 

 be reconciled with the following passage of Sir Robert Bond's 

 speech at the Imperial Conference: 



" * With the validity of the modus vivendi of 1906 I do not propose 

 to deal. Suffice it to say that the Supreme Court of Newfoundland 

 has decided that it could not over-ride local statutes as intended.' " 



In 1908, as appears on pp. 49 and 50, United States Case Appen- 

 dix, Newfoundland undertakes that the herring fishery shall fie 

 conducted on the same terms as last season that is, under the modus. 

 There is one thing that I want to call attention to, and it is to be found 

 on p. 50, at the end of Mr. Whitelaw Reid's letter to the British 

 Foreign Office, 23rd July, 1908, as to this question of the modus: 



" I am glad to add that Mr. Alexander of the United States Fish 

 Commission, will be sent again this year to the treaty shore, and 



