PERIOD FROM 1888 TO 1909. 243 



His Majesty's Government invite the co-operation of your Govern- 

 ment in carrying out the Order and have instructed the iSenior Naval 

 Officer on the station to render them every assistance in maintain- 

 ing the law of the Colony as modified by the Order. They will be 

 prepared to revoke or modify its provisions immediately a satisfac- 

 tory arrangement is made oy the Colonial Government with the 

 American fishermen as contemplated in the modus vivendi, or the 

 modus vivendi is accepted by your Government. 



His Majesty's Government feel compelled, however, to place on 

 record their deep regret that they should have had no alternative 

 in consequence of the action of your Ministers but to avail themselves 

 of the legal powers conferred on them by the Act 59 Geo. III. 



His Majesty's Government recognise to the full the inconvenience 

 caused to the Government of Newfoundland by the treaty obhga- 

 tions binding upon it, but these obhgations were not created by His 

 Majesty's Government, and in 1904 tliis country made no inconsider- 

 able sacrifice of territory and money in order to reduce the pressure 

 of French treaty rights. I may remind your ^linisters that in this 

 case the Government of Canada have, in order to meet their wishes, 

 consented to share in the arbitration, although they have alread}^ 

 obtained a friendly understanding with the United States. His 

 Majesty's Government consider, therefore, that they were entitled to 

 expect your Government's co-operation in arranging a new temporary 

 modus vivendi pending the decision of the Arbitral Tribunal to 

 which, in deference to your Government's ^^^shes, the whole question 

 is shortly to be referred.'* 



The order in council referred to in the above telegram is the same 

 order which is discussed at page 74 of tliis Case, where it is shown 

 that the act, under wliicli it was made, authorizes the adoption of such 

 orders ''as shall or may be from time to time deemed proper and nec- 

 essary for carrying into effect the purpose of said Convention [1818] 

 ^\'ith relation to the taking, drying and curing of fish by the inhab- 

 itants of the United States of America, in common ^\■ith British 

 subjects, within the limits set forth in the said Article of the said 

 Convention and heretofore recited." 



The promulgation of this order in council-seems to have been tem- 

 porarily postponed at the request of the Newfoundland Government, 

 and on September 21, 1907, the Governor of Newfoundland tele- 

 graphed to Lord Elgin a resume of a minute from his ministers, from 

 which the folIo%ving extract is taken: 



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 responsibihty for Order in 



« Appendix, p. 1018. 



