244 CASE OF THE UNITED STATES. 



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

 Majesty's Government amehorate embarrassing position they pro- 

 posed reference to Ha^ue 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 

 English Counsel that Order in Council is not operative against the 

 law of the Colony. Order in Council cannot grant any new right or 

 immunity. His Majesty's Government appear to overlook that my 

 responsible 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." 



In reply to this telegram Lord Elgin telegraphed to the Governor 

 of Newfoundland on September 23, 1907, as follows: 



Your telegram 20th September. His Majesty's Government have 

 received with great regret the refusal of your Ministers to cooperate 

 in carrying out the modus vivendi, which leaves His Majesty's Gov- 

 ernment no alternative but definitely to instruct you to pubHsli the 

 Order in Council. This step should, therefore, be taken at once. 



The points raised by your Ministers will be dealt with by despatch, 

 but I think it right to warn them that His Majesty's Government 

 cannot support them in any attempt to enforce the service of process 

 on American vessels, and that the Senior Naval Officer on the Station 

 has been so instructed. 



While taking the necessary steps to promulgate and legahze the 

 modus vivendi, you will understand that His Majesty's Government 

 will gladly welcome any friendly arrangement which can be made 

 to facilitate the fishery as between your Government and the Ameri- 

 can fishermen provided the pledges given by His Majesty's Govern- 

 ment to the United States Government are fully safeguarded. Indeed, 

 you may be able to suggest such an arrangement yourself, and your 

 good offices would, no doubt, be greatly appreciated.^ 



Newfoundland's proposed new construction of the Treaty. 



Although Great Britain has never by word or act, tliroughout the 

 entire liistory of this controversy, questioned the right of the inhabit- 

 ants of the United States under the treaty of 1818 to take fish in the 

 bays and harbors on the southern and western coasts of Newfound- 

 land, which form part of the so-called treaty coasts, and although such 

 question has never been raised or even mentioned in any of the dis- 



a Appendix, p. 1021. b Appendix, p. 1022. 



