ARGUMENT OF SAMUEL J. ELDER. 1481 



" That convention was held in abeyance for some considerable time 

 by the I oreign Relations Committee of the United States of America, 

 but m the year 1904 it was reported by that committee to the United 

 States Senate, where it was virtually amended out of existence at the 

 instance of the fishery interests of Gloucester." 



At p. 470 he recites again that the Americans obtained bait by 

 purchase, the next paragraph but one to the last on that page: 



"The method adopted by American fishermen of conducting the 

 herring fishery on the west coast of this colony had ever been by pur- 

 chase or barter. The Bait Act, as it stood, enabled us to prevent a 

 continuation of that practice " 



The Tribunal will remember that is the Act of 1887 



" but the government appreciated that the Americans would attempt 

 to overcome the difficulty occasioned by the enforcement of the Bait 

 Act by engaging local fishermen to form part of their crews and to 



catch the fish they required. It was for the purpose, then, 

 895 of preventing this evasion of the spirit and intention of the 



Bait Act that the clause that I have referred to was inserted 

 in the act of 1905." 



At the bottom of p. 471 he still further criticises the modus 



vivendi : 



" The machinery for a complete control over our own people so as 

 to prevent them from aiding the Americans in catching such fishes 

 was thus provided by this legislature, but this machinery was ren- 

 dered inoperative by the modus vivendi and its promulgation by the 

 senior British naval officer on this station." 



He calls the modus vivendi an extraordinary diplomatic arrange- 

 ment, and the criticism runs on to p. 472, in which there is a repeti- 

 tion of the charge that it was contrary to the spirit of their consti- 

 tution : 



" It has been exceedingly distastefiil and painful to my colleagues 

 and myself to oppose the action of His Majesty's Government, and 

 it was only a firm belief in the truth of the maxim 'He serves the 

 King best who directs his endeavours to the preservation of the rights 

 and privileges of the King's subjects ' that nerved us for the per- 

 formance of the very unpleasant duty that developed upon us as 

 ministers of the Crown. We regard the modus vivendi as oppressive, 

 as well as subversive of the constitutional rights of His Majesty's 

 subjects in this colony. For us, therefore, to passively bear with 

 oppression committed within the radius of our jurisdiction would 

 be, in -truth and reason, for this government to be an accomplice in 

 the abuse." 



At the bottom of p. 499, after he had been discussing again, as I 

 lecall it, the American right to the bays on the west coast, he goes 

 on to explain what learned counsel in this case will have to explain 

 if Question 6 is further argued: 



"I have seen an attempt made to argue that the terms of the 

 Washington Treaty and the Treaty of 1818 were identical, and that 



