ARGUMENT OF SAMUEL J. ELDER. 1491 



have presented that contention here. I trust they will be the first to 

 forgive me for saying that it seems to me that their position is some- 

 thing like that of General Marston, of our State of New Hampshire, 

 a most distinguished and admirable lawyer, who was engaged to 

 prosecute a case in some portion of which his legal judgment did not 

 give him confidence, but his associates were so insistent that the ques- 

 tion should be presented that he did present it. It happened to 

 901 come before a newly appointed judge, who afterwards became 

 the distinguished Chief Justice of New Hampshire, Chief 

 Justice Carpenter, known, I am confident, to two of the members 

 of this Tribunal. General Marston made the best and most ad- 

 mirable presentation of the question he could possibly make, but at 

 some pause in his oratory the judge said, " I suppose, General 

 Marston, there is no man in the State of New Hampshire who knows 

 better than you do that that is not law." " Well, yes, yes, yes, but I 

 could not tell what view your Honour might take of it," 



The attempted arrangement with Sir Robert Bond failing, the 

 modus was arranged, as appears by United States Case Appendix, 

 pp. 48 and 40. Then it became necessary to apply the strong hand. 

 Newfoundland had been recalcitrant, it was proceeding against the 

 Government, and it did not concur in the modus vivendi. The cor- 

 respondence discloses the situation. On the 9th September, an Order- 

 in-Coimcil was adopted by which the Act of 1905 was in substance 

 vacated (United States Case Appendix, pp. 117-118). 



The Order-in-Council begins on p. 117 of the Appendix to the 

 Case of the United States, and the material parts are upon p. 118. 



It is interesting to observe that this is the first Order-in-Council 

 issued by His Majesty in Council under the provisions of the Act of 

 1819, after the Order-in-Council passed in that year, and in terms and 

 substance it covers the same field ; that is to say, it was an Order-in- 

 Council prohibiting, as the Order of 1819 had done, His Majesty's 

 subjects from interfering with American fishermen on the treaty 

 coasts. 



Reading from p. 117 : 



"And whereas His Majesty by and with the advice of His Majesty's 

 Privy Council deems it proper and necessary for the carrying into 

 effect the purposes of the said Convention, to give further directions 

 with relation to the taking, drying, and curing of fish by the inhabi- 

 tants of the United States of America in common with British sub- 

 jects on the coasts of Newfoundland: 



" Now therefore, His Majesty, in pursuance of the powers vested 

 in His Majesty by section 1 of the Act 59 George III., cap. 38, by and 

 with the advice of His Majesty's Privy Council is pleased to order 

 and it is hereby ordered as follows : 



" I. No provisions, rules, or enactments which may be in force with 

 regard to the boarding and bringing into port of foreign fishing 

 vessels found in the waters of Newfoundland shall, within the limits 



