ARGUMENT OP SAMUEL J. ELDER. 1507 



So that, to begin with, we must get back, to get the real analysis 

 of the question, to the fact that the United States is the entity with 

 which this contract was made, and in which this right resides. In- 

 habitants of the United States, without the authorization of the 

 United States, have absolutely no power to exercise that liberty. 

 That I wish to come to later. 



There has been an interesting thing in the various arguments in 

 this Case quite constantly present. Our friends from Great Britain 

 still speak of the United States in the plural. They think of it as 

 a collection of States. They speak still of going out to " the States ;" 

 and they say the " States are," &c. We do not. We speak of the 

 United States in the singular. 



JUDGE GRAY : The Constitution speaks of it in the plural. 



MR. ELDER: Yes; but that period has gone a century and four 



decades; and the people have come to speak of it as a political 



entity. They speak of it as " the Republic." They speak of it 



as " the Sovereign State." They speak of it as " the Flag." 



911 Possibly a considerable philosophical treatise might be written 



on that change in attitude towards the recognition of Federal 



existence and power and recognition of the flag. 



The point is, however, that this right, under the treaty, resides in 

 the United States, and that the inhabitants, as such, and in their 

 own proper persons, cannot exercise the privilege. They must derive 

 that right from the United States. An American on board a Nor- 

 wegian vessel, or a French or Spanish vessel, is not entitled to fish 

 under this treaty. A vessel of one of those countries, Norway, for 

 instance, with a crew largely composed of Americans, cannot sail up 

 into those waters and say : " We have Americans on board this vessel ; 

 they have the right to fish over the side of this vessel for us, and we 

 to carry their catch to Norway." Instantly that right would be 

 challenged. And who could intervene? Certainly not the United 

 States, because the United States has never authorised a Norwegian 

 vessel to exercise the privileges accorded to the United States. 

 Clearly Norway could not, because Norway would have no treaty 

 relations on that subject with Great Britain. We must have a step 

 intervening before we reach the inhabitants of the United States, and 

 that is the authorization by the United States of the right to exercise 

 the liberty. 



I should like to revert for a moment, because this point is not new, 

 to a passage in Sir Robert Finlay's argument at p. 222, when Judge 

 Gray asked : 



"JUDGE GRAY: Is the nationality of the fishing vessel a matter of 

 absolute indifference to the Colonial authorities ? 



" SIR ROBERT FINLAY : Under the treaty the right is conferred on 

 inhabitants of the United States. It is a personal right 



