ARGUMENT OF SAMUEL J. ELDER. 1575 



Of course it will be conceded that a port is in a harbor, or it is in 

 a bay. 



In 1904. in the correspondence between Great Britain and the 

 Government of Newfoundland concerning that treaty with France 

 of 1894, a despatch was sent to Newfoundland, received the 12th 

 April, 1904 (United States Counter-Case Appendix, p. 337), and 

 they were told, in substance, of the text of the proposed treaty with 

 France. And under date of the 15th April, 1904, Governor Boyle, 

 the Governor of Newfoundland, cabled to the Home Office (p. 338, 

 Appendix to Counter-Case of the United States) : 



J' Ministers request me to state that if the right of the people of 

 this Colony to its fisheries throughout the year is not preserved, 

 they cannot approve the arrangement. If British fishermen were 

 prohibited from the Winter Fishery under Convention or other in- 

 strument, does not His Majesty's Government realize that the whole 

 winter fishery would be in the hands of Americans by virtue of 

 Treaty 1818, and British subjects must find themselves in most in- 

 vidious and ruinous position. Ministers must press that close season 

 shall only apply to concurrent right of French fishermen." 



This recognizes distinctly that if by a treaty with France they were 

 kept out, while the French fishermen were, the herring fishery on 

 the west coast in the winter would go to the Americans; and the 

 herring fishery is wholly, of course, in the bays, as appears over 

 and over again. 



There are one or two more considerations under Question 6 that I 

 will call to the attention of the Tribunal. I endeavoured in the sum- 

 mary which I made on Tuesday and yesterday morning to show 

 that Sir Robert Bond failed to convince either the British Govern- 

 ment or his own with regard to it, and that Great Britain never 

 presented this question to the United States until it was presented 

 for the purpose of this arbitration. 



It will be remembered that the citation from Vattel in the British 

 Case I will not take the time to read it says that if a construction 

 results in a manifest absurdity, it, of course, must be disregarded. 

 We submit and we might have rested our whole case so far as this 

 question is concerned on these three contentions that the construc- 

 tion contended for by Sir Robert Bond results in a manifest absurdity 

 in three particulars. 



In the first place, if it is true that the bays, harbors, and creeks of 

 Newfoundland on the west coast and south coast, and of the Magda- 

 len Islands, are not covered by article one of the treaty of 1818, they 

 are not covered anywhere by that treaty. The bays that were re- 

 nounced were the bays " not included with the above-mentioned 

 limits" that is, the treaty coast limits so the United States did 

 not renounce them, and according to Sir Robert Bond, the United 

 States did not get them ; and therefore those bays were left out by 



