ARGUMENT OF SAMUEL, J. ELDER. 1583 



is: whether as to the matter of commercial privileges now or here- 

 after accorded, there is anything in the treaty of 1818 which 

 958 justifies a discrimination by Great Britain against the inhabi- 

 tants of the United States who are exercising the liberty 

 accorded by that treaty. 



Before leaving the analysis of the question itself, I want to revert 

 to what the learned arbitrator, Sir Charles, called to my attention 

 yesterday, namely, the words "duly authorised" which I had mis- 

 applied. He called my attention to the fact that it was the com- 

 mercial privileges which the United States may " duly authorize " 

 the exercise of under the terms of the question. So that the ques- 

 tion gets back to one that we have discussed before. It is perfectly 

 clear that the United States has the power to authorize the exercise 

 of those privileges. We are now talking, of course, not with regard 

 to fishing liberties, but with regard to commercial privileges, and 

 the commercial privileges which have, under the question, been 

 accorded by agreement or otherwise, are ones of which the United 

 States can authorize the use. Now, suppose the United States au- 

 thorized a fishing-vessel to exercise those privileges. The question 

 is. whether there is anything in the treaty or in the nature and to be 

 inferred from the treaty of 1818 which enables Great Britain to say 

 that fishing-vessels shall not exercise the commercial privileges 

 which the United States has authorized them to exercise? We think 

 that is the exact question. 



Well, now, in the British Case at p. 127, Great Britain seemed to 

 have taken our view, in part at least, with regard to what this ques- 

 tion meant. It is on the page on which the question itself is. the 

 third paragraph : 



" Great Britain contends that American fishermen cannot claim, 

 as of right, to exercise any liberties in British territorial waters 

 unless those liberties were granted by the treaty of 1818; that no 

 commercial privileges were so granted;" 



Up to that point the situation is entirely relieved by what has 

 been over and over again said. The United States does not claim 

 that any commercial privileges were granted under the treaty of 

 1818. The latter part, however, of the British statement presents 

 the real question : 



" and that the exercise of commercial privileges by American fishing 

 vessels would be contrary to the intention of that treaty." 



Now the United States agrees that if it can be found that the ex- 

 ercise of commercial privileges is contrary to the intention of that 

 treaty, then the decision of this question should be against us. But 

 so far as I can now see and from the arguments which have been 

 addressed to this Tribunal, practically no such contention as that is 

 92909 S. Doc. 870, 61-3, vol 10 44 



