ARGUMENT OF SAMUEL J. ELDER. 1585 



THE PRESIDENT: Then is it possible that the Tribunal can pro- 

 nounce concerning the exercise of a privilege, as to which it has 

 not been asserted how it is established, and to what extent it is 

 established ? 



MR. ELDER : Precisely, Sir. 



THE PRESIDENT: Is it possible to pronounce as to whether persons 

 are entitled to exercise a privilege, as to which it has not been asserted 

 how it is established, and to what extent? 



MR. ELDER : We think it goes even further than that, if the Presi- 

 dent pleases. We say that under this question it is conclusively as- 

 sumed that some commercial privileges have been accorded to the 

 United States under the language which I have quoted several times, 

 " the commercial privileges on the treaty coasts accorded by agree- 

 ment or otherwise to United States trading-vessels generally." If 

 the Tribunal were called upon to interpret the Order-in-Council, 

 and the Act under which the order was issued, to interpret the Act 

 of the United States, and the Proclamation of the President which 

 followed that, as well as these amplifications to which Mr. Bayard 

 referred, " in the interest of propinquity," then it would have a most 

 serious burden placed upon it. If that was to be the question, those 

 statutes would have to be announced to the Tribunal. The President, 

 I think, will see that " accorded by agreement or otherwise " does 

 not call upon this Tribunal to search for agreements, and to search 

 for the meaning of the word " otherwise " or to determine about the 

 commercial privileges. Those are assumed. And, as I said, the 

 question is more wide-reaching than that. The question is whether 

 fishing-vessels are entitled to exercise commercial privileges on the 

 treaty coasts which have been accorded in some way or other, or 

 which may hereafter be accorded. It is solely a question of the 

 relation of fishing-vessels to commercial privileges, as interpreted 

 by the treaty of 1818, and we should contend, and do contend, that 

 the question, when answered, will be of service as to future com- 

 mercial privileges granted. Of course, the grant of future commercial 

 privileges may be restricted, it may be provided that commercial 

 privileges shall not be exercised by six-masted schooners or by tur- 

 bine steamers, or by fishing-vessels, but with that, of course, you 

 have nothing to do. The word " generally " is the one that is used 

 at the end of the sentence. So far as we get commercial privileges in 

 the future, or have them now, is there anything in the treaty of 1818, 

 or the fair intendment of it, which prohibits American fishing- 

 vessels ? 



SIR CHARLES FITZPATRICK: Your contention is that when United 

 States fishermen are on the treaty coast, in the exercise of their 

 treaty privileges, they are free, in addition, to exercise their com- 



