8 ORAL ARGUMENT OF SIR CHARLES RUSSELL, Q. C. M. P 



of December, 1891, and the ratification signed at Washington Febru- 

 ary, 1892; and ratifications exchanged on the 7th of May, 1892. 



General Foster. — The Agreement was signed in December. 



Sir Charles Russell. — I have just said so. 



General Foster.— No ; you used the word "Treaty", I think. 



Sir Charles Kussell. — You mean they were put together, and not 

 in one document before? That is quite right. 



Now I seriously submit, Mr. President, that in view of that corre- 

 spondence in June 1891, from which I submit there has been no depar- 

 ture up to the time of the Treaty, that the actual area in dispute — the 

 only subject matter to which the contest and correspondence related, 

 were the eastern waters of Behring Sea and the eastern waters of 

 Behring Sea only. In the same argument to which I have already 

 given you the reference I also pointed out how the modus vivendi in 

 the Ai)ril of the following year, 1892, supports this contention. I 

 pointed out by article V the question of damage or claim for compen- 

 sation by the United States on the one hand if its rights should be 

 affirmed by Great Britain, and, on the other, if the United States 

 rights should not be affirmed, was confined to the abstaining from the 

 exercise of the right of taking seals in Behring Sea, and did not extend 

 beyond Behring Sea, and in view of this conjunction of circumstances, I 

 submit that up to this time — in the correspondence at least — it is demon- 

 strable that both parties to these negotiations were ad idem as to wliat 

 was the matter in contest between them, and that was Behring Sea 

 and Behring Sea only. Aiter this correspondence and when we get to 

 March 1892 — I think it is the only other reference that I shall have to 

 make — there is a letter from Mr. Wharton to Sir Julian Pauncefote at 

 page 350 of the first volume of the Appendix to the Case of the United 

 States, in which he says: 



I am directed by the President to say in response to your two notes of February 

 29th, and March 2ud, that he notices with the deepest regret the indisposition of Her 

 Majesty's Government to agree upon an effective modus for tlie preservation of 

 the seals in the Behring Sea, pending the settlement of the respective rights of that 

 Government and of the Government of the United States in those waters and in the 

 fur-seal fisheries therein. 



Then follows this very exiilicit passage : 



The United States claims an exclusive right to take seals in a portion of the Beh- 

 ring Sea, while Her Majesty's Government claims a common right to pursue and take 

 the seals in those waters outside a three-mile limit. This serious and protracted 

 controversy it has now been happily agreed shall be submitted to the determination 

 of a Tribunal of Arbitration, and the Treaty only awaits the action of the American 

 Senate. 



Now leaving this to my learned friends, approaching this matter as 

 they will do with completely fresh minds, because they have not dis- 

 cussed this as I did in discussing the true construction of question 5, 

 I pass on with one or two observations, which indeed become more 

 pointed now that we have heard the suggested scheme which I will 

 not at this moment characterise, gravely presented by the Agent of the 

 United States in the person of my friend General Foster, who proposed 

 forsooth a scheme without limit as to time, not for the regulation of 

 rights upon the high seas, but for the extinction of rights upon the 

 high seas and without qualification, or without reservation going down 

 as well as I followe<^l it, for I have not yet read it to the 35° of latitude. 

 So that the scheme is from the Arctic Ocean. My learned friend. Sir 

 Eichard Webster, will trace the line of demarcation. 



[Sir Richard Webster did so]. So that while the area in dispute was 

 Behring Sea and the question whether we were there outside the ordi- 



