ORAL ARGUMENT OF SIR CHARLES RUSSELL, Q. C. M. P. 181 



seal, uor any property iu the herd, what right in the natnre of a prop- 

 erty right is there in the industry carried on by means of the fur-seals 

 upon the Pribilof Islands? They say that in one way or other of 

 those three forms question 5 is addressed to the question of property: 

 either in seals, in the herd, or in the industry; and that the right of 

 protection there referred to is such right of protection as a nation may 

 exercise, according to international law, in defence of its property in 

 the seals, or in the herd, or in the industry founded upon them. 



Xow I think I have stated correctly the various modes in which their 

 suggestions are made. I shall consider those, and assume that they 

 are right in their construction of the meaning of the question, but I 

 have lirst to say that I dissent entirely from that as being the meaning 

 of the question. . I dissent from the suggestion that it is either the right 

 of property or the right of protection that is intended to be covered by that ■ 

 fifth question. Then I shall be asked, and properly asked, what is my 

 construction of that question? Does it mean property and right of pro- 

 tection in the fnr-seols frequenting the Behring 8ea u-herever those fur- 

 seals are to be found f 1 say, no. It is a question just like Questions 1, 

 2, 3, and 4, at the bottom of which is the assertion of exclusive juris- 

 diction; and therefore (I am now iiidicating the point, not arguing it: 

 I will justify it presently), that as the main volume and strength of their 

 case teas presented and is presented in the correspondence, 

 the property riqht indicated in Question 5 is the exclusive ^.^^^^^l*^^ raised 



• T -r 7 • 7 T. 7 • iv 7 • "y questioi) 5 is one 



right to take Jtir-seals m the Behring ISea; that is to say, of exclusive .juris- 

 a property right of an exclusive character in the fishery in gga!""^ ^° Beiirmg 

 the Behring tSea and not in the seals either as individuals or 

 as a herd, — in other uwrds, an exclusive right to talce fur-seals in Behring 

 Sea, to prevent anyone else talcing them in Behring ISea., — in other tcords, 

 the assertion of a property right of an exclusive character in the fishery 

 in Behring Sea, and not in the individual seals or in the herd. 



How is this position made clear"? In the llrst instance, the reference 



in the o])ening words of Article VII shew that the framers of the 

 937 Treaty designed to treat article V, like the preceding questions, 



as a question of exclusive jurisdiction, because the words of 

 article VII are : 



If the determination of the foregoing questions as to the exclusive jurisdiction of 

 the United States shall leave the subject in such position that the concurrence of 

 Gre;.;; I>ritain is necessary: 



Then the question of Eegulations is to arise; and it is not argued, 

 it could not be argued, therefore, that question 5, as it stands in this 

 Treaty, w;' i not intended to raise a question of exclnsive jurisdiction. 

 That exclusive jurisdiction would be the exercise of the right to which 

 I have already adverted, the exclusive right to take the seals in the 

 Behring Sea and, accompanying that right and in protection of that 

 right, exclusive jurisdiction in the eastern part of Behring Sea, for the 

 protection of that right. 



Now, how is that made apparent? I have referred to the language 

 of Article VII; I have now to refer to the 5tli article of the Modus 

 Vivendi of 1892. That Article deals with what is to be the effect on 

 the question of compoiusation sliould the right of Great Britain be 

 affi'-raed, or should the right of Great Britain to take seals be negatived. 



Senator Morgan. — You mean British subjects; not the Government 

 of Great Britain ? 



Sir Chakles Eussell. — Yes, certainly; I mean British subjects, 

 because it runs thus — If the result of the Arbitration be to affirm the right 



