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



of British sealers to talce seals in the Behrivg Sea. rcithin the bounds 

 claimed by the United States, that is the eastern part of Behring Sea 

 under its imrchase from Russia, then compensatio7i is to be made by the 

 United States; if on the other hand, the result of the arbitration is to 

 deny the right of British sealers to talce seals within the said waters, then 

 compensation is to be made by Great Britain to the United States. 



And I point ont that if question 5 was intended to touch or to raise a 

 question of property in the individual seals, or in the herd of seals as they 

 have been called, or in the industry founded on those seals, the limitation 

 as to compensation could not have been restricted to the mere question of 

 the right to taJce seals in Behring Sea; because property is p)roperty, and 

 if the property in the fur-seal is affirmed to be in the United States, I agree 

 most entirely ivith the argument of Mr. Carter that tJiat right of property 

 'is not lost because possession of the thing is lost. 



The rights of x)r<>peity attach to a thing wherever the thing is; so as 

 to the herd, so as to the industry; and whac makes this point clear is 

 that we have now ii])on the question of Regulations the argument put 

 forward that in truth the greatest injury that is done to the seals as 

 individuals, to the seals as a herd, to the industry carried on, or said to 

 be carried on in relation to them, is done outside Behring Sea and in the 

 approaches to the Aleutian passes; and yet the limitation as to compensa- 

 tion is to depend simply upon "<x?/e" or "mo", is there a right in the Brit- 

 ish subject to talce seals in Behring Sea within the bounds claimed by the 



United States under its purchase from Russia. 

 938 Senator Morgan. — That is not the compensation that is pro- 



vided in the Modus Vivendi. That compensation is provided, 

 because the Government has taken this subject up, and it is a question 

 between the Governments as to damages under the Modiis Vivendi, 

 because of their intervention in the matter of seal hunting or fishing, to 

 prevent it. 



Sir Charles Eussell. — I quite agree, but I do not see how that 

 weakens the force of my position. 



Senator Morgan. — 1 do not say that it does at all. 



Sir Charles Russell. — The two Governments, of course, are 

 merely representatives of the interests of their respective nations. 



Senator Morgan. — This is the first time they assumed to be so. 

 They made the Modus Vivendi and agreed to submit the damages aris- 

 ing out of that fact to the Arbitrators. 



Sir Charles Russell. — That may be. I am not concerned to dis- 

 pute that. My point, of course, is this, that if the framers of this 

 Treaty had any idea of raising before this Tribunal the question as it 

 is now presented, of individual property in the seals or in the seal herd 

 or in the industry founded upon it, the Article dealing with the question 

 of compensation ought not to have been restricted, could not legally have 

 been restricted, merely to hilling ivithin Behring Sea, especially as it is 

 apparent, according to the allegation made on the other side, that the greater 

 portion of the mischief is done outside Behring Sea. 



Mr. Justice Harlan. — May that not be explained in part by the 

 fact that that relates to damages for abstaining from the exercise of 

 that right, during the pendency of the Arbitration, to take seals out- 

 side Behring Sea? 



Sir Charles Russell. — That is exactly what I am pointing out. If 

 it was intended to say thet^e was a right in the individual seals outside 

 Behring Sea, or in the herd outside Behring Sea, or that the industry could 

 be affected by anything outside Behring Sea, then the limit of compensa- 

 tion tcould not have been put as it is in the 5th Article. That is exactly 

 my argument; but, of course, I am only beginning my justification of 



