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



of demarcation described in our convention with Russia, to which reference has 

 already been made, and that Russia has never asserted any rights in these waters 

 aflecting the subject-matter of this contention and cannot, therefore, be a necessary 

 party to these negotiations if they are not now improperly expanded. Under the 

 Statutes of the United States, the President is authorized to prohibit sealing in the 

 Behring Sea within the limits described in our Convention with Russia, and to 

 restrict the killing of seals on the Islands of the United States. But no authority 

 is conferred upon him to prohibit or make penal the taking of seals in the Waters of 

 Behring Sea westward of the line referred to, or upon any of the shores or islands 

 thereof. It was never supposed by anyone representing the Governinent of the 

 United States in this correspondence, or by the President, that an Agreement for a 

 modus Vivendi could be broader than the subject of contention stated in the corre- 

 spondence of the respective Governments. 



Now, Sir, I submit that I have said enough to show that I am raising 

 a grave question for the consideration of this Tribunal, as to the true 

 construction of that question 5 : whether, in other words, I am not justi- 

 fied in stating that that question, like the first four, is conversant with 

 questions of jurisdiction and exclusive right in a limited area, namely, 

 the eastern part of Behring Sea; and that in no part of the correspond- 

 ence leading up to the Treaty, nor in the Treaty itself, is there raised 

 the question of a right of property in the individual fur-seal, or in the 

 herd, or in the industry based upon the fur seal, except as a question of 

 jurisdiction within this limited area. I, of course, have already told 

 the Tribunal that I cannot venture to assume that the meaning which 

 I am putting upon this question is the meaning which the Tribunal 

 will say is right, and, therefore, it would be incumbent upon me to 

 argue it presently as if it had a different meaning, such as my learned 

 friend suggests. That I will not shrink from doing, but I feel bound 

 to put before the Tribunal our view, justified as I contend by the legis- 

 lative and executive action of the United States, and by the diplomatic 

 correspondence: that from first to last this was a question, in whatever 

 shape it was put, which was based upon jurisdiction of an exclusive, 

 -in other words of a territorial character, and it is properly in that 

 character referred to, in Article VII, as being a question of exclusive 

 jurisdiction. 



Now I must assume at this present stage of my argument that 



948 the question is, has the United States an exclusive right to take 



fur-seals in the eastern x)art of Behring Sea, and an exclusive 



jurisdiction" to enforce and protect by the exercise of sovereign power 



that right in the eastern part of Behring Sea? 



The President. — Do you believe that the words in Article VII 



The fur-seals in or habitually resorting to the Behring Sea 



were originally conceived as making part of the first wording of that 

 Article VII, or were they brought in afterwards? Do you know any- 

 thing about that? 



Sir Charles Eussell. — I can answer that question, Sir, because 

 the original frame of the question is to be found in Mr. Blaine's letter 

 of December 1890. I have read that letter to you and I will read it 

 again. It is in page 286 of the United States Appendix Volume 1. 

 Of course I have read the correspondence which brought it dewn to a 

 later period, showing the views of Mr. Wharton after the Treaty was 

 actually executed and signed. The words are there in the original 

 letter of Mr. Blaine; and if you turn to page 295, you will see that Mr. 

 Blaine repeats the substance of the same question in that letter of the 

 14th April 1891 ; the 5th question is stated in the form in which it is 

 there suggested. 



Mr. Justice Harlan. — What Baron de Courcel is referring to now is, 

 what is the 7th Article, but which was originally the Gth question : and 



