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



Senator Morgan. — It occurs to uie, perhaps I am entirely mistaken, 

 that the decision, Avhichever way it may turn, on the live questions in 

 Article VI — still omits a decision upon this question of the rights of the 

 citizens and subjects of either country as regards the taking- of fur seals 

 in or habitually resorting- to the said waters. Of course, that question 

 would be negatively answered in the afiirmative proposition that the 

 seals belonged to the United States, or tliat the United States had a 

 right of protection over the seals; but, at the same time, this affirmative 

 question is put to the Arbitrators; and we are instructed here that we 

 shall decide every question that is submitted to us, and it seems to me 

 that we must give an affirmative answer on that proposition. I mean, 

 by an affirmative answer, a direct answer. 



Sir Charles Eussell. — I think you do. I should have 

 950 respectfully submitted, as far as I can at present see, that the 

 answers to the first five questions answer everything. For 

 instance, assume the first four questions to be decided in the sense that 

 Eussia exercised and asserted these rights and that Great Britain 

 recognized and conceded them, and that to those rights the United 

 States succeeded by right of cession, then the answer in that sense 

 would be the negatioij of the right of anybody else, because you would 

 have then found that there was an exclusive right and an exclusive 

 jurisdiction, and that would be a distinct answer. Equally the other 

 way; if the answer is there was no exclusive right and no exclusive 

 jurisdiction, then it follows that it is left to be determined according to 

 general international law; in other words, it is a matter of common 

 right. Article I is a mere general statement of the nature of the ques- 

 tions that have arisen. Article VI deals with the specific points which 

 are to determine those questions. 



Senator Morgan. — But Article I says: "These questions shall be 

 submitted to a Tribunal of Arbitration". 



Sir Charles Eussell. — Yes; that is to say, the matters that have 

 arisen. 



Senator Morgan. — l^o; "these questions." 



Sir Charles Eussell. — I know. Sir; but that is a description merely 

 of the matters of difference that have aiisen. That is my conception. 



Now if I am right in this interpretation — and I have said all 1 desire 

 to say upon it — I may deal with the argument upon it very briefly 

 indeed. I have, in fact, already dealt with it in the argument as to 

 Eussian assertion of rights and Eussian exercise of rights, because 

 although it is true to say that question I of Article VI does not ask 

 what rights Eussia in fact had, but only what rights she asserted and 

 exercised, it is not too much to say that if she had any other rights than 

 those she did assert and exercise, she would have asserted them and 

 exercised them if it had been necessary for her purpose to assert and 

 exercise them. 



We have come therefore to this point: That if my interpretation is 

 right — and of course I am arguing upon that assumption at present — it 

 must be held that the United States can assert that it has rights which 

 Eussia had not. In effect it comes to that. I have already discussed 

 what rights Eussia had. Eussia was the possessor of dominion on the 

 Pribilof Islands. She was therefore the owner of the islands to which 

 these animals resorted for a considerable portion of the year. She 

 therefore had special facilities for capturing, taking possession of, and 

 killing these animals. She had that exclusive right by reason of her 

 territorial dominion. She had the extension of that exclusive right to 

 the three mile limit, or whatever the marginal belt is to be considered. 



