48 ARGUMENTS ON PRELIMINARY MOTIONS. 



does not pretend to deal with, is not intended to be used in relation to 

 any of the questions of right raised in this Arbitration, and this brings 

 me to the very heart of this contention. Tliis brings me to, in fact, 

 the point which alone can supply any justification for the grave impor- 

 tance which my friends have sought to attach to this discussion. What 

 is that point. What is the heart of this mystery. It is this. That 

 my learned friends desire that this Tribunal should deal with all the 

 questions embraced within the purview of this Treaty as if they were 

 but one question, that this Tribunal shall be able to mix up and to con- 

 sider in the same range of thought and argument two classes of ques- 

 tions which are distinct in themselves and are made distinct beyond 

 any question in the Treaty. And therefore the first point to which I 

 desire to address myself is to make it apparent, because it is the founda- 

 tion upon which my whole argument rests that not only are there two 

 sets of questions, or two divisions of questions, I should prefer to say, 

 differing in their nature and as to whi<ih different considerations as to 

 evidence apply, but that this division marks out a further division of 

 the functions of this Tribunal itself in the consideration of those two 

 divisions. 



Now you have before you, Sir, copies of the articles of the Treaty, 

 and I will not trouble you by more than a passing notice of articles 

 III, IV, and y, which deal with the presentation of the Case, on each 

 side and which in Article V contemplates, not as a matter of grace or 

 favor, as my learned friend seemed at one moment to suggest, but as 

 a matter of right, oral argument before these Arbitrators upon the 

 questions involved; and then machinery having been provided in those 

 Articles III, IV, and V, for the presentation of the Case on each side, 

 by Case Counter Case and Argument, Article VI proceeds to set out 

 five points which may be shortly described by me — I think correctly 

 described, — as claims of right upon the part of the United tstates in 

 relation to the subject matter in controversy; and not of right merely, 

 but of exclusive right. The first question is the exclusive jurisdiction 

 claimed in tlie Behring sea, and the exclusive rights in the seal fish- 

 eries which it is alleged were asserted and exercised by Russia. That 

 point being made on the pait of the United States, in order to support 

 what is put forward more or less seriously — very seriously indeed in 

 the diplomatic correspondence which led to the Treaty, but which, if I 

 may judge from the arguments presented, and the Counter Case of the 

 United States, is now going to take what my learned friend euphemis- 

 tically called a subordinate place in the arguement — the second ques- 

 tion is "How far were these claims of jurisdiction as to the seal fish- 

 eries" — "of jurisdiction", that is to say these exclusive claims, "as to 

 seal fisheries recognized and conceded by Great Britain". Need I do 

 more than point out in passing to the Jurists whom I am addressing 

 that upon that allegation was intended to be asserted a claim by the 

 United States based upon long user, acquiescence, and recognition of 

 certain supposed rights, so that Great Britain was to be excluded from 

 the consideration of those laws which regulate territorial jurisdiction 

 and cognate rights, and was in the language of lawyers to be estopped, 

 to be prevented from saying that these rights so recognized had no 

 legal foundation or support in International Law at all. 



The third question is subsidiary to tliese: "Was the body of water 

 now known as the Behring's sea included in the phrase 'Pacific Ocean', 

 as used in the Treaty of 1825 between Great Britain and Kussia, and 

 what rights, if any, in the Behring's sea were held, and exclusively 

 exercised by Kussia, after said Treaty". Again a question of right. 



