ARGUMENTS ON PRELIMINARY MOTIONS. 49 



Allf .cation on the part of Great Britain that, whatever may have been 

 the antecedent state of thingrs, that passed away and was removed by 

 the Treaty of 1825, because the Treaty of 1825, according to tlie con- 

 tention of Great Britain, gave in ex])ress terms rights of fishing 

 amongst other rights — 1 slioukl have said it recognized — not gave, but 

 recognized rights of fisliing, amongst other rights in the Pacific Ocean, 

 which was a comprehensive plirase, intended to include the Behring 

 sea. No, said the United States, the Behring sea was left, and left 

 designedly out of the Treaty, and whatever rights Russia claimed and 

 exercised to Behring sea were left untouched by that Treaty. But 

 now, according to my learned friend, this has become a subordinate 

 question. He has referred to that distinguished man now passed 

 away, a man whose ability both Hemispheres have recognized and 

 acknowledged, some of whose able communications and arguments upon 

 this matter I shall have to consider at a later stage of this discussion. 

 But what did he say upon this question? Writing on the 17th Decem- 

 ber 1890. I am referring to page 263 of the Appendix to the Case of 

 the United States, Volume I — he wrote in this language: — "Legal and 

 dii)lonuitic questions, ai)parently comi)]icated, are often found, after 

 piolonged discussion, to depend on the settlement of a single i)oint. 

 Such, in the judgment of the President, is the position in which the 

 United States and Great Britain find themselves in the pending con- 

 troversy, touching the true construction of the Russo-American and 

 Anglo-Russian Treaties of 1824 and 1825;" and then, after dwelling 

 ujjon that for a moment he goes on, "If Great Britain can maintain 

 her positi(m that the Behring sea at the time of the Treaties with Rus- 

 sia of 1824 and 1825 was included in the Pacific Ocean the Government 

 of the United States has no well grounded complaint against her;" 

 and yet we are now told by my learned friend that the importance of 

 this question is receding into the background and is, after all, only a 

 subordinate question. Why it suits the exigencies of the discussion 

 of my learned friend to assume that position will become apparent 

 when it is more germane to the matter in hand to enlarge, as 1 must at 

 a later stage enlarge, upon this branch of the argument and of the 

 controversy. W^hat is the next question ? Did not all the rights of 

 Russia as to jurisdiction and so on, pass by the cession of 18G7 when, 

 as you know, the United States of America acquired by cession of that 

 year 1867, the district of Alaska and the rights properly incident to 

 the territorial cession of that country — again supporting their deriva- 

 tive title? Finally. " Has the United States any right, and, if so, what 

 right of protection or property in the fur seals frequenting the Islands 

 of the United States in Behring sea when such seals are found outside 

 the ordinary three mile limit!" 



Now I have read these questions, I would submit, — and I appeal to 

 the judgment of any single Arbitrator who hears me — and I do not 

 understand my learned friend even to suggest the contrary — that every 

 one of those questions depends upon riglit. As I say, 1 do not under- 

 stand that to be disputed. But what follows from that? Why not 

 only that there is a distinction as to the character of the questions, 

 but that this distinction involves — necessarily involves — a distinction 

 in the functions which this Tribunal have to exercise in relation to 

 those questions, if there be found also in the Treaty questions which 

 do not depend upon right. What is that distinction? Well, it is clear. 

 You are a distinguished body of Jurists. You are chosen because you 

 are so. You are here not to make the law, not to declare what the law 

 ought to be, but you are to adjudicate upon questions of right as the 

 B s, PT XI 4 



