50 ARGUMENTS ON PRELIMINARY MOTIONS. 



law is. In other words, in tliis respect, your functions are distinctly? 

 absolutely, solely, the tmictious of Judges and of Jurists. 



But I ])nss ironi those questions, and 1 have to show if I can that the 

 Treaty conteni])lates by this Tribunal the settlement of otlier questions 

 which are not dei)endent upon right, which are not dependent upon the 

 assertion of exclusive right; but you are asked (the questions of right 

 being decided), to apply your minds as an impartial Tribunal, and 

 representing not one side but both, recognizing the fact that there are 

 other rights than the rights of the United States and other rights th;in 

 the rights of Great Britain, to determine what regulations are neces- 

 sary for the proper protection and preservation of the fur seal. You 

 are then dealing with an area of the open sea in which the rights of 

 mankind are common and you are asked, m the interests of allio say 

 tchat n-onid be the just, the necessary, the proper regulations addressed to 

 the object, the 7nain object, of this Arbitration, the preservation of the 

 fur seal. 



Senator Morgan. — Does the learned Counsel insist that that is a judi- 

 cial function on our part f 



Sir Charles Kussell.— iV^of at all. I am glad that the Member of 

 the Tribunal who has addressed me is recofjnizing the distinction that I 

 am drawing. No. When you get to that part of the Case, you will 

 have to do what in the interest of all concerned is expedient. You have to 

 stand bcticeen tlicse parties who are in controversy, recollecting that each 

 of them has a right which 7mist be regarded and borne in mind and that 

 outside the immediate parties to the controversy there are others ivho have 

 rights as apart of manldnd. 



Senator Morgan. — In that vieAv, if I understand the Counsel, ice 

 have something to ordain in that particular view of the case, and not any- 

 thing to adjudicate. 



Sir Charles Russell. — You have to recommend and to recommend 

 with authority. 



Senator Morgan. — <-^ Determine'''' is the language. 



Sir Charles Kussell. — Yes, determine. 



Lord Hannen. — '■^ Deter mine''\ 



Sir Charles Russell. — Determine I agree that is ichat you have to 

 do; and icithout pledging myself for the moment to the acceptance or the 

 non acceptance of the word '■'■ ordain^^ as distinguished from the word 

 '•'• determine''\ as distinguished from the ivord '■^ adjudicated^ which possibly 

 is correct. — I can convey my meaning, I think, intelligibly; you have, 

 under the first head, to deal as Judges and Jurists, under the second 

 head, you have to deal as just men ordaining a set of rules which the 

 parties have left to your determination and which you are asked to 

 determine in view of all the interests affected. That I take to be the 

 grave distinction. 



Well then in what order is this question to come before you. If my 

 learned friends are right or my learned friend Mr. Phelps is right in 

 his contention, there is no reason why he should not begin at wlmt I 

 would call the wrong end of this discussion — why he should not say 

 " Well, I have already gone the length of admitting that these questions 

 of right are gradually recediiig into the background, I do not attach 

 imi)ortance to them. I will as^k the Tribunal to begin with the Regu- 

 lations"! Could he do sof 



Mr. Justice Harlan. — What I wish to ask just here is whether, in 

 your use of the word rights you are referring to the rights that may be 

 involved in the answers to the first fi)ur questions, or do you embrace 

 also the rights involved in Question Hi 



