ARGUMENTS ON PRELIMINARY MOTIONS. 51 



Sir CnAELES Kussell. — Unmistakably Question 5, — unmistakably, 

 beyond any ijossibility of argument whatever, yes, and the contrary 

 has not even been suggested in argument by my learned friend Mr. 

 Phelps; absolutely. 



Senator Morgats^. — If the learned Counsel will indulge me for a 

 moment I wish to call attention to the first question under Article G, 

 "What exclusive jurisdiction in the sea now known as the Behring's 

 Sea, and what exclusive rights in the seal fisheries therein did Russia 

 assert and exercise prior and up to the time of the cession of Alaska 

 to the United States!" The point I wish to call the attention of Coun- 

 sel to is ichethcr the ^'•assertion and exercise prior ^^ to that period by 

 Eussia is not the proposition that we have to answer instead of the 

 rightfulness of the exercise and assertion. 



Sir Charles Kussell. — I think both; either would be enough for 

 my purpose, but I think both. But now I follow the question addressed 

 to me by another member of the Tribunal and I would desire to give a 

 little fuller answer to it. How are these questions introduced'? I was 

 putting to myself the question whether it would be comi)etent to the 

 Representatives of the United States to say. "We will dispence with 

 all those questions 1, 2, 3, 4 and 5. We will ask the Tribunal straight 

 away to come to the question of Regulations under Article VII ". 

 Would it be within their competence to ask it. Would it be within 

 the competence of this Tribunal to yield to that reqnest. I say emphat- 

 ically no, because Article VI begins by saying: " In deciding the mat- 

 ters submitted to the Arbitrators, it is agreed that the following five 

 points shall be submitted to them in order that their award shall 

 embrace a distinct decision upon each of the said five points". There- 

 fore the decision of the Tribunal upon each of those five points cannot 

 be dispensed Avith, but what is the order of the decision. Could they 

 decide the question of Regulations first and then proceed to the ques- 

 tion of right! No, because Article VII i^rovides this. I need not say 

 that any interpretation points to a contingency. " If the determination 

 of the foregoing questions as to the exclusive jurisdiction" you observe 

 " of the UuitQd States shall leave the subject in such position that the 

 concurrence of Great Britain is necessary to the establishment of 

 Regulations for the proper protection and preservation of the fur-seal 

 in, or habitually resorting to the Behring sea". What is to follow! 

 " the Arbitrators shall then determine" that is to say if the contingency 

 happens, then, but not till then, "the Arbitrators shall determine 

 what concurrent Regulations outside the jurisdictional limits of the 

 respective governments are necessary and over what waters such 

 Regulations should extend". 



J think therefore that I have so far made good my position — I ought 

 not to say that I think so, as it is not the habit of Counsel, with us at 

 least, to express personal opinion and I wish to guard myself and desire 

 to follow the course which is considered the proper course in these mat- 

 ters to submit these matters, and let them be tested by the strength of 

 the arguments advanced in support of them without bringing in, and 

 I hope my learned friends will agree with me, the personality of Coun- 

 sel as a warrant for or against. I am quite sure that there are many 

 projjositionsput forward in the argument which I have had the pleasure 

 of reading x)resented by the United States which I should be sorry to 

 be, and I think my friends would be sorry themselves to be committed 

 to as approving Lawyers. 



The contingency is, therefore, that if it shall be found that the matter 

 stands in such a condition of things that there is not the exclusive 



