52 ARGUMENTS ON PRELIMINARY MOTIONS. 



right peculiarly appertaining to the United States, which is suggested 

 either under an inherent or under a derivative title, then the question 

 of Kegulations is to arise. I now think this the convenient moment 

 for supplementing the further answer to the question which one of the 

 Tribunal was good enough to address to me as to Question 5. Tlie only 

 difference between Question 5 and the preceding Questions is this. 

 Both relate to questions of right; both are based ujjon allegations of 

 right on the part of the United States. The only difference is that 

 whereas the Questions 1, 2, 3 and 4 are based upon what I may call the 

 derivative title under Eussia and ui)()n the allegation of acquiescence 

 of Great Britain, Question 5 asserts tho.se rights of protection and of 

 property as inherent in the United States itself by virtue of its territory 

 and rights inherent in itself, exclusive of others. That is the only 

 difference. In other words, Question 5 points to rights of an exclusive 

 kind belonging to the United States by reason of its inherent i)owers 

 as territorial owners; Questions 1, 2, 3 and 4 are conversant with the 

 allegation of rights of the same kind but based upon a derivative title 

 from Eussia, a title which they allege to have been recognised by Great 

 Britain. 



^ow, I claim, therefore, to have made good, so far, the position with 

 which I set out. 



Mr. Justice Harlan. — In order that I may get your idea exactly, 

 will you tell me, is it your contention that tlie arbitrators could not 

 determine the question named in the first two lines of Article VII as to 

 the exclusive jurisdiction of the United States without also determining 

 the question of the right of property in Question 5. 



Sir Charles Kussell. — I think, Sir, I must ask you to be good 

 enough to repeat that question, and, if you could, in a little louder 

 voice? 



Mr. Justice Harlan. — Is it your position, which I want to under- 

 stand fully, that the arbitrators could not determine the question in the 

 forefront of Article VII as to the exclusive jurisdiction of the United 

 States without determining also the question of the right of proi)erty 

 named in Question 5? 



Sir Charles Kussell. — ISTo, I say that is involved. I have already 

 answered that in the answer that I have already given to you. 



Mr. Justice Harlan. — Yes. 



Sir Charles Kussell. —You will observe. Sir, that the thing is 

 clear. "If the determination of the foregoing questions," you will 

 observe, the argument is clear and I beg to point out that it would have 

 been very convenient, if this idea was passing through your mind or 

 through the mindof any member of the Tribunal, if my learned friends 

 themselves had been asked about it, because my learned friend (and 

 therein I think he was perfectly right) did not seek to draw any distinc- 

 tion such as is suggested in the question, nor indeed could he as I submit. 

 The first words of Article VII are. "If the determination of the fore- 

 going questions as to the exclusive jurisdiction of the United States." 

 It draws no distinctioil between Question 5, and Questions 1, 2, 3 and 

 4. It deals with the foregoing Questions. The foregoing Questions 

 are Questions 1, 2, 3, 4 and 5. That is my answer. 



But now, Sir, I proceed. 



The President. — I would rather that we broke off here if. you are 

 going to begin a new part of your argument. 



Sir Charles Kussell. — If you please. 



[The Tribunal then adjourned for a short time.] 



