68 ARGUMENTS ON PRELIMINARY MOTIONS. 



I do not stop to consider whether the advisers of the Queen were right, 

 or whether they were wrong in that position. Tlieir view was that this 

 was a claim, and is a chiiin, novel and unprecedented, that the onus 

 lay upon those who put forward a claim so novel and unprecedented, to 

 justify it by facts and by arguments, and that the onus was not upon 

 Great Britain to disprove — the onus was on the United States aifirma- 

 tively to prove. 



Then it proceeds to the question of Regulations, and it sets out Arti- 

 cle VII, and then it goes on: "The terms of this Article make it neces- 

 sary that the consideration of any proposed Eegulatious should be 

 posti)oned until the decision of the Tribunal has been given on the 

 previous questions. Beyond, therefore, demonstrating tlmt the con- 

 currence of Great Britain is necessary to the establishment of any 

 Eegulations which have for their object the limitation or control of the 

 rights of British subjects in regard to seal-fishing in non-territorial 

 waters, it is not proposed to discuss the question of the proposed lieg- 

 ulations, or the nature of the evidence which will be submitted to the 

 Tribunal." That is at pages 10 and 11 of the original Case. On page 

 135, Chapter VIII, of the same Case, in relation to the question of prop- 

 erty and protection, it is there stated: "The claim involved in this 

 question is not only new in the present discussion, but is entirely without 

 precedent. It is, moreover, in contradiction of the x>osition assumed 

 by the United States in analogous cases on more than one occasion. 

 The claim appears to be in this instance made only in respect of seals, 

 but the principle involved in it might be extended on similar grounds to 

 other ammnlsfercBnatiira', such, for instance, as whales, walrus, salmon 

 and marine animals of many kinds." And then it proceeds to say 

 that these being admittedly animals/errt? naturce, it was the duty of the 

 United States if they sought to make a claim to property in relation to 

 them to establish their grounds consistently with a Municipal law of 

 their own or any other country. 



Then that subject is dismissed with this final note. "In the absence 

 of any indication as to the grounds u])on which the United States base 

 so unprecedented a claim as that of a right to protection of or property 

 in animals/errt.' nattirce upon the high seas, the further consideration of 

 this claim must of necessity be postponed; but it is maintained that, 

 according to the principles of International law, no property can exist 

 in animals /mt? natnrce when frequenting the high seas". And finally, 

 in relation to Eegulations, which is the matter which I have more 

 immediately in hand, it proceeds — "Great Britain maintains, in the 

 light of the facts and arguments which have been adduced on the 

 points included in the Gth Article of the Treaty, that her concurrence 

 is necessary to the establishment of any Regulations which limit or 

 control the rights of Britisli subjects to exercise their right of the pur- 

 suit aiul cai)ture of seals in tlse non-territorial waters of Behring sea. 

 The further consideration of any proposed Regulations and of the evi- 

 dence ]n'oper to be considered by the Tribunal in connection therewith 

 must of necessity be for the present postponed". It is clear therefore, 

 what was the position (it cannot be (loubted) bond tide taken up by the 

 repi'esentatives and advisers at tliat time of the Crown as to the 

 ])roper position in this (juestion. 



Then we come to the correspondence wldch took [dace between Mr. 

 Foster and the representatives of the Qneen in Washington in Septem- 

 ber 181)1^, after the Case has be(Mi delivered. Mr. Plie!])S has nheady 

 i-etcrred to this matter, but I must follow it up. TIh^ pith of Mr. Fosters 

 complaint is contained in tiie secojid paragraph of that letter, and 1 am 



