ARGUMENTS ON PRELIMINARY MOTIONS. 71 



question of property interest iu iudividual seals, in so-called herds of 

 seals, or an industry carried on by the killing of seals goes, it stands 

 for judgment upon facts that are practically undisputed. The question 

 is, the principles of law that are applicable to those facts. In acknowl- 

 edging this, Mr Foster says "If, as I believe and assume, this Eeport 

 contains substantially all the matter which Her Majesty's Government 

 will rely upon to support its contentions" not as to regulation "in 

 respect to the nature and habits of fur seals and the modes of cap- 

 turing them; I entertain a confident hope that all further difficulty 

 upon the questions discussed in this note may be avoided." I answer 

 to that, that Mr Foster may assume we do not seek to disturb his 

 assumption, that in the document then communicated as far as we 

 believe any of the facts iu it are material ujion the question of proi)erty 

 protection, — we have no desire to add to that store of information, 

 whether it is ample or whether it is deficient: but, on the question of 

 regulations, we have never receded from the position, and do not recede 

 from the position, we did take up in the original Case and are entitled 

 to take up, and which is based on our construction, which we submit 

 is incontestably the right construction, that tiiat Article VII does, in 

 the matter of regulations, provide for tlie possibility and admissibility 

 of further evidence tendered by either Government. 



He then concludes: "I deem it necessary, however, to say that the 

 Government of the United States will, should occasion arise, firndy 

 insist upon its interpretation of the Treaty, and that it reserves its 

 right to protest against and oppose the submission to a reception by 

 the Arbitrators of any matter which may be inserted in the British 

 Counter Case which may nut be justified as relevant by way of reply 

 to the Case of the United States." Our position is this, as far as our 

 original Case was concerned. We do not seek to supplement it by any 

 incidents relating to seal life which have any bearing on questions of 

 property except in so far as the new matter introduced in the Counter 

 Case is there introduced in the terms of Mr. Foster's qualification as 

 an answer to the allegations and statements and evidence put forward 

 in the Case of the United States; but as to regulations I do not depart 

 from the position I had previously assumed. 



Now we get to the next stage of this matter which I wish to follow 

 out so that there may be no dispute. The moment came for the delivery 

 of the Counter Case. What do we do? In the Counter Case they fol- 

 low the same position consistently throughout. On page 3 of the 

 Counter Case there is this passage: "The subject of the regulations 

 (if any) which are necessary and the waters over which the regulations 

 should extend referred to in Article VII of the Treaty is considered in 

 Part II. For reasons more explicitly stated in correspondence which 

 will be found in the Appendix, the consideration of this point" — that 

 is regulations — "have been treated in this Counter Case" — Avhy"? — 

 "but only in deference to the wish expressed by the United States, 

 that arguments upon all the questions with which the Arbitrators may 

 have to deal should be placed before the Tribunal by means of the Case 

 and Counter Case. The Government of Her Britannic Majesty have 

 adduced these arguments under protest and without prejudice to their 

 contention, that the Arbitrators will not enter upon or consider the 

 question of the proposed Regulations until they have adjudged upon 

 the five questions enumerated in Article VI, upon which they are by 

 the terms of the Treaty required to give a distinct decision, upon the 

 termination of which alone depends the question whether they shall 

 enter upon the subject of regulations. Her Majesty's Government 



