ARGUMENTS ON PRELIMINARY MOTIONS. 101 



eitlier party to determine wliat evidence it will submit in respect to any 

 part of the controversy or to retrain from submitting any evidence at 

 all; but such inleience as to tlie course contemplated by tbe Britisli 

 Government does not seem consistent with certain statements made by 

 its Agent in the printed Case submitted by him", 



isow then, at this point, I will interrupt the reading of the letter for 

 this purpose; I wish to call your attention to wdmt was said in the Case 

 in respect to these omissions. I now call the attention of the learned 

 Arbitrators to the Case of Her Majesty's Government and to what is 

 said in it at page 135. It begins' thus: — ''Poiut 5 of Article VI. — 

 Has the United States any Right, and, if so, what Eight of Protec-tiou 

 or Property in the Fur seals frequenting the islands of the United iStates 

 in Behring sea wheu such seals are found outside the ordinary 3-mile 

 limit? — Xiie claim involved in this question is not only new in the 

 present discussion, but is entirely witlioiit precedent. Jt is, moreover, 

 in contradiction of the position assumed by the United States in analo- 

 gons cases on more than one occasion. The claim appears to be, in this 

 instance, made only in respect of seals, bnt the principle involved in it 

 might be extended on similar grounds to other aninuils ferw naturcv,^ 

 su(!h, for instance, as whales, walrns, salmon and marine animals of 

 many kinds." And it goes on to argue that Ihere is no foundation for 

 a claim of property, and treats it as a mere question of law. At the 

 close of this particular part of the Case of Great Britain it is said : 

 "In the absence of any indication as to the grounds upon which the 

 United States base so unprecedented a claim as that of a right to pro- 

 tection of, or property in, animals/era? naiurce 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 ferm naiurce when frequenting the 

 high seas." Now then the position taken by Great Britain by the form 

 in which her Case was made up in this particular is based upon these 

 two grounds: first, that a seal is an animal. /'crce nafurw, and therefore 

 cannot be the subject of property at all, and that the question whether 

 he is a subject of property at all is a question of law and not a question 

 of fact, Next, if the United States should happen to show any grounds 

 or reasons upon which they claim that the seal is a subject of ijrop- 

 erty, she Great Britain will answer that claim when those grounds and 

 reasons are shown and will postpone the consideration of the case 

 until that time. That is to say, if the United States undertakes to 

 show by argument that seals are property, we will answer the argu- 

 ment when the case is made. If they undertake to show by evidence 

 that the seals are ])roperty, we will answer that evidence by evidence 

 of our own. That is the i)Osition which they took. Well, I have one 

 or two observations to make upon the face of that. In the first place, 

 we admit that the question whether seals are the subject of property 

 or not is a question of law. But it is a question of law which depends 

 upon facts, and how the question of law is to be decided, of course no 

 one can tell until it is known what the facts are. 



In other words, the question whether there is a x^roperty in seals or 

 not depends upon the nature and habits of the seals, as is now fully 

 admitted upon the other side, but was at this time denied; and in order 

 to know what the nature and habits of seals are, of course, evidence 

 must be given to show what they are. Now the question of property 

 was submitted to the Tribunal. If we had any evidence as to their 

 nature and habits on which we contended that the property in them 

 was in the United States, it was our business to submit that evidence 



