ARGUMENTS ON PRELIMINARY MOTIONS. 125 



evidence in relation to seal life — this vitally imj)oitant part of tlie 

 evidence, and only disputable part — has a bearing only upon the ques- 

 tion of regulations, or mainly that, thus defending the cour.se pursued 

 by Her jMajesty's Government in not incorporating any part of that 

 evidence into the original Case. 



For you will perceive, that if evidence bearing upon the subject of 

 seal life is competent and relevant upon the question of property, why, 

 then, consistently with their own interpretation of the Treaty, they 

 were* bound to incorporate it into their original (Jase. For the question 

 of property is one of the live questions Avhich it is made necessary by 

 the provisions of the Treaty that a categorical response should be 

 given by the Arbitrators. The question of property is among them. 



The question of Kegulations is put by itself; but the question of 

 property is among the tirst five, and if this evidence in relation to seal 

 life is competent and relevant upon the question of property, why they 

 should have juit it into the original Case and not have reserved it, as 

 they did reserve it, until their Counter Case. Is evidence as to the 

 nature and habits of the fur seals not competent upon the question of 

 property? How can that idea^ be entertained for a momenta How can 

 the question of property be otherwise determined f Su])pose both par- 

 ties had acted upon the view suggested by Sir Charles Eussell and 

 maintained constantly by the Government of Great Britain — I will not 

 say maintained constantly, for they, with great respect, are incon- 

 sistent upon that point, as I shall presently show — but urgently insisted 

 upon at times, namely, that the testimony in relation to seal life is not 

 competent upon the question of j)ro])erty. Sui)pose both sides had 

 proceeded upon that view, and scrupulously omitted from their several 

 Cases any matter or evidence relating to seal life, and the Arbitration 

 had gone on with the Cases prepared in that manner, this Tribunal 

 would then be called upon to determine the question of property with- 

 out any evidence before it except the fact that seals were seals — that 

 is where we would have been. Now I resi)ectfully submit to the 

 Tribumil that that notion that evidence in relation to seal life is not 

 competent upon the question of property is — I do not wish to use the 

 word in any disrespectful sense — but it is preposterous. ISuch evidence 

 is directly relevant to the question of property — principally relevant to 

 the question of property, and it is the only evidence upon which the 

 question of property can be xu'operly decided. 



Let me say in the next i)lace, that this notion that they have brought 

 forward for the purpose of defending their conduct in the preparation 

 of their Case and Counter Case derives no countenance from the 

 diplomatic communications between the parties, or from theprovisions 

 of the Treaty itself and those other instruments which are collateral 

 to the Treaty. Let me call your Honors' attention to the Modus vivcndi 

 of 1891. It is contained in Volume I of the Appendix to the United 

 States Case, page 317; that part of it to which 1 invoke especial 

 attention is the fourth Article. 



The President.— May I ask what is the date of that Modus vivendi? 



Mr. Carter.— It is June the 15th, 1891. 



The President. — Quite concurrently with the nomination of the 

 Joint Commission, — quite at the same time"? 



Mr. Carter. — Yes, Sir. 



The President. — They concurred together? 



Mr. Carter. — Certainly, Sir. 



The President. — They concurred in time with the nomination of 

 the Joint Commission. 



