ARGUMENTS ON PRELIMINARY MOTIONS. 133 



That fifth question docs not inirj)ort on its face to relate to or involve 

 any matter of exclusive jurisdiction. It differs from the other question 

 in that regard. It embraces certainly the property question. Whether 

 it embraces anything else, or not, is perhaps not entirely clear. 



Now let me call your attention to Article VII; 



If the determination of the foregoing questions as to the exclusive jurisdiction of 

 the United States shall leave the subject in such position that the concurrence of 

 Gi-eat Britain is necessary. 



^' The foregoing questions as to the exclusive jurisdiction." 



Now, how is that to be interpreted? Is it confined to those four first 

 questions which purport on their face to relate to exclusive jurisdiction, 

 or does it include the whole? That is the question, does it include the 

 whole? 



A plausible argument could be made in support of either of those 

 positions. It might be said that the foregoing questions as to the exclu- 

 sive jurisdiction of the United States relate to the first four and do not 

 include the fifth question, that not being a question relating to the exclu- 

 sive jurisdiction of the United States; and I think upon the other hand 

 it may be claimed with equal, perhaps greater plausibility, that Article 

 VII contemplates all five of those questions as relating, in a greater or 

 less degree, to the exclusive jurisdiction of the United States. 



You will observe that it says : "If the determination of the foregoing' 

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

 implies, at least, that they all relate to the exclusive jurisdiction of the 

 United States. 



The Peesident. — You do not mean to say "jurisdiction" is the 

 same as "rights of sovereignty"? 



Mr. Garter. — Well, now, what "jurisdiction" means, who knows? 

 We shall have something to say about that by and by. That is a word 

 of very ambiguous import; I shall talk more about this question when 

 we get to the merits of the case. I do not wish to anticipate the discus- 

 sion at all here, but only to throw out a suggestion that either of those 

 two views may be taken; and what favors the second view, in my 

 judgment, is this consideration: If it were held that the United States 

 had a perfect property in the fur-seal, even while it was at sea, the 

 question may be made, indeed it has been made by G-reat Britain, 

 whether the United States has the right to enforce the protection of that 

 property on the high seas by the assertion of acts of power; in other 

 words, whether it has the right to seize and carry in for condemnation 

 a vessel that is engaged in an invasion of that right? The position is 

 taken by Great Britain in this controversy that, even if the right of 

 property were fully established, the power thus to act in the way of 

 seizing a vessel does not exist; that is to say, that even if the right of 

 property exists you have no jurisdiction to do that particular thing, the 

 seizure of a vessel on tlie high seas by way of protecting that property. 

 ■ Therefore this question: "Has the United States any right, and if so 

 what right, of protection or property in the fur-seals frequenting the 

 islands of the United States in Behring sea when such seals are found 

 outside the ordinary three-mile limit," may properly be regarded as a 

 question of jurisdiction, in tlie vague sense in which "jurisdiction" is 

 used throughout this Treaty. 



Both those interpretations may be, with a good deal of reason, enter- 

 tained. I have now to suggest, however, that it makes not the slightest 

 difference which view is taken upon that point, for the same result will 

 be arrived at in either case. Suppose we take the first view, that it is 



