ARGUMENTS ON PRELIMINARY MOTIONS. 145 



dent, speaking- in relation to the Beliring Sea question, said — ' TJie 

 oti'er to snbniit the question to arbitration, as proposed by Her Majesty's 

 Government, has not been accepted, for the reason that the form of sub- 

 mission proposed is not thou<j;]it to be calculated to assure a conclusion 

 satisfactory to either i)arty ' In the judgment of the President, noth- 

 ing of imixntance would be settled by proving that Great Britain con- 

 ceded no jurisdiction to Eussia over the seal fisheries of the Behring- 

 Sea. It might as well be proved that Eussia conceded no jurisdiction 

 to England over the Eiver Thames. By doing nothing in each case 

 everything is conceded. In neither case is anything asked of the other. 

 ' Concession ', as used here, means simply acquiescence in the rightful- 

 ness of the title, and that is the only form of concession which Eussia 

 asked of Great Britain, or Avhich Great Britain gave to Eussia. The 

 second offer of Lord Salisbury to arbitrate amounts simply to a submis- 

 sion of the question whether any country has a right to extend its juris- 

 diction more than one marine league from the shore? No one disputes 

 that as a rule; but the question is whether there may not be exceptions 

 whose enforcement does not interfere with those highways of commerce 

 which the necessities and usage of the world have marked out. Great 

 Britain, when she desired an exception, did not stop to consider or 

 regard the inconvenience to which the commercial world might be sub- 

 jected ", and so on. And then he comes to what I cited. — " It will mean 

 something tangible, in the President's opinion, if Great Britain will 

 consent to arbitrate the real questions which have been under discus- 

 sion between the two Governments for the last four years. 



" I shall endeavour to state what, in the judgment of the President, 

 those issues are ". And he propounds the idea of the issues as they 

 appear in the Arbitration in somewhat different forms. One, two, three 

 and four I need not trouble you to read — " What exclusive jurisdiction 

 in the sea now known as the Behring Sea ", and so on; " How far were 

 these claims of jurisdiction recognised " ; " Was the body of water now 

 known as the Behring Sea included in the phrase ' Pacific Ocean '", and 

 so on; "Did not all the rights of Eussia as to jurisdiction, and as to 

 the seal fisheries ', and so on; " What are now the rights of the United 

 States as to the fur-seal fisheries", and so on. And then I come to 

 Article VI which you will find is the beginning of Article VII of the 

 Treaty. — " If the determination of the foregoing questions shall leave 

 the subject in such a position that the concurrence of Great Britain is 

 necessary in prescribing Eegulations for the killing of the fur-seal in any 

 part of the waters of Behring Sea, then it shall be further determined — 



" (1) How far, if at all, outside the ordinary territorial limits it is nec- 

 essary that the United States should exercise an exclusive jurisdiction : " 

 that is regulations; " Secondly, whether a closed season'', (that is also, 

 of course, regulations); "Thirdly, What months or parts of months 

 should be included in such season, and over what waters it should 

 extend". That is also regulations. Now, really, is it necessary that I 

 should go further? 



Mr. Justice Harlan. — There is some difference between that para- 

 graph and Article VII in the Treaty. 



Sft- Charles Eussell. — Certainly, but no difference that is the least 

 material on the point we are discussing, whi(;h is, whether or not no 

 Arbitration at all was the contingency in the Treaty. 



Mr. Phelps. — Yes. 



Sir Charles Eussell. — I should say that here is the germ of the 

 Treaty, and a fully developed germ of the Treaty, and which, two years 

 before, contem])lates the very order and arrangement and terms con- 

 tained in that Treaty. 

 B s, PT XI 10 



