ORAL ARGUMENT OF JAMES C CARTER, ESQ. 139 



fairly derived from tlie conduct of tliese several Governments, is 

 further confirmed by a uniform, long-continued acquiescence of sixty 

 years, down to the year 1883, during which no nation and no peoijle of 

 any nation have ever undertaken to disturb or invade in Berino- Sea the 

 exclusive right and proprietorship of Kussia in this sealing industry. 



Tliose facts and circumstances, although we do not conceive them to 

 be vital in this controversy, yet have a nmterial and important bearing. 



I wish to exphiin to the Tribunal what our view is of the bearing of 

 these arguments which I have laid before you upon the answers to the 

 first questions formulated in the Treaty; and I must call to your 

 minds again the distinction which I have heretofore attempted to draw 

 between the exercise by a nation of sovereign jurisdiction over the high 

 seas — a sovereign jurisdiction of a character which makes the high 

 seas over which such jurisdiction is attempted to be extended a part of 

 the territory of the nation, giving tlie nation an exclusive power of legis- 

 lation over it — the difference between the assertion of such a right as 

 that, and the assertion of a right to exercise acts of force on the high 

 seas for the purpose of protecting a property, or an industry, of a peo- 

 ple; one of them being an assertion of sovereign jurisdiction, the other 

 lio assertion of sovereign jurisdiction at all, but simply a right of self- 

 protection and self defence, which a nation, acting as an individual, 

 always has, 



I have stated that there was some confusion in the minds of jurists 

 and text-writers in reference to that distinction. The same confusion 

 will be found in the langnage of this Treaty which draws up the ques- 

 tions which are submitted to the Tribunal. 



1 refer the Arbitrators to Article 6 of the Treaty, which is found on 

 page 2 of the original Case. 



In deciding the matters submitted to the Arbitrators, it is agreed that the follow- 

 ing five points sliall be submitted to them, in order that their award shall embrace 

 a distinct decision upon each of said five points, to wit: 



1. What exchisive jurisdiction in the sea no\T known as the Behrihg's Sea, and 

 what exclusive rights in the seal fisheries tliereiu, did Russia assert and exercise 

 prior and up to the time of the cession of Alaska to the United States? 



At first reading, it might be supposed that by the term "exclusive 

 jurisdiction" sovereign jurisdiction was intended, and not a right to 

 defend proj)erty or industry by self-defensive measures. That might 

 be thought at first blush to be intended by the language of that first 

 section; and yet 1 am inclined to think it was not the intention of it, 

 but that what was in the minds of the auth(n-s of that article was a 

 power to defend a property interest by defensive regulations; for you 

 will observe they couple that language of "exclusive jurisdiction" with 

 "exclusive rights in the seal fisheries therein." They say: "What 

 exclusive jurisdiction in the sea now known as the Bering Sea, and 

 what exclusive rights in the seal fisheries therein did Eussia assert and 

 exercise prior and up to the time of the cession of Alaska to the United 

 States r' 



Those two things, the jurisdiction, and rights in the seal fisheries are 

 blended together, and blended together inseparably. What was really 

 in the minds of the authors of the treaty was the question, What rights 

 in the seal fisheries did Kussia possess and what rights to defend them 

 by the exercise of authority in that sea? 



The next question is : 



2. How far were these claims of jurisdiction as to the seal fisheries recognized and 

 conceded by Great Britain! 



