140 ORAL ARGUMENT OF JAMES C. CARTER, ESQ. 



Tliere yon liave distinct evidence tlint wliat was in tlie minds of the 

 frainers of this treaty was nothing bnt ri.^lits in seal fislieries. Those 

 rights in seal tisheries miglit involve indeed a right to exercise an excep- 

 tional authority on the sea. They might involve that, but only as a 

 means of pi-otection. We perceive that by the second section, these 

 claims of jurisdiction are con lined to claims of jurisdiction as to seal 

 tisheries. "Jurisdiction" means there authority ^poicer. It means rights 

 to exercise jiower on the high seas in relation to the seal fisheries. 



3. Was tbe body of water now known as the Belirinjjj Sea inchidec) in the phrase 

 "Pacilic Oeean'' as used in the treaty of 1825 between Great Britain and Knssia^ and 

 what rights, if any, in the Behring Sea were held and exclusively exercised by 

 Russia alter said 'J'reaty? 



That clause does not require any comment. 



4. Did not all the rights of Russia as to jurisdiction and as to the seal fisheries in 

 Behring Sea east of the water boundary in the Treaty between the United States 

 and Russia of the 30th of March 1867 pass unimpaired to the United States under that 

 Treaty f 



There again rights of Russia as to jurisdiction and as to the seal 

 fisheries are mentioned together. They are coupled together. They 

 are rights of jurisdiction only so far as the protection of the seal fish- 

 eries require tlie exercise of something which they choose to call 

 jurisdiction. 



5. 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 iu Behring Sea, when 

 such seals are found outside the ordinary three-mile limit"? 



Apparently that puts a question, not of jurisdiction at all, but merely 

 a question of property; but the Arbitrators will observe that it is a 

 question of property "when such seals are found outside of the ordi- 

 nary three-mile limit;" and, of course, property thus situated neces- 

 sarily su}»poses some power or authority to protect it there, and there- 

 fore includes the question of jurisdiction in the sense of authority. 



Article 7, following that, says: 



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

 the United States shall leave the sul)ject in such position that the concurrence of 

 Great Britain is necessary to tbe estal)lishuient of Regulations for the proper protec- 

 tion and preservation of the fur-seal iu, or habitually resorting to, the Behring Sea, 

 the Arbitrators shall then determine Avhat concurrent Regulations outside the juris- 

 dictional limits of tlie respective Governments are necessary, and over what waters 

 such regulations should extend, and to aid them in that determination the report of 

 a Joint Commission to be appointed by the respective Governments shall be laid 

 before them, with such other evidence as either Government may submit. 



I rather think that that article 7 regards all the five questions as 

 properly describable as questions as to exclusive jurisdiction, and con- 

 templates them as such. 



It will therefore be seen that this confusion between these two sub- 

 jects has found its way into the draft of this treaty. 

 _ Having concluded my argument in relation to tiie rights of jurisdic- 

 tion acquired by Eussia in Bering Sea, as it is called,! wish to state 

 to the learne<l Arbitrators how those facts bear ui)on the answers which 

 are to be given to the first four questions submitted to tlie Tribunal by 

 the Treaty. In our view these are the answers which should be given 

 to them. 



The first question, "What exclusive jurisdiction in the sea now 

 known as Bering Sea" etc., should be answered thus: 



First. Russia never at any time i)iior to the cession of Alaska to the United States 

 claimed any exchisive jurisdiction in the sea- now known as P>ering Sea, beyond 

 what are commonly termed territori;il waters. She did, at all times since the year 



