260 ORAL ARGUMENT OF JAMES C. CARTER, ESQ. 



kind. It will be seen tliat tlie treaty itself possesses two principal 

 aspects. One of tbeni calls upon tliis Tribunal to determine certain 

 (juestions affecting assertions of right upon the part of the United 

 States, which questions, were they decided in favor of the United 

 States, would, or might, presumably, confer upon that nation the right 

 to exercise this power of protection, and render any further considera- 

 tion of the question of protection needless. The next feature of the 

 treaty is that, if those questions should be determined adversely to 

 the United States, so that that Government would not have the power 

 itself to take measures for the preservation of the seals, then the Tri- 

 bunal should consider what measures the two nations should take con- 

 jointly with each other to that end. 



There is, or may be, a question as to the interpretation of article VII 

 of the Treaty, which I will now read : 



If the (leterinination of tlio foregoiug questions as to the exchisive jm'isdiction of 

 the United States shall leave the sul)ject iu such position that the concnrrenee of 

 Great Britain is necessary to the establishment of Re<;ulations for the projier ]iro- 

 tection and ]iveservation of the fnr-seal in, or habitnally resorting to, the Behring 

 Sea, the Arbitrators shall then deterniintj what conenrrent Regnlatious outside the 

 .inrisdietional limits of the respective Governments are necessary, and over what 

 waters such Regulations should extend, and to aid them in that deterjnination the 

 report of a Joint Commission to bo appointed by the respective Governments shall 

 be laid bef()r(!.them, with such other evidence as either (Government may submit. 



The High Contracting Parties furthermore agree to coliperate in securing the adhe- 

 sion of others Powers to such Regulations. 



The language which is used iu the beginning of this article is "If 

 the determination of the foregoing questions as to the exclusive juris- 

 fliction of the United States". There are five foi^egoiug questions and 

 all the five seem to be embraced by that language. And yet when we 

 look to the last of those five questions, we find it to be, "Has the United 

 States any right, and if so, what right, of protection or property in the 

 fur-seals fre(}uenting the islands of the United States in Behring Sea 

 when such seals are found outside the ordinary three mile limitP' That 

 does not appear, on its face, to be a question relating to the exclusive 

 jurisdiction of the United States, and therefore it would not, on its face, 

 appear to be proi^erly described by the language with which the seventh 

 article begins. 



My own impression is that that fifth question is regarded by this 

 seventh article of the treaty, as a question relating to the exclusive 

 jurisdiction of the United States, using that word ^'jurisdiction^' in the 

 sense iu which it is so often used, in the sense of power. In other words, 

 the Treaty regards the question, whether the United States has any 

 exclusive pr()i)erty interest in the seal herd, and an exclusive right to 

 protect them upon the high seas, as a question of jurisdiction on the 

 high seas; proceeding upon the view that if the United States has the 

 exclusive property in them, or a property in this industry which justi- 

 fies them in exercising a right of ])rotection, that it has the exclusive 

 right of protection upon the high seas, and that that is pro}>erly enough 

 styled a (]uestion of "jurisdiction". I myself incline to that interpre- 

 tation, but as I have already said in a former part of my argument, it 

 is not necessary to go into any nice inter[)retation of the language in 

 that particular; for whichever interpretation we adopt, the same result 

 is ]nactically reached. 



1 say it is of no ]n'actical consequence Avhich view is adopted. The 

 same result will follow, whatevoT answer is given to this (piestion of 

 interpretation; for all the five questions are to be determined before 

 the Tribunal is called upon to consider the question of regulations; and 



