COUNTER-CASE OF GREAT BRITAIN. 67 



the contentions occur are not, in every instance, set out at 

 sufficient length to show that the claim is one of right, a 

 perusal of the context, or a reference to their place in the 

 argument, will make it abundantly clear. 



DISTINCTION BETWEEN RiaHT OF PROTECTION AND 



PROPERTY. 



Eight of protection is quite distinct from property, and 

 when involving, as is suggested in the United States Case, 

 the adoption of "necessary measures" (Contention 3), and 

 the employment of "i-easonable force" (Contention 6), 

 implies jurisdiction over the waters to which the right 

 extends. Jurisdiction may exist without property, and 

 property without jurisdiction. Thus, in territorial waters, 

 every nation has a jurisdiction, which justifies the exclu- 

 sion of foreigners from fishing; yet, by the law of both 

 Great Britain and the United States, a fish swimming at 

 large in such waters is not the subject of property. 



RIGHT OF PROTECTION CLAIMED, INDEPENDENT OF THE 

 JURISDICTION OVER BEHRING SEA ALLEGED TO HAVE 

 BEEN ACQUIRED FROM RUSSIA. 



It wi-11 be observed that, by the second pf the contentions 

 set forth at the head of this Chapter, a right of protection 

 over the fur-seals [L e. a jurisdiction entithug the United 

 States to iirotect them) is claimed independently of the 

 jurisdiction over Behring Sea, described in Contention (1.) 

 as au " unusual jurisdiction," which is alleged to have been 

 exercised by Eussia, and transferred to the United States 

 in ISOT. Further, by Contention (6.), " no part of the high j^.^^^o part of the 

 sea" is excepted from this right of protection. But if itceptetf tvom thfa 

 be true, as propounded in Contentious (2.) and (6.), when^J^^'* °^ protec- 

 read together, that, on general principles, nations having 

 "an interest, an industry, and a commerce" in fur-seals, 

 have a right to protect those animals, exercisable over the 

 high seas generally, then acts by Eussia, had there been Actsofprotec- 

 such, justifiable by virtue of such a right, would afford no thZ'ebeen'sucbf 

 evidence whatever of the "unusual jurisdiction" over onewouM aubni no 

 portion of those seas, alleged to have been exercised by g-alyinsdicti'on 

 Eussia. In fact, the 1]wo arguments are mutually destruc-o^er Behring 



five. If the right attached to Eussia by virtue of 

 77 her interest in the fur-seals, its exercise would afford 



no evidence of any title to au unusual jurisdiction. 

 Yet, in Contention (1), the allegation that Eussia exercised 

 jurisdiction for the pi-otection of fur-seals, is relied on as 

 the main proof of her prescriptive title to Behring Sea and 

 of the unusual jurisdiction arising from that title. That 

 Behring Sea was used as a passage to the Arctic Ocean, is 

 there expressly admitted; that the prohibition against 

 whaling within 100 miles from the shore was not strictly 

 enforced, is also there admitted; nor is one instance of its 

 entorcement even alleged: but it is said, that "so far as 

 the fur- seals are concerned," the unusual jurisdiction was 

 always exercised. 



