APPENDIX TO COUNTER-CASE OF GREAT BRITAIN. 295 



Counter-Case to be prepared by hiin, leaving the United States without 

 any means of contradicting, limiting, or qualifying them, however open 

 they may be to contradiction, limitation, or qualitication.'^ 



The Government of Her Britannic Majesty cannot admit that there is 

 any foundation for tliese comjilaints, which seem to be based upon a 

 construction of the Treaty which, in their belief and in the opinion of 

 their advisers, is erroneous. 



The scheme of that Treaty provides that the five questions submitted 

 in Article VI should be kept distinct from, and that the decision thereon 

 should be prior to, the consideration of any question of concurrent 

 Eegulations, which consideration would only become necessary in the 

 event of the five points being decided unfavourably to the claim of the 

 United States. The sixth Article requires that a distinct decision shall 

 be given on each of these points, while the seventh Article provides that 

 "if the determination of the foregoing questions as to the exclusive 

 iurisdictiou of the United States shall leave the subject in such position 

 that the concurrence of Great Britain is necessary to the establishment 

 of Eegulations for the proj^er protection and preservation of the fur- 

 seal in, or habitually resorting to, Behriug Sea," the Arbitrators shall 

 then determine what concurrent Eegulations are necessary, and that 

 "to aid them in that determiiuition, the Eeport 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." 

 6 It will be noted that the seventh Article of the Treaty refers 



only to the Eeport of a Joint Commission, and it is only by the 

 ninth Article alone provided that the joint and several Eeports and 

 recommendations of the Commissioners may be submitted to the Arbi- 

 trators, " should the contingency therefor arise." 



The event therefore on the happening of which the Eeport or Eeports 

 and further evidence are to be submitted is thus indicated by the 

 Treaty; — that event being the determination of the five points sub- 

 mitted in the sixth Article unfavourably to the claim of the United 

 States, and so that the subject is left in such a position that the con- 

 currence of Great Britain is necessary for the purpose of establishing 

 proper Eegulations. 



It will be noticed further that the inquiries of the Commissioners are 

 confined by Articles VII and IX to the question of Eegulations, and 

 have no reference to the points raised by Article VI. 



It is clear, therefore, that by the Treaty it was intended that the 

 Eeport or Eeports of the Commissioners should be produced, not as 

 part of the Case upon the questions stated in Article VI, but at a later 

 stage, then only in the contingency above referred to. 



With regard to point 5 of Article VI, the Government of Her Britan- 

 nic Majesty, believing that the alleged "right of property or property 

 interest" depends upon questions of law, and not upon the habits of 

 seals and the incidents of seal life, have stated propositions of law which 

 in their opinion demonstrate that the claim of such right is not only 

 unprecedented, but untenable. These propositions will be found at pp. 

 135 to 140, 153 to 157, and propositions 15, 16, and 17 on p. IGO of the 

 Case of this Government. 



This being the view of the Government of Her Britannic Majesty, it 

 would have been altogether inconsistent with it, and, indeed, as they 

 conceive, illogical and improper, to have introduced into the British 

 Case matter which, in the opinion of Her Majesty's Government, can 

 only be legitimately used when the question of concurrent Eegulations 

 is under consideration. 



