^^M^Mi 
 
 
CORNELL LAW UMAEf 
 
 From the Library of the Late 
 
 ROBERTS WALKER 
 
 Friend and Partner of Justin DuPratt White (Cornell 'go) 
 
 Presented to Cornell University 
 
 In Memory of That Relationship 
 
 by 
 
 MR. WALKER'S FAMILY 
 
JX 238.F82P53""""'"''*'"-"""'' 
 
 Fur-seal arbitration :oral argument of E 
 
 3 1924 017 136 684 
 
Cornell University 
 Library 
 
 The original of tiiis book is in 
 tine Cornell University Library. 
 
 There are no known copyright restrictions in 
 the United States on the use of the text. 
 
 http://www.archive.org/details/cu31924017136684 
 
PUR-SEAL ARBITRATION. 
 
 ORAL ARGUMENT 
 
 OF 
 
 EDWARD J. PHELPS 
 
 ON BEHALF OF 
 
 THE UlSriTED STATES. 
 
 AT PARIS, JUNE 22-JULY 8, 1893. 
 
 Reprinted from the official publication of the Proceedings by the 
 United States Government. 
 
 WASHINGTON: 
 
 GOVERNMENT PRINTING OFFICE. 
 18 95. 
 
FUR-SEAL ARBITRATION. 
 
 ORAL ARGUMENT 
 
 OF 
 
 HOE". EDWARD J. PHELPS, 
 
 ON BEHALF OF THE UNITED STATES. 
 
 B g, PT XT 1 
 
FORTY-THIRD DAY, JUNE 22'*'", 1893. 
 
 Mr. Phelps. — I congratulate the Tribunal, Mr. President, on its 
 approach to the end of this debate; I cannot express my regret that 
 my duty compels me at this late day to continue it. It has had much 
 to commend it to your attention ; it has presented most important and 
 interesting questions; it has been dignified by the occasion and the 
 circumstances that have attended it; it has been adorned as well as 
 elucidated by the distinguished advocates who have preceded me; but 
 it is impossible not to feel now, that it has been prolonged beyond all 
 our. anticipations, and that the whole subject has become a weariness. 
 The inexhaustible patience, the more than kindly courtesy which you, 
 Sir, and your eminent associates have accorded to us, have been men- 
 tioned in appropriate terms by my learned friends on the other side. 
 It is not for them, it is not for us, to thank you; the acknowledgment 
 should come, and will come, no doubt, in due time, from the great 
 Nations at whose invitation and for whose benefit you have under- 
 taken this onerous task. To that patience and kindness I have still to 
 appeal, most reluctantly, and perhaps at some length. It would be a 
 very undeserved compliment to the able arguments we have listened 
 to during these twenty-eight days from my learned friends on the other 
 side, to assume that they could be brushed hastily aside. 
 
 The discussion, Sir, has taken a wide range. I do not complain of 
 it; I have no right to complain of it. It is not for me to assume to set 
 bounds to the limits of this subject, or to prescribe the considerations 
 upon which it has to be determined. That is a matter entirely for the 
 better and less partial judgment of the Tribunal. It is for me, how- 
 ever, and it will be my endeavour, to recall the discussion to the real 
 questions we conceive to be involved, and to the real grounds upon 
 which, as we believe, their determination must proceed. 
 
 Now, Sir, what are the questions proposed by the Treaty for decision? 
 They are chiefly two, the one the alternative of the other. The first is, 
 (and in one view of the case it is the only question), whether the Cana- 
 dian sealers and the renegade Americans who Seek the protection of 
 the British flag in order to defy with impunity the laws of their coun- 
 try, have a right to which the United States must submit, to continue 
 the destruction in which they have been engaged. 
 
 Several other questions are in form propounded by the Treaty. They 
 are but incidental and subsidiary to this. They cannot be made other- 
 wise than secondary, because in their very nature they are so. They 
 are only important so far as the answer to them throws light (if it does 
 throw light) upon the only question ever in dispute between the two 
 countries on that subject — does the right exist in these individuals to 
 continue the business they have been engaged in? When you have 
 decided that, you have decided all that is in dispute. Until you have 
 decided that you have decided nothing. It is useless to explore the 
 dead bones of the diplomacy of seventy-five years ago, to try and ex- 
 tract a meaning from language which perhaps was employed to conceal 
 
 3 
 
4 ORAL ARGUMENT OF HON. EDWARD J. PHELPS. 
 
 meaning, unless by so doing, assistance can be obtained in deciding 
 this principal question. 
 
 What then is the business these men have been engaged in? It is so 
 long since this case was stated, that perhaps I may be excused for briefly 
 restating it. The Islands have been in possession of Eussia, down to 
 the time when they were ceded to the United States, ever since their 
 discovery. They were discovered and first occupied by Eussia, and her 
 title has never been questioned, and is not questioned now. I^early 
 one hundred years ago that country established upon the Islands an 
 industry, a husbandry, in the protection and management of the seals 
 which resorted there in almost countless numbers. Whatever else took 
 place between Eussia and other countries, that industry remained unim- 
 paired, undisturbed. Eo man, no nation, ever claimed in any instance 
 which the preparation of the case on either side has disclosed, the 
 right to go there, to touch one of these animals, or to interfere in any 
 way whatever with the industry that Eussia was carrying on. In 1867 
 the province of Alaska, including those Islands, was transferred to the 
 United States for a large consideration, between seven and eight million 
 dollars, and, as I shall have occasion to show later in the case, the exist- 
 ence of that industry, which was all that gave the province any present 
 or immediately future value, was the chief inducement to the purchase. 
 After that, considerably later, not to any serious or appreciable extent 
 till 1884 perhaps, they began from Canada to destroy these seals; and 
 in what way? What is it they have since been doing, and which they 
 claim the right to continue to do? It is the extermination of the race. 
 If we have not proved that, we have not proved anything. 
 
 I shall not take leave of you, Sir, if that question can be said to be 
 still in doubt, without demonstrating from the evidence the absolute 
 correctness, the absence of all exaggeration in the statement I have 
 made. It is a matter of evidence, printed and lying before you, out of 
 which any intelligent man who will give time enough and trouble 
 enough, can make it perfectly apparent that the process that is being 
 carried on is the extermination of the race of seals. . How? By destroy- 
 ing on their annual passage to the Islands the females pregnant with 
 young, just about to be delivered, in large numbers, 80 or 85 per cent 
 of the whole catch being of that sort, and the destruction, after their 
 youTig have been born, of the mothers who are nursing them, and who 
 go out to sea for sustenance, and if destroyed, leave their young to 
 starve on the islands. 
 
 That is the method of the destruction. That is the result which is 
 claimed here as a right — as a part of the freedom of the sea to which a 
 great nation must sutftnit, not at the hands or for the benefit of another 
 nation or even a province, but for a little knot of adventurers of one sort 
 and another who find their temporary and miserable profit in that sort of 
 business. Coming as they do from both nations, it is only just to say that 
 we cannot charge all of this upon Canada, except so far as the flag of 
 Great Britain enables Americans to join with the Canadians in this 
 employment. It is the right to do that thing, in that way, with those 
 consequences, that is in question in this case, and which is asserted on 
 the part of Great Britain on this hearing — never before — and denied on 
 the part of the United States. 
 
 Now, Sir, how has that question been met by my learned friends? 
 It has not been met. All the resources of the most accomplished advo- 
 cacy have been exhausted in escaping from it — in avoiding it in 
 
 circumventing it — in approaching it from every direction except the 
 straight forward one. My learned friends have felt as any man must 
 
ORAL ARGUMENT OP HON. EDWARD J. PHELPS. 5 
 
 feel, who is capable of feeling, that the bare statement of this case in 
 its naked and simple facts, exactly as they are established, involves 
 a proposition it is impossible to encounter : that there is no law, there 
 is no learning, there is no pretense of justice that can possibly encounter 
 such a proposition with success. It must therefore be approached 
 indirectly. Your minds, as my learned friend, the Attorney General 
 said, must be "prepared" before you can examine it. He devotes a 
 couple of days of argument to preparing your minds. What preparation 
 does a judicial tribunal need for meeting a case that is brought before 
 it? What is a tribunal expected to do except to look the case square 
 in the face, ascertain the facts, and apply to those facts the law? 
 
 What is my learned friend's recipe for the preparation of a judicial 
 Tribunal so that they may be brought indirectly to a result it would be 
 impossible to propose to them directly ? Why, you must get rid of your 
 ideas of right and wrong, because that is not law. Ton must bear in 
 mind that you do not sit to do right; far from it; you sit to administer 
 the law, which is, or maybe, a very different thing from the right. Ton 
 must remember that the extermination of the seal is not a matter of any 
 very great consequence, after all, since it only involves the ladies going 
 without their sealskin cloaks ; and that, as to cruelty, that always accom- 
 panies the taking the life of an animal. You cannot help that, and, if 
 yovi give him what they are pleased to call "a fair sporting chance" for 
 his life, aU the dictates of humanity are answered. 
 
 Then the discussion of the case is taken up by starting at some remote 
 point and coming down sideways so as to consider abstract propositions, 
 and not the actual concrete case that is put before you. A day or two has 
 been devoted to arguing the question of the legality of the seizures of 
 the British vessels made by the United States Government in 1886 and 
 1887. What have you to do with that? Is any such question proposed 
 for decision by the Treaty ? The only function the Tribunal is entrusted 
 with, or needed to be entrusted with on that subject, is to find such 
 facts, at the instance of either party, as the party might think would 
 be material in future negotiations, provided the facts are true. But 
 those facts are all agreed upon ; they are put in writing, and submitted 
 to the Tribunal, and there is no question about them. There never 
 was. They are notorious, well understood, undeniable facts. A little 
 question as to the precise form of their statement arose, which was 
 easily accommodated between counsel; and the Tribunal is thus relieved 
 from the duty of finding any facts in respect of those seizures at all. 
 Then, for what purpose and upon what principle are two days devoted 
 to the argument of a question not before the Court, which may come up 
 between these Governments hereafter, or may not? It is probable that 
 it never will, because the whole amount in controversy on that point 
 is not worth a dispute or a prolonged debate. Mr. Blaine once offered 
 to pay it, as you have seen in this correspondence, if he could settle the 
 important rights of the country for the future in respect of this industry, 
 saying that it was too small to stand in the way, especially as the money 
 was going to individuals who might have supposed and probably did 
 suppose that they were authorized to do what they did. 
 
 It is because it was far more agreeable, and was felt by the accom- 
 plished advocates to be far more prudent to discuss some other question 
 than the right of the Canadians to exterminate the seals in this barba- 
 rous and inhuman manner, that my friends evade that point and say, 
 next, "let us talk about the right of search in time of peace". That is a 
 ground upon which they are formidable. We have had a large array of 
 authorities to show that the right of search does not exist in the time 
 
6 ORAL ARGUMENT OF HON. EDWARD J. PHELPS, 
 
 of peace. Well, wLo said that it did? Who has said anything about 
 the right of search ? Or the right of seizure ? That is as little involved. 
 
 Then, we are told that the question of Eegulations, which is the 
 alternative question to the principal one I have stated, alternative in 
 one event, must be discussed in an entirely different argument from 
 the question of the right. Why? We found no difflculty on our side 
 in taking up those two questions in their legitimate order. What is 
 the trouble with my learned friends? It is the same trouble. The 
 moment you begin to talk about Eegulations, you have to approach the 
 actual facts of this case. The moment you begin to talk about Eegula- 
 tions, this wretched business of the destruction of gravid females and 
 nursing-mothers stares you in the face; and it is not convenient to dis- 
 cuss the question of right in the light of such facts as that. It is much 
 better as an abstraction than as a reality. I might pursue, if it were 
 necessary, through the arguments of my learned friends, the straits to 
 which they have been driven in order to discuss this question abstract- 
 edly from the facts on which it arises, as if there ever was a question 
 of law in the world capable of being separated from the facts that gave 
 rise to it; as if it were possible, in the actual administration of justice 
 between man and man, or nation and nation, ever to separate or to 
 sever the question of law that is supposed to control, from the actual 
 facts and circumstances on which it depends. 
 
 A great deal of time has been devoted, also, to attempting to prove 
 that the CTnited States, earlier in this discussion, put itself principally 
 upon the ground of a derivative title from Eussia to close up Behring 
 Sea, or to do what is substantially equivalent to that, to extend terri- 
 torial jurisdiction over Behring Sea; and my learned friends seem to 
 be quite unhappy that we have not persevered in that proposition, 
 because they think they can triumphantly overthrow it. Tou have not 
 failed to observe that they have two stock propositions, the sheet-anchors 
 of their case. The first is that you cannot shut up the open sea. On 
 that they are powerful and triumphant. And the second is that a 
 municipal Statute is bounded in its operation by the limits of the terri- 
 tory in which it exists. To these they perpetually return, and really 
 seem to feel hurt that we should put the case upon very different grounds. 
 
 I am not going over the ground so well covered by my Associate, Mr. 
 Carter, who took the pains, unnecessarily, to point out how inaccurate 
 that was. If the memory of the demonstration he was able to make on 
 that subject has faded from the minds of the Tribunal (and it is long 
 enough ago, perhaps), I commend to the perusal of the Members, if 
 they attach any importance to this point, first, the printed Argument 
 of the United States, pages 27 to 40, and, secondly, the reported argu- 
 ment of Mr. Carter which is in print before you. I content myself (for 
 I shall try to read very little of this wearisome correspondence) with 
 supplementing the references he made with two letters which, in the 
 multiplicity of the papers, he omitted to refer to. 
 
 I will ask your attention to a letter in the third British Appendix 
 page 350, dated IJTovember 1, and addressed by Sir Julian Pauncefote 
 to the Marquis of Salisbury — a letter that of course we had no access 
 to and did not see, until it appeared in the British Case, and I shall 
 read but a few words from it. It is an account of the first interview he 
 had with Mr. Blaine on this subject when he arrived in the United 
 States as Minister of Great Britain, under instructions to renew the 
 negociations with regard to the Behring Sea. He reports the interview 
 nine days after he reached Washington. 
 
 I lost no time after my arriyal here on the 15th ulto. in seeking an interview with 
 Mr. Blaine on the Behring's Sea qnestion. 
 
ORAIi ARGUMENT OF HON. EDWARD J. PHELPS. 7 
 
 He states the conversation; and (in reply to what Mr. Blaine said), 
 remarks : 
 
 I observed that this appeared like an assertion of the mare olausum which I could 
 hardly believe would be revived at the present day by his Government or any other; 
 to which he replied that his Government had not officially asserted such a claim and 
 therefore it was unnecessary to discuss it. As a matter of fact there had been no 
 interference with any Canadian vessels in Behring's Sea except such as were found 
 engaged in the capture and destruction of fur-seals. But his Government claim the 
 exclusive right of Seal fishery, which the United States and Russia before them, had 
 practically enjoyed for generartions without any attempt at interference from any 
 other (jountry. The fur-seal was a species most valuable to mankind. And the 
 Behring's Sea was its last stronghold. The United States had bought the Islands in 
 that sea, to which these creatures periodically resort to lay their young and now 
 Canadian fishermen step in and slaxighter the seals on their passage to the islands, 
 without taking heed of the warnings given by Canadian Officials themselves, that 
 the result must inevitably be the extermination of the species. This was an abuse, 
 hot only reprehensible in itself and opposed to the interests of mankind, but an 
 infraction of the rights of the United States. It inflicted, moreover a serious injury 
 on a neighbouring and friendly State, by depriving it of the fruits of an industry on 
 which vast sums of money had been expended and which had long been pursued 
 exclusively, and for the general benefit. The case was so strong as to necessitate 
 measures of self-defence for the vindication of the rights of the United States and the 
 protection of this valuable fishery from destruction. 
 
 Now, Sir, if you care to consider the utterly immaterial question 
 whether the position of the United States as asserted by its counsel on 
 this trial difiers from that which was earlier taken by Mr. Blaine, I ask 
 you to discriminate if you can, between the position of Mr. Blaine at 
 the outset of these negociations, and the proposition I have endeavoured 
 to state to you to-day as being the only one this case presftjits. Sir 
 Julian gives the remainder of the interview, which I need not read — it 
 is before you — and, as corroborating what I said a little while ago about 
 the unimportance of these seizures, I will only read from the concluding 
 paragraph of the letter : 
 
 As regards compensation, if an agreement should be arrived at, he (Mr. Blaine), 
 felt sure that his Government would not wish that private individuals who had acted 
 iona fide in the belief that they were exercising their lawful rights should be the 
 victims of a grave dispute between two great countries, which had happily been 
 adjusted. He was not without hope therefore, that the wishes I had expressed might 
 be met, and that all might be arranged in a manner which should involve no humil- 
 iation on either side. 
 
 His tone was most friendly throughout and he manifested a strong desire to let all 
 questions of legal right and international law disappear in an agreement for a close 
 season, which he believes to be urgently called for in the common interest. 
 
 This is the report of the language of the dead statesman, coming to 
 us through the eminent representative of G-reat Britain in the United 
 States, Sir Julian Pauncefote, and published in their evidence. Surely, 
 no one who has Mr. Blaine's reputation at heart need blush for the 
 record thus made. And if the United States have been unfortunate 
 in this matter at all, it is that they did not adhere as Eussia did, firmly 
 and resolutely, to ground that was unanswerable, and never give way 
 for a moment to any suggestion of negotiation, or. settlement, or arbi- 
 trament, short of the plain necessity and justice of the case. 
 
 I shall refer to another letter, Sir, with your permission, which will 
 be found on page 365 of the same volume. This is again from Sir Julian 
 Pauncefote to the Marquis of Salisbury, is dated on the 12th of Decem- 
 ber, 1889, and to make it intelligible I first refer to a preceding letter 
 of December 7th, 1889, from Lord Salisbury to Sir Julian Pauncefote 
 on the same page : 
 
 I have been informed that a telegram has been received by the Secretary of State 
 for the Colonies from the Governor-General of Canada, reporting that his council 
 have expressed the following views in regard to reopening negotiations with the 
 United States Government on the subject of the Behring's Sea seal fishery. 
 
8 ORAL AEGUMENT OF HON. EDWARD J. PHELPS. 
 
 It is held by the Government of Canada, on evidence wliich tliey deem sufficient, 
 that no real danger exists of the extermination of the seal fishery in Behrmg s Sea. 
 They therefore contend that, if the United States Government are not of that opinion, 
 that Crovemmeut should make the proposals which they consider necessary for the 
 protection of the species. If, however, the renewal of negotiations is considered 
 expedient by Her Majesty's Government, Canada will agree to that course on the 
 following conditions : 
 
 If tMs formed an important chapter in the history of Great Britain, 
 the future historian might enquire which was the Empire and which was 
 the Province. Canada graciously informs Her Majesty's G-overnment 
 upon what terms she will agree to negotiations with the United States, 
 one of which is, 
 
 that the United States Government shall first abandon any claim to regard the 
 Behring's Sea as a mare olausum, and that any existing legislation in the United 
 States, which would seem to support that claim, shall be either amended or repealed; 
 
 Some other conditions are added which I will not stop to read; and 
 Sir Julian Pauncefote writes in reply : 
 
 Immediately on the receipt of your Lordship's telegram of the 7th instant, con- 
 taining certain proposals of the Dominion Government in relation to the Behring's 
 Sea question and instructing me to report whether, in my opinion, those proposals 
 furnished a basis of possible negotiation, I obtained an interview with Mr. Blaine 
 and I sounded him on the subject of Canada being directly represented in any diplo- 
 matic negotiations which might be renewed for the settlement of the controversy. 
 Mr. Blaine at once expressed his absolute objection to such a course. He said the 
 question was one between Great Britain and the United States, and that his Govern- 
 ment would certainly refuse to negotiate with the Imperial and Dominion Govern- 
 ments jointly, or with Great Britain, with the condition that the conclusions arrived 
 at should be subject to the approval of Canada. 
 
 I did not touch on the other proposals for the following reasons. 
 
 As regards the abandonment of the mare olausum claim, no such claim having been 
 officially asserted by the United States Government, they would naturally object to 
 withdraw it; and as regards the suggested amendment of their legislation, such a 
 proposal would gravely embitter the controversy, and is hardly necessary, as I con- 
 ceive that there is nothing in the terms of such legislation, if correctly interpreted, 
 with due regard to international law, which supports the mare clausum claim. 
 
 With those citations, Sir, I leave upon the argument of my learned 
 friend, Mr. Carter, the question, utterly immaterial I repeat, whether 
 the ground we have placed this case upon was or was not the original 
 ground asserted by the United States. I need not remind you, that 
 this subject engaged the attention of the previous administration to 
 that with which Mr. Blaine was connected, when the United States 
 began by seizing the sealing vessels in two successive years, and that 
 Mr. Bayard, the former Secretary of State absolutely declined to enter 
 into the discussion of these Russian questions. They ware introduced, 
 in the first place, by the Earl of Iddesleigh when Foreign Secretary of 
 Great Britain, in a letter through Sir Lionel West, then British Min- 
 ister, which elicited no reply except a courteous acknowledgment of its 
 receipt. Then they were brought forward again by Lord Salisbury in 
 another letter during Mr. Bayard's administration. And my learned 
 friend, the Attorney General very much complained that it met with 
 no response. On two occasions, in two successive Administrations, 
 through two Secretaries of Foreign Affairs on one side and two Secre- 
 taries of State on the other, it was attempted on the part of Great 
 Britain to carry this controversy into the field of old diplomatic diffi- 
 culties between Eussia and the United States, and Russia and Great 
 Britain. The United States declined to discuss it, and, as has been 
 pointed out — I shall not go over it again — always asserted through Mr. 
 Bayard, as well as through Mr. Blaine, the proposition I have stated. 
 
 It is true that Mr. Blaine was afterwards drawn by the great adroit- 
 ness of Lord Salisbury — a diplomat of very great ability, sagacity and 
 
ORAL ARGUMENT OP HON. EDWARD J. PHELPS. 9 
 
 experience — few men living are perhaps his equal — and who felt quite 
 as strongly as my learned friends feel that England could not put itself 
 on record before the world by justifying the action of Canada, to transfer 
 the discussion in some measure from the actual facts that were going on 
 in Behring Sea and the North Pacific, to the old story about the Ukase 
 of 1821 put forth by Russia and subsequently more or less modified at 
 the instance of the two countries. Finally, Mr. Blaine was drawn 
 into a discussion of this, and 1 need not say, discussed it with great 
 ability. We shall not shrink from that discussion at its appropriate 
 place, as a support and corroboration to a title which we prefer to put 
 in its origin on stronger and clearer grounds. And when it is said that 
 Mr. Blaine remarked that if the Behring Sea was included in the 
 Pacific Ocean within the meaning of the Treaties of 1824 and 1825, the 
 United States had no further claims, we will see whether such a remark 
 was justified or not, and whether he could not have safely stood there. 
 It is not because we hesitate in attempting to support the views 
 expressed by Mr. Blaine in this correspondence, that we put those ques- 
 tions in a secondary place. It is because they are secondary, necessa- 
 rily and unavoidably, and could not bemade otherwise, even if we agreed 
 to consider them as primary. 
 
 Then, say my learned friends, still avoiding the plain issue of fact, 
 this is' a question of the freedom of the sea. You must beware how 
 you step. You are approaching dangerous ground. You are in danger 
 of interfering with the freedom of the sea; and, in the Attorney Gen- 
 eral's concluding observations the other day, he remarked in very elo- 
 quent language, which his own emotion showed was not mere rhetoric, 
 that the question is one of the freedom of the sea, important far beyond 
 and above the preservation of the seal. 
 
 It is a question of the freedom of the sea. I accept that issue. I 
 agree that it is a question of the freedom of the sea, but it is not 
 whether the sea at this day is free in the general acceptation of that 
 term. That question has been settled for more than a century, and the 
 United States is the last Government in the world that could afford to 
 have the determination of it changed. Not all the seals in the world 
 would compensate the United States for having the freedom of naviga- 
 tion, of commerce, of passage, and of use of all the open seas of the 
 globe fail to be maintained intact. But the question is, what are the 
 limits of the freedom of the sea? How far does it go? Where does it 
 stop? Is it mere absence of restraint, the absence of law; an unbridled 
 and unlimited freedom to do on the sea what the laws of all civilized 
 countries repress everywhere else? Is that. what was conceded by the 
 nations, when a hundred years ago they came by common consent to 
 change the old doctrine of mare clausum that had always prevailed till 
 then, whenever it was found desirable by a maritime nation to assert 
 it, into the doctrine of mare liberum? How much did they give away? 
 How much did they surrender? Why the moment you attempt to give 
 freedom such a definition upon the high sea as it obtains nowhere 
 else on earth, you restore piracy; you restore every outrage capable of 
 being perpetrated on the sea. It is manifest that is not what the free- 
 dom of the sea means. It has limits; there are things we cannot do 
 upon the sea; there are bounds we cannot overstep. Where does 
 freedom begin to be regulated by law? I shall come to that further on. 
 
 Now, in passing away for the present from the subject of the freedom 
 of the sea, our general proposition, which I may state as well here as any- 
 where, is this : — that this slaughter of the seals, which I have attempted 
 to describe, is, in the first place, barbarous and inhuman, and wrong in 
 
 I 
 
10 ORAL ARGUMENT OF HON. EDWARD J. PHELPS. 
 
 itself. In the next place, it is contrary to those rules of law which are 
 established by the municipal government of every civilized country on 
 earth for the protection of all wild animals that are of any value and, 
 to a certain extent, of those harmless wild animals that may be said to 
 be of no pecuniary value. In the third place, it is the destruction of 
 an important and valuable industry, long established and maintained by 
 the United States on the Islands, to which these seals are appurtenant; 
 to which they are attached; where they belong; where alone they may 
 be made the subject of any husbandry that is not extermination. And, 
 finally, that this extermination of a race of animals, a race that have 
 not only their own right to live as long as they can live harmlessly, but 
 are a valuable race to mankind, to commerce, to trade, to an industry 
 supporting many people, is conduct that the freedom of the sea does 
 not embrace, and that no individual, whether he can make a profit out 
 of it or not, has a right to do upon any part of the high sea, an act of 
 that character, entailing such consequences. 
 
 It is important before entering upon the discussion of the exact 
 question of legal right which I propose to address myself to, to consider 
 what has been up to the commencement of this trial the attitude of 
 these nations with respect to the question, not for the purpose of show- 
 ing, as my learned friends have attempted, that either side has laid 
 greater stress later on than they did in the beginning on particular 
 points — ^that is of no consequence — but to show what in our judgment 
 is important to be understood and taken into account. 
 
 I may briefly allude to the correspondence which has been read, 
 which I need not go over again. The first thing was the seizure of 
 these vessels in 1886. It was followed by letters of inquiry from Great 
 Britain, later on by letters of remonstrance not at all upon the ground 
 of defending the vessels in what they were doing, but upon the question 
 whether whatever that conduct was they could be seized in the manner 
 in which they were seized and condemned by the United States Govern- 
 ment. Mr. Bayard's first letter in reply was one in which briefly, some- 
 what indirectly, but very distinctly, the general right of the United 
 States was affirmed. But he presently took a different — perhaps not 
 a different — ^but a more desirable view. Experienced statesmen and 
 diplomatists do not need to be told how important it is for nations to 
 avoid the discussion of abstract questions as long as it can be avoided. 
 No good comes from it. It is not their business to enlarge the learning 
 of the world. It is not in their power to change the law of the world 
 except as between themselves, and therefore, wise statesmen avoid ab- 
 stract discussion, and endeavour to meet the exigency of the particular 
 case. They prefer the precept of scripture. "Agree with thine adver- 
 sary quickly while thou art in the way with him, lest the adversary 
 deliver thee to the judge ". Mr. Bayard, a large-minded far seeing man, 
 of that sagacity which is the sagacity of wisdom and not of cunning, 
 saw at once that instead of entering into the endless debate about the 
 extension of abstract principles to this case, it were far better for two 
 nations of the same race and blood, having a common interest and a 
 common law, to agree to settle this dispute, and to leave the abstrac- 
 tions to such future generations as should be unfortunate enough to be 
 obliged to settle them. Therefore leaving the question of right and 
 putting it aside, but not for a moment receding from it, his suggestion 
 was "Cannot we agree? Tou are as much influenced by the dictates 
 of humanity, and justice as we are: — Tour interest is the same as ours. 
 Tou desire to do right as we do; let us agree." 
 
ORAL AEGUMENT OF HON. EDWARD J. PHELPS. 11 
 
 He made that proposal not only to Great Britain but to Enssia and 
 Japan, who are interested in the matter of the seals, and to various other 
 nations who are not. I need not read again the letter he addressed to 
 M. Vignaud, the Secretary of Legation in Paris, and which in the 
 same words was sent to the other American Ministers, proposing that 
 in this work of humanity and justice all should concur, and waive the 
 question of the United States to assert itself in its own defense. 
 
 I wish to read one letter not before read, from Mr. Lothrop, a very 
 able American lawyer then Minister of the United States, at St. Peters- 
 burgh, addressed to the Secretary of State in response to this com- 
 munication. It is to be found in the first volume of the United States 
 Appendix, page 192, and is dated December 8th 1887. 
 
 Sir, I have the honor to transmit herewith the translation of a note from the 
 Foreign Office, received at the legation yesterday, on the proposition of the United 
 States for an international agreement tonching the capture of seals in Behring Sea. 
 The earnestness felt here in the matter is plainly indicated by the language of the 
 note, which speaks of unrestrained seal-hunting as a thing which not only threatens 
 the wellbeing but even the existence of the peojile of the extreme north-east coast. 
 
 This language represents a view which I have heard here in conversation, of 
 course not officially, and which is substantially as follows: 
 
 The seal fishery on our Behring coasts is the only resource our people there have; 
 it furnishes all the necessaries of life; without it they perish. Now, international 
 law concedes to every people exclusive jurisdiction over a zone along its coasts 
 sufficient, for its protection; and the doctrine of the equal rights of all nations on 
 the high seas rests on the idea that it is consistent with the common welfare and not 
 destructive of any essential rights of inhabitants of the neighboring coasts. 
 
 Such common rights, under public law, rest on general consent, and it would be 
 absurd to affirm that such consent had been given where its necessary result would 
 be the absolute destruction of one or more of the parties. Hence the rule cannot be 
 applied blindly to an unforeseen case, and these alleged common rights must right- 
 fally be limited to cases where they may be exercised consistently with the welfare 
 of all. Behring Sea partakes largely of the character of an inclosed sea; two great 
 nations own and control all its inclosing shores. It possesses a peculiar fishery, 
 which, with reference to its preservation, can only be legitimately pursued on laud, 
 and even there only under strict regulations. To allow its unrestrained pursuit in 
 the open waters of' the sea is not only to doom it to annihilation, but, by necessary 
 consequeQce, to destroy all its coast inhabitants. If this result is conceded it fol- 
 lows that the doctrine of common rights can have no application to such a case. 
 
 I have thought it might not be uninteresting to give this as a view which has 
 found expression here, and. If found necessary, I think it not improbable that Rus- 
 sia would feel that she was driven to act on it. 
 
 The note of Mr. de Giers is enclosed by Mr. Lothrop in this commu- 
 nication. I will read it. It is very brief, 
 
 Mr. Minister.— Mr. Wurts, under date of August 22 (September 2), was good enough 
 to communicate to me the views of the Government of the United States of America 
 upon the subject of the desirableness of an understanding, among the goverDments 
 concerned, for the regulation of the taking (la chasse) of the fur-seal (loutres) in the 
 Behring Sea, in order that an end might be put to those inconsiderate practices of 
 extermination which threaten to dry up, at their source an important branch of 
 international commerce. 
 
 We concur entirely in the views of the Government of the United States. Like it 
 we also have been for a long time considering what means could be taken to remedy 
 a state of things which is prejudicial not only to commerce and to revenue, but 
 which will soon work disastrous results, not only to the well-being but even to the 
 existence of our people in the extreme Northeast. The establishment of a reasonable 
 rule, and of a lawful system in the use {V exploitation) of the resources, whichfurnish 
 their only industry, is for those people of vital importance. 
 
 The pressing interest which the Imperial Government has been thus called to con- 
 sider had already suggested to it the idea of an international agreement, by which 
 this interest might find its most efficient protection. It is by this way that the dif- 
 ferent questions involved can be best resolved, and among which there exists, in our 
 opinion, a close connection. 
 
 It was after the writing of that letter of Mr. Bayard's to Mr, Yignaud, 
 certainly before it was received at the Foreign office of Great Britain, 
 that the letter I have before alluded to from Lord Salisbury came, in 
 
12 ORAL ARGUMENT OF HON. EDWARD J. PHELPS. 
 
 which for the first time, as far as he was concerned, though it had been 
 mentioned before by Lord Iddesleigh, he introduced the discussion of 
 tlie old Kussian pretensions, — the letter to which my learned friend 
 comi)lains that Mr. Bayard did not reply. In the meantime, however, 
 which is probably one reason why Mr. Bayard did not think it necessary 
 to enter into that dispute, he had transmitted to the United States Min- 
 ister at London instructions to approach the British Government, and 
 to ask for a Convention by which the seals might be protected, not upon 
 the ground that the Government had not a right to protect itself, but 
 upon the ground I have stated, upon which it was far better to reach 
 that result, as he was sanguine, and justified in the belief as the event 
 showed, that it would be immediately accorded by Great Britain. What 
 was the result of that proposal? There was a little delay, explained in 
 the correspondence on the part of the Minister in London, on account 
 of the absence of Lord Salisbury, perhaps in the belief that such things 
 would be better discussed personally than on paper; but when the Min- 
 ister and Lord Salisbury met, the whole matter was settled in one inter- 
 view; a second was not necessary. The proposition of the United 
 States for a close time in the killing of the seals between the 1st of 
 April and the Istof November, subsequently modified, I may say, to the 
 loth of October, was agreed to; and there on the map [Pointing], are 
 the boundaries to which it was extended. I am speaking of it as it was 
 originally; it was enlarged afterwards. Between the United States 
 Minister and Lord Salisbury, an Agreement covering the water com- 
 prised within those lines and excluding within that limit all the seals 
 killed between the 1st of April and the 15th of October was agreed to. 
 I do not mean to say that a Treaty was made; but it was agreed that 
 one should be made. 
 
 Now, my learned friend, Mr. Eobinson, yesterday alluded to what he 
 thought proper to call "the misunderstanding" between the Minister 
 and Lord Salisbury, in respect to the agreement I have referred to. If 
 it was that, it would not play much of a part here ; and, therefore, I may 
 usefully enough pause to consider whether it was a misunderstanding, 
 or a very explicit and direct understanding on both sides. My learned 
 friend, with a sort of compassion for the weakness of Lord Salisbury, 
 which, I presume, his Lordship does not feel the need of, intimates that 
 nobody could be less informed on matters connected with seals than 
 Lord Salisbury ; and that he was the kind of a statesman who when 
 the proposal was made, would fall immediately upon the neck of the 
 United States Minister, and say. — "By all means; anything you want 
 in a Treaty between two great nations, I shall be only too happy to 
 agree to. Let us swear eternal friendship". Those who know that 
 statesman do not need to be told that his weakness does not lie in that 
 direction. He does not speak before he thinks; he thinks before he 
 speaks. He does not make Conventions or Agreements of any kind to 
 bind his country, until he is quite sure that he understands what they 
 mean. 
 
 And I am going to take the trouble to show you that Lord Salisbury 
 did perfectly understand what he was about, and that in the course of 
 the negotiation, which continued about the details of this agreement 
 up to the time when it disappeared, never having been recalled by him 
 or by Great Britain, when the United States made up their mind that 
 it would not go any further, he had all the information from all quar- 
 ters that existed, and that at no time did he intimate that in making 
 the agreement he had acted without knowledge or upon mis-information. 
 And that alter he had heard from Canada, and received the official 
 
ORAL ARGUMENT OP HON. EDWARD J, PHELPS. 13 
 
 comment upon it and protest against it by Canada (which I shall allude 
 to hereafter) he did not put himself for a moment with the United 
 States upon any other ground than this — that time was wanted, but 
 that the convention would ultimately be carried into effect. I shall 
 prove this by reading some few of the letters that bear directly upon 
 that point, so that it will be seen exactly how Great Britain, in a man- 
 ner most honourable to herself, and to the statesman who had charge of 
 her Foreign Affairs, met this proposal of the United States. 
 
 The letter of November 12th 1887 from the United States Minister 
 to Mr. Bayard at page 171 of the 1st Volume of the United States 
 Appendix, states the Minister's account, and is the first thing that 
 appears in the correspondence to show what took place. He says : 
 
 Referring to your instructions numbered 685, of August 19tli 1887, I have now to 
 say that owing to the absence from London of Lord Salisbury, Secretary of State 
 for Foreign Affairs, it has not been in my power to obtain his attention to the sub- 
 ject until yesterday. 
 
 I had then an interview with him, in which I proposed on the part of the Govern- 
 ment of the United States that by mutual agreement of the two Governments a code 
 of regulations should be adopted for the preservation of the seals in Behring Sea 
 from destruction at improper times and by improper means by the citizens of either 
 country ; such agreement to be entirely irrespective of any questions of conflicting 
 jurisdiction in those waters. 
 
 His Lordship promptly acquiesced in this proposal on the part of Great Britain, 
 and suggested that I should obtain from my Government and submit to him a sketch 
 of a system of regulations which would be adequate for the piirpose. 
 
 I have therefore to request that I may be furnished as early as possible with a 
 draft of such a code as in your judgment should be adopted. 
 
 I would also suggest that copies of it be furnished at the same time to the Minis- 
 ters of the United States in Germany, Sweden and Norway, Russia, France, and 
 Japan, in order that it may be under consideration by the Governments of those 
 countries. A mutual agreement between all the Governments interested may thus 
 be reached at an early day. 
 
 Mr. Bayard had to take time to answer the request of the British 
 Government as to what these Regulations should be. It was only 
 agreed at the first interview that a code should be adopted, and the 
 United States were invited to propose one. Here is a reply on Febru- 
 ary 7th from Mr. Bayard that covers three pages, and which will use- 
 fully repay perusal. I shall only be able to read some extracts from it. 
 The substance of the letter is to state these leading facts as they 
 now appear before you; the migration of the seals; the period of the 
 year; the great slaughter of the females and the death of the young; 
 the extermination to which it conducted, and various other considera- 
 tions, and embracing — this is the important point — a proposal for these 
 Eegulations, That is the substance of it. I will read this passage : 
 
 The only way of obviating the lamentable result above predicted appears to be by 
 the United States, Great Britain, and other interested powers taking concerted action 
 to prevent their citizens or subjects ftom killing fur-seals with firearms, or destruc- 
 tive weapons, north of 50° of north latitude, and between 160° of longitude west, 
 and 170° of longitude east from Greenwich, during the period intervening between 
 April 15th and November 1st. 
 
 To prevent the killing within a marine belt of 40 or 50 miles from the islands 
 daring that period would be. ineffectual as a preservative measure. 
 
 And so forth. 
 
 Then comes a letter from the United States Minister to Mr. Bayard, 
 on page 175, in which he says : 
 
 I have received your instruction No. 782, under date of February 7, relative to the 
 Alaskan seal fisheries. I immediately addressed a note to Lord Salisbury, inclosing 
 for his perusal one of the printed copies of the instruction, and requesting an 
 appointment, for an early interview on the subject. 
 
14 ORAL ARGUMENT OF HON. EDWARD J. PHBLPS. 
 
 I also sent a note to the Russian Ambassador, and an interview with him is arranged 
 for the 21st instant. 
 
 The whole matter will receive my immediate and thorough attention and I hope 
 for a favorable result. Meanwhile I would ast your consideration of the manner in 
 which you would propose to carry out the regulations of these fisheries that may be 
 agreed upon by the coimtries interested. Would not legislation be necessary; and, 
 if so, is there any hope of obtaining it on the part of Congress? 
 
 Another letter from the same to the same on the same page, of Feb- 
 ruary 25th, 1888, says : 
 
 Referring to your instructions, numbered 782 of February 7, 1888, in reference to 
 the Alaska seal fisheries, and to my reply thereto, numbered 690, of February 18, I 
 have the honor to inform you that I have since had interviews on the subject with 
 Lord Salisbury and with Mr. de Staal, the Russian Ambassador. 
 
 Lord Salisbury assents to your proposition to establish, by mutual arrangement 
 between the Governments interested, a close time for fur-seals, between April 15 and 
 November 1, and between 160° of longitude west, and 170° of longitude eastj in the 
 Behring Sea. 
 
 He will also join the United States Government in any preventive measures it may 
 be thought best to adopt, by orders issued to the naval vessels in that region of the 
 respective Governments. 
 
 I have this morning telegraphed you for additional printed copies of instruotionB 
 782 for the use of Her Majesty's Government. 
 
 The Russian Ambassador concurs, so far as his personal opinion is concerned, in 
 the propriety of the proposed measures for the protection of the seals, and has 
 promised to communicate at once with his Government in regard to it. I have fur- 
 nished him with copies of instructions 782 for the use of his Government. 
 
 Then there is the reply of Mr. Bayard on the 2nd of March contin- 
 uing the subject. It need not be read; but I will read Mr. White's let- 
 ter. The Minister having returned home temporarily, the subject was 
 left in the hands of Mr. White, who became Oharg6, to carry out the 
 details which had been substantially agreed on; and Mr. White writes 
 to Mr. Bayard on April 7 th, 1888. 
 
 Referring to your instructions. * * » i have the honor to acquaint you that I 
 received a private note from the Marquis of Salisbury this morning stating that at 
 the request of the Russian Ambassador he had appointed a meeting at the Foreign 
 Office next Wednesday, 11th instant "to discuss the question of a close time for the 
 seal fishery in Behring Sea," and expressing a hope that I would make it convenient 
 to be present, and I have replied that I shall be happy to attend. 
 
 Then there is Mr. White's letter to Mr. Bayard on April 20th, 1888, 
 on page 179 of the same book. He speaks first of having met the Mar- 
 quis of Salisbury and M. de Staal and then says : 
 
 M. de Staal expressed a desire, on behalf of his Government, to include in the area 
 to be protected by the convention the Sea of Okhotsk, or at least that portion of it in 
 which Robben Island is situated, there being, he said, in that region large numbers 
 of seals, whose destruction is threatened in the same way as those in Behring Sea. 
 
 He also urged that measures be taken by the insertion of a clause in the proposed 
 convention or otherwise, for prohibiting the importation, by merchant vessels, into 
 the seal protected area, for sale therein, of alcoholic drinks, firearms, gunpowder, 
 and dynamite. 
 
 Lord Salisbury expressed no opinion with regard to the latter proposal, but, with 
 a view to meeting the Russian Government's wishes respecting the waters surround- 
 ing Robben Island, he suggested that, besides the whole of Behring Sea, the sea of 
 Okhotsk and the Pacific Ocean north of north latitude 47° should be included in the 
 proposed arrangement. 
 
 There you get (if Mr. White is correct and we shall see whether he is 
 or not soon), the Southern line of this previously indicated area extended 
 to the west, and, by the apparent construction of the language, I should 
 think extended to the east — certainly to the west. And there is another 
 letter which I will refer to, about that. Then he says : 
 
 I referred to the communications already made by Mr. Phelps oa this subject to 
 Lord Salisbury, and said that I should b« obliged to refer to you the proposals which 
 had just been made, before expressing an opinion with regard to them. 
 
ORAL ARGUMENT OF HON. EDWARD J. PHELPS. 15 
 
 I have accordingly the honor to ask for instructiona in reference to the same. 
 
 Meanwhile the Marquis of Salishury promised to have prepared a draft convention 
 for submission to the Russian embassador and to myself. I shall lose no time in for- 
 warding you a copy of 'this document when received. 
 
 I have omitted a paragraph in Mr. White's letter, that I should have 
 read. At the bottom of page 179 he says : 
 
 His lordship intimated furthermore that the period proposed by the United States 
 for a close time, April 15th to November Ist, might interfere with the trade longer 
 than absolutely necessary for the protection of the seals, and he suggested October 
 1st, instead of a month later, as the termination of the period of seal protection. 
 
 Then Mr. Bayard replies to Mr. White. The letter is on page 180 of 
 the same book, under date of May 1st, 1888. 
 
 Your dispatch No. 725 of the 20th ultimo stating the result of your interview with 
 Lord Salisbury and the Russian ambassador relative to the protection of seals in 
 Behring Sea, and requesting further instructions as to their proposals, has been 
 received. 
 
 As you have already been instructed, the Department does not object to the inclu- 
 sion of the sea of Okhotsk, or so much of it as may be necessary, in the arrangement 
 for the protection of the seals. Nor is it thought absolutely necessary to insist on 
 the extension of the close season till the Ist of November. 
 
 Only such a period is desired as may be required for the end in view. But in order 
 that success may be assured in the efltbrts of the various Governments interested in 
 the protection of the seals, it seems advisable to take the 15th of October instead of 
 the 1st as the date of the close season, although, as I am now advised the Ist of 
 November would be safer. 
 
 The suggestion made by Lord Salisbury that it may be necessary to bring other 
 Governments than the United States, Great Britain, and Russia into the arrange- 
 ment has already been met by the action of the Department, as I have hitherto 
 informed you. At the same time the invitation was sent to the British Government 
 to negotiate a convention for seal protection in Behring Sea, a like invitation was 
 extended to various other powers, which have without exception returned a favor- 
 able response. 
 
 In order, therefore, that the plan may be carried out, the convention proposed 
 between the United States, Great Britain, and Russia should contain a clause pro- 
 viding for the subsequent adhesion of other powers. 
 
 Mr. White then writes to Mr. Bayard on the 20th of June, 1888. It 
 is on page 181 : 
 
 I have the honor to inform you that I availed myself of an early opportunity to 
 acquaint the Marquis of Salisbury and the Russian ambassador of the receipt of 
 your instructions numbered 804, of May 3rd. 
 
 (That is the last letter I read :) 
 
 And shortly afterwards (May 16) His Excellency and I called together at the For- 
 eign Office for the purpose of discussing with his lordship the terms of the proposed 
 convention for the protection of seals in Behring Sea. Unfortun ately Lord Salisbury 
 had just received a communication from the Canadian Government stating a memo- 
 randum on the subject would shortly be forwarded to London, and expressing a hope 
 that pending the arrival of that document no further steps would be taken in the 
 matter by Her Majesty's Government. 
 
 !N"ow I turn from this American evidence to some letters that are to 
 be found in the same third volume of the British Appendix from which 
 I have been reading before. I have shown the Tribunal (because I 
 attach so much importance to this that I think it ought to be clearly 
 perceived whether this was a misunderstanding or not), what view was 
 entertained in regard to it, and what was understood about it by the 
 American representatives in London, and through them, by the United 
 States Government at home. I refer to a letter from the Marquis of 
 Salisbury to Sir E. Morier and also to Sir Lionel West the British 
 Minister at Washington. Duplicates of this letter seem to have been 
 sent out, one to Sir Eobert Morier and the other to Sir Lionel West. It 
 
16 OKAL AEGUMKNT OF HON. EDWAED J. PHELPS. 
 
 is to be found at page 196 of the 3rd volume of the British Appendix to 
 the Case. 
 
 SiK : The Eussian Ambassador and the United States Char^6 d' Affaires called upon 
 me this afternoon to discuss the question of the seal fisheries in Behiing's Sea, which 
 had been brought into prominence by the recent action of the United States. 
 
 The United States Government had expressed a desire that some agreement should 
 be arrived at between the three Governments for the purpose of prohibiting the 
 slaughter of the seals during the time of breeding; and, at my request, M. de Staal 
 had obtained instructions from his Government on that question. 
 
 M. de Staal, you will recollect, Sir, was the Eussian Ambassador: 
 
 At this preliminary discussion it was decided provisionally, in order to furnish a 
 basis for negotiation, and without definitively pledging our Governments, that the 
 space to be covered by the proposed Convention should be the sea between America 
 and Eussia north of the 47th degree of latitude; — 
 
 that gives the entire southern line — 
 
 that the close time should extend from the 15th of April to the Ist November; 
 
 that was written before Mr. Bayard's suggested modification that he 
 would take the 15th October — 
 
 that during that time the slaughter of all seals should be forbidden ; and vessels 
 engaged in it should be liable to seizure by the cruisers of any of the three Powers, 
 and should be taken to the port of their own nationality for condemnation ; that the 
 traffic in arms, alchol, and powder should be prohibited in all the islands of those 
 seas; and that as soon as the three Powers had concluded the Convention, they 
 should join in submitting it for the assent of the other Maritime Powers of the 
 northern seas. 
 
 The United States Charge d' Affaires was exceedingly earnest in pressing on us 
 the importance of dispatch on account of the inconceivable slaughter that had been 
 and was still going on in these seas. He stated that in addition to the vast quantity 
 brought to market, it was a common practice for those engaged in the trade to shoot 
 all seals they might meet in the opeu sea, and that of these a great number sank, so 
 that their skins could not be recovered. 
 
 On the 28th of July there appears in the British Appendix the same 
 Volume, page 209, a letter from the United States Minister who had 
 then returned to London to the Marquis of Salisbury; I ask you to 
 notice this date, July 28th, 1888. 
 
 This letter is as follows : 
 
 Mt Lord: I beg to recall your Lordship's attention to the subject of the proposed 
 Convention between the Government of the United States, Great Britain and Eussia 
 for the protection of the seal fisheries in Behrlng Sea. A considerable time has now 
 elapsed since the last conversation I had the honour to have with your Lordship in 
 regard to it, when it was mutually believed that an early agreement might be 
 arrived at. 
 
 I am sure your Lordship will concur with me in conceiving it to be for the interest 
 of all parties that a conclusion should be reached as soon as possible. And my 
 Government instructs me respectfully to urge npou Her Majesty's Government the 
 propriety, under existing circumstances, of immediate action. 
 
 I understand the Eussian Government to be prepared to concur in the proposed 
 Convention as soon as the other Governments concerned are ready to assent to it. 
 
 Here, sir, you have from Lord Salisbury in his letter to the British 
 representatives abroad, a statement which precisely concurs in every 
 particular with that of the American Minister, and the American charg6 
 d'affaires, in representing this agreement to their Government. 
 
 Then there took place a correspondence, or perhaps I should say 
 there had taken place in the meantime a correspondence from April to 
 July between the G-overuments, containing a suggestion made in the 
 tbrm of a letter of the United States Minister, that has been read, as to 
 the means by which this convention should be carried into effect, and 
 whether legislation would not be necessary in both countries to 
 empower the Governments and the courts of the Government to enforce 
 
OEAL ARGUMENT. OF HON. EDWAED J. PHELPS. 17 
 
 the provisions of the stipulations; and it appears from that correspond- 
 ence that the suggestion made by the American Minister to Lord Salis- 
 bury, as it was made to his own Government, was acceded to; that it 
 was proposed by his Lordship to have introduced into Parliament a bill 
 for the enforcement of this proposed Convention ; that a copy of it was 
 . promised to the American Minister, at his request, for the use of his 
 Government; that subsequently Her Majesty's Government thought it 
 would be better to enforce the convention in Great Britain through 
 orders in Council, and that was understood by Mr. White to mean that 
 no act of Parliament was necessary, but that the Executive would 
 enforce it through orders in Council. That mistake of his was subse- 
 quently corrected by an explanation from the British Foreign Office 
 that they only meant that instead of passing a definite bill prescribing 
 the manner in which a Convention should be carried out which was not 
 yet formally executed, an act should be passed empowering the Privy 
 Council to issue such orders and under such circumstances as might be 
 necessary. 
 
 I allude to this correspondence only to say that it is apparent from it 
 that the convention was agreed to be executed on both sides, and that 
 the details of it were all understood, and that it was likewise the subject 
 of consideration and of conclusion as to the means by which it should 
 be carried into effect; and whether an act was introduced into Congress 
 for that purpose, I really do not know. ISow, sir, why are we here? 
 
 Sir EiCHARD Webstee. — There is a letter of the 3rd of September 
 on page 220, from Lord Salisbury to Sir Lionel West, which I think 
 should be read in connection with what you are saying. 
 
 Mr. Phelps. — I will read it with much pleasure : 
 
 With reference to my despatch of the 16th April last, relative to the proposals 
 received from the Government of the United States for concerted action on the part 
 of the Powers interested in the matter, with a view to the establishment of a close 
 season for the preservation of the fur-seals resorting to Behrings Sea, I have to 
 inform yon that I have recently had a long conversation with Mr. Phelps on the 
 subject. 
 
 He stated that his Government were very anxious that an agreement should be 
 arrived at as soon as possible. 
 
 I pointed out the difficulties felt by the Canadian Government, and said that 
 while the scheme was favorable to the industries of the mother country, consider- 
 able apprehension was felt in Canada with respect to its possible effect on colonial 
 interests. 
 
 I added that I was still sanguine of coming to an arrangement, but that time was 
 indispensable. 
 
 That letter is on my notes to have been read a little later in another 
 connection. 
 
 Sir KiOHAKD Webster. — I beg your pardon, Mr. Phelps. 
 
 Mr. Phelps. — It does not disturb me at all. I am glad to read it at 
 this time to oblige my learned friend; because I was about to put the 
 inquiry — I had put the inquiry — How come we here? After the agree- 
 ment that you learn from both these Governmeuts had been made, its 
 details adjusted, the methods of its being carried into effect considered 
 and arranged, and after repeated applications by the United States 
 Government, based upon the urgency of the case, had been met by 
 saying that it was necessary to consult Canada. We have been spoken 
 of as complaining of that. Certainly not; it was the duty of the 
 British Government to consult the province on that subject, and we at 
 once acquiesced, as will be seen from the correspondence, in the pro- 
 priety of waiting until an answer could be had. Then we find as late 
 as September, after the communication from Canada that I am about 
 to read from, Lord Salisbury writes that he had had a conversation 
 
18 ORAL ARGUMENT OF HON. EDWARD J. PHELPS. 
 
 with the American Minister, who was pressing for the fulfillment of 
 the Convention, and had told him that time was necessary, but that he 
 was still sanguine that it would be executed. 
 
 Now, what was the difaculty ? The difficulty was the protest of Can- 
 ada. It was communicated from the Foreign Of&ce to the Colonial 
 Government. Time was demanded, and an ofiioial reply was sent back 
 to Her Majesty's Grovernment, which is the reply Lord Salisbury 
 alludes to in the letter I have just read, as the cause of the delay. 
 On page 212 of the same book, the third volume of the British Appeu- 
 dix, under date of August 18th, is a letter from John Bramston, whom 
 I believe my friend said was — 
 
 Sir EiCHABD Webster. — He was a Secretary of the Colonial Office. 
 
 Mr. Phelps. — A Secretary of the Colonial Office. 
 
 Siu : With reference to the letter from this Department of the lOfch instant, I am 
 directed by Lord Knutsford to transmit to you, to be laid before the Marquis of 
 Salisbury, a copy of a dispatch from the Governor-General of Canada forwarding a 
 Minute of his Privy Council on the subject of the proposal of the United States 
 Government for the establishment of a close time for seals in Behring's Sea. 
 
 In view of the explanations of the Dominion Government, which state very 
 clearly the strong objections to the proposed close season, it appears to Lord Knuts- 
 ford that it will be necessary for the United States Government to make some mod- 
 ified proposal if the negotiations are to have any useful result. 
 
 The enclosure in that is "The Report of a Committee of the Hon- 
 orable Privy Council for Canada, approved by His Excellency, the 
 Governor-General in Council, on the Idth July, 1888." I will read the 
 whole of it, as it is brief: 
 
 The Committee of the Privy Council have had under consideration a despatch 
 dated the 8th March, 1888, from the Right Honorable the Secretary of State for the 
 Colonies, transmitting a copy of a letter from the Foreign Office, with a note from 
 the United States Minister in London, submitting a proposal from Mr. Secretary 
 Bayard for the establishment of a close season for the seal fishing in and near 
 Behring's Sea, to extend from the 15th April to the Ist November of each year, and 
 to be operative in the waters lying north of latitude 50 degrees north and between 
 longitude 160 degrees west and 170 degrees east from Greenwich, in which despatch 
 Lord Knutsford asks to be favored with any observations which the Canadian 
 Government may have to offer on the subject. 
 
 The Minister of Marine and Fislieries to whom the said despatch and inolosures 
 were referred, submits a Report thereon, dated the 7th July, 1888, protesting 
 against Mr. Bayard's proposal as au unjust and unnecessary interference with, or 
 rather prohibition of, rights so long enjoyed to a lawful and remunerative occupa- 
 tion upon the high seas. 
 
 The Committee concur in the said Report, and advise that a copy thereof, and 
 of this Minute, if approved, be transmitted by your Excellency to the Right Honor- 
 able Secretary of State for the Colonies. 
 
 Then follo\v's the Minute from the Department of the Marine and 
 Fisheries, as the result of the Eeport of the Committee of the Privy 
 Council, signed by George E. Foster, Acting Minister of Marine and 
 Fisheries, in which the grounds of the objection were stated. 
 
 I cannot take your time, Sir, to read the whole of this, nor is it neces- 
 sary. It is in print before you. I only read enough to point out that 
 their objection is that the increase of the seals is so great, the number 
 so large, that the pelagic sealing complained of by the United States 
 does not even stop the increase. Therefore, that the convention cannot 
 be necessary for the preservation of the seal, and that the real object 
 of the United States is not the preservation of the seal, which is in no 
 sense endangered, but is an attempt to obtain a monopoly of the seal- 
 skins, and to deprive Canada of that share in the product obtained upon 
 the high seas which can be taken, not merely without risk to the 
 existence of the herd, but without stopping its increase. 
 
ORAL ARGUMENT OF HON. EDWARD J. PHELPS. 19 
 
 He refers to a report of the United States Ageut from wMch it 
 appears, as he says : 
 
 1. That none but young male seals are allowed to be killed on the Pribilof Islands, 
 and of these only 100,000 annually. 
 
 2. That a careful measurement of the breeding rookeries on St. Paul and St. George 
 Islands showed 6,357,750 seals exclusive of young males. 
 
 3. That 90 per cent of the pups bred by these go into the water, leaving a mortal- 
 ity of but 10 per cent at the place of breeding. 
 
 4. That fully one-half of the above 90 per cent of pups returned the following 
 year as yearlings to the rookeries, leaving thus a total mortality of 45 per cent from 
 various causes at sea. 
 
 It needs but a slight consideration of these figures to demonstrate that an addition 
 of millions each year must be made to the surviving seal life in the North Pacific 
 Ocean. 
 
 The Agent in his Report says: "This vast number of animals, so valuable to the 
 Government, are still on the increase. The condition of all the rookeries could not 
 be better". 
 
 That report is stated to have been, dated July 18th, 1887. 
 
 Sir EiCHAED Webster. — It is a United States document. 
 
 Mr. Phelps. — Yes; it is quoted from a United States document. 
 
 Against the enormous yearly increase of seal life may be placed the average 
 slaughter as given in the Memorandum attached to Mr. Bayard's letter, viz., 192,457 
 for the whole world, or for the seals near to Behriug's Sea as follows: 
 
 Pribilof Islands 94,967 
 
 Commander Islands et Robbin Reef 41, 893 
 
 Japan Islands 4, 000 
 
 North-west coast of America 25, 000 
 
 Or a total of 165,860 
 
 With an annual clear increase of millions, and an annual slaughter of less than 
 200,000 in the North Pacific Ocean, it surely cannot be contended that there is any 
 necessity for such stringent and exclusive measures as the one proposed in order to 
 preserve the seal fishery from threatened destruction. Not only would it appear 
 that the present rate of catch could be permitted, and a continual increase of the 
 total number of seals be assured, but it would seem that this annual take might be 
 many times multiplied without serious fears of exhaustion so long as the present 
 condition of breeding on the Pribilof Islands are preserved. 
 
 And he goes on to discuss the subject. The purport of it all is, as I 
 have said, that while this proposal of the United States is totally 
 unnecessary, altogether uncalled for, the real motive of it is to estab- 
 lish an absolute and complete monopoly on the islands. 
 
 Senator Morgan. — Mr. Phelps, before we rise for the recess, I would 
 like to know whether in the understanding that there is between the 
 counsel in this Case, in regard to the geographical definition of Behring 
 Sea, the line is to be drawn inside the Aleutian range or outside? 
 
 Mr. Phelps. — Do you mean. Senator, on the question of whether it 
 is included in the Pacific Ocean? 
 
 Senator Morgan. — No ; I mean in reference to the words in the treaty 
 "In or habitually resorting to Behring Sea." 
 
 Sir EiCHARD Webster. — I might perhaps save trouble on this matter 
 by saying and I think Mr. Phelps will agree that the matter is a little 
 involved, but so far as Her Majesty's Government is concerned we have 
 not the slightest objection to the passes into Behring Sea being con- 
 sidered as part of Behring Sea. I do not think it would be accurate to 
 consider the passes into the sea as being a part of it, but for the pur- 
 poses of the Regulations I was discussing yesterday, we have not the 
 slightest objection to those passes being considered a part of the sea. 
 
 Mr. Phelps. — Tes, Sir. That answers Senator Morgan's question. 
 If you wiU permit me a moment, Mr. President, the Minute that I have 
 
20 ORAL ARGUMENT OF HON. EDWARD J. PHELPS. 
 
 been reading from is dated the 7th day of July, 1888. It was approved 
 by the Governor-General in Privy Council on the 34th of July, 1888 
 and it was transmitted by Lord Stanley of Preston to Lord Kuutsford 
 on the 3rd of August 1888, and would be in the possession of the 
 British Foreign Oftice in about the usual time after that. 
 
 The Tribunal here adjourned for a short time. 
 
 Mr. Phelps. — My learned friend, Sir Eichard Webster desires that 
 I should refer to another letter upon the same subject, which 1 had not 
 mentioned this morning. I do it with great pleasure, because it is by 
 no means my intention to deduce any conclusions from any part of this 
 correspondence which are not sustained by the whole of it. It is a 
 letter from Lord Salisbury to Sir Julian Pauncefote of the 22nd October 
 1890, and it is in the 3rd British Appendix, page 18 of the second part. 
 The Tribunal will remember before I read from this letter, that the 
 correspondence I have been reading took place at, and immediately 
 following, the time when the Agreement between the two Governments 
 for a convention that I was speaking of took place. 
 
 Senator Morgan.— In 1888? 
 
 Mr. Phelps. — Yes, the letters on both sides. Fow on the 22nd Octo- 
 ber 1890, Lord Salisbury writes to Sir Julian Pauncefote a letter which 
 is produced here, in which, being pressed upon this subject, he gives 
 an explanation : 
 
 I understand his complaint — 
 that is to say, in Mr. Blaine's correspondence — 
 
 to be tliat, in a conversation with Mr. Phelps, reported by that gentleman in a 
 despatch dated the 25th February, 1888, 1 had assented to the American proposition 
 to establish, by mutual arrangement fcetween the Governments interested, a close time 
 for fur-seals between the 15th April and the Isfc November in each year, and between 
 160° west longitude and 170 east longitude in the Behring's Sea; that I had under- 
 taken to cause an Act to be introduced in Parliament to give effect to this arrange- 
 ment as soon as it could be prepared, and that I subsequently receded from these 
 engagements. 
 
 The conversation in question took place on the 22nd February 1888, and my own 
 record of it, written on the same day in a despatch to your predecessor, is as follows: 
 
 Mr. Phelps then made a proposal on the basis embodied in Mr. Bayard's despatch 
 of the 7th February, a copy of which accompanies my previous despatch of this day's 
 date. Mr. Bayard there expresses the opinion that the only way of preventing the 
 destruction of the seals would be by concentrated action on the part of the United 
 States, Great Britain, and other interested Powers, to prevent their citizens or sub- 
 jects from killing fur-seals with firearms or other destructive weapons north of 50° ' 
 north latitude, and between 160 west longitude and 170° east longitude from Green- 
 wich, during the period intervening between the 15th April and the 1st November. 
 I expressed to Mr. Phelps the entire readiness of Her Majesty's Government to join 
 in an Agreement with Russia and the United States to establish a close time for seal 
 fishing north of some latitude to be fixed. 
 
 And he subsequently discusses that at a length I need not read, 
 speaking very kindly of the United States Minister and giving his views 
 which are before you. 
 
 I am very glad that this letter, as it is in the case, where it would 
 naturally encounter and probably has before encountered the eye of the 
 Tribunal, should have been brought to my attention by my learned 
 friend on the other side. I appeal from that letter which is not after 
 all very different from what appeared from the former correspondence — 
 I appeal from Lord Salisbury's recollection in 1890, to what he said in 
 the repeated letters I read this morning, written immediately after that 
 agreement was made. If the Tribunal take the trouble, which I will 
 not stop to do, to compare the letters which I have read this morning 
 from the British Government as well as from the representative of the 
 American Government with the subsequent recollection of Lord Salis- 
 
ORAL ARGUMENT OF HON. EDWARD J. PHELPS. 21 
 
 bury in 1890, I think they will find in which he was correct, and in 
 which he was undoubtedly mistaken. In that letter (you will remember 
 those letters) he suggested the 47th parallel. He states the agreement 
 to have been that both the dates were fixed, and the limits were fixed, 
 when now he seems to be of a recollection that all he agreed to was 
 something or other to be fixed hereafter. 
 
 Now still on the point whether there could have been any misunder- 
 standing or rather want of information on the part of Lord Salisbury, 
 I want to call your attention to a letter on the 24th page of this book, 
 the third British Appendix, from Messrs. Lampson the great fur house 
 of London through whose hands as it has appeared and will appear in 
 another connection all these seal skins passed. They are a very old 
 established house, and the letter I refer to is a letter from these gen- 
 tlemen to the Earl of Iddesleigh when he was Secretary for Foreign 
 Affairs, dated the 12th November 1886, almost two years before the 
 making of the Agreement between Lord Salisbury and the American 
 Miuister : 
 
 Mt Lord : We understand a question of international law has arisen between the 
 Government of the United States on the one hand, and the Governments of Great 
 Britain and of the Dominion of Canada on the other band, respecting the seizure by 
 the United States Revenue cutter " Corwin" of certain Dominion fishing-vessels 
 engaged in capturing fur-seals in the waters of Alaska. 
 
 As the future existence of the fur-seal skin traffic, in which we have for years past 
 been engaged, largely depends upon the settlement of this question, we beg to sub- 
 mit for your consideration, the following facts : 
 
 Situated in the waters of Alaska, latitude 57° north, lougitude 170° west, is the 
 Pribilof group of islands, belonging to the United States. 
 
 These islands, which are occupied every year from May to October by a large 
 number of fur-seals /or the purpose of breeding, have been leased to an American 
 Company under stringent conditions, which restrict them from killing more than 
 100,000 young males ^er annum, and strictly prohibit them from killing any female 
 seals whatever. 
 
 The fur-seal being a polygamous animal, the annual increase is not affected by the 
 killing of this limited number of young males ; and it has been found that the wise 
 nursing by these means of this very important fishery has not only resulted in the pre- 
 servation of the seals during the past sixteen years, but has also given an ample 
 supply of skins for purposes of trade. 
 
 During the last few seasons, however, fishing vessels have been fitted out from 
 ports in British Columbia and the United States, and have been engaged in the 
 wholesale slaughter of female seals, which, during the breeding season, swarm in 
 the waters round the island for a considerable distance out to sea. 
 
 Last summer several of the Dominion vessels were seized by the United States 
 cutter, and it is stated that a case is being prepared by the Dominion Government, 
 for presentation to the United States Government, disputing the legality of the said 
 captures. 
 
 Should Great Britain deny the right of the United States Government to protect 
 the fishery in an effectual manner, there can be no doubt that the Alaska fur-seals, 
 which furnish by far the most important part of the world's supply of seal-skins, 
 will be extiirminated in a very few years, just as in the South Atlantic the Shetland 
 and Georgia fur-seals which used to furnish even finer pelts than the Alaskas, have 
 already been. 
 
 It is evident, therefore, that the benefit derived by the Dominion fishing-vessels 
 from the slaughter of these female seals will be short lived. 
 
 We would next point out that the 100,000 skins, the annual produce of the islands 
 (worth I. 350,000 at present prices) have been shipped to us for sale and manufacture 
 in London for sixteen years past, thus affording in chis city employment for a large 
 amount of capital and means of subsistence to some 10,000 people, many of whom 
 are skilled workmen earning wages up to I. 3 per week. 
 
 We need, therefore, hardly suggest that it would be a short sighted and disastrous 
 policy to allow such an industry to be destroyed, especially at a time when so much 
 distress is already prevalent among the working classes. 
 
 We therefore earnestly trust the British Government will, after verifying the 
 above facts, see its way to give its friendly support to the United States in the 
 exercise of their right to protect and preserve an article of commerce equally effect- 
 ing the interests of both countries. We have telegraphed to New-York for the 
 
22 ORAL ARGUMENT OP HON. EDWARD J. PHELPS. 
 
 "Monograph of the Seal Islands" by Professor Elliott, which fnlly describes tTie seal 
 life upon the islands. When we have received, the book we shall have the pleasure 
 of handing it to your Lordship. 
 
 Senator MoRaAN. — What is the date of that? 
 
 Mr. Phelps. — November 12th 1886, before any communication had 
 passed between the United States and the British Government on that 
 subject excepting a letter of inquiry from the Foreign Office to the 
 United States State Department, after it had heard of the arrest of 
 these vessels, desiring to be informed of the particulars. I cite it for 
 the purpose of showing that when this agreement during the long 
 period between September 1887 and September 1888 was in process of 
 being made and of having its details settled and the legislation neces- 
 sary provided for it, the British Foreign Office not only had this paper 
 of Mr. Bayard's, which I referred to this morning stating all these facts, 
 and this communication from Canada in July 1888 which I referred to, 
 but they had for two years the remonstrance of this important house of 
 their own subjects, in view of their own interests and what they con- 
 ceived to be British interests quite irrespective of the United States, 
 so that the subject was in no respect a new one. And so Lord Salisbury 
 instead of dealing with a subject he was not conscious he understood, 
 had complete information from various sources in respect to all the 
 facts, connected with it. 
 
 But if there was a misunderstanding at the time of it, if when he 
 gets this information from Canada, he felt he had been misled, that he 
 had acted too hastily, that he had been misinformed by Mr. Bayard, and 
 that the facts stated in Mr. Bayard's communication did not stand the 
 test of examination, or were exaggerated, or were inaccurate, he would 
 have said so. He states himself when writing to the Colonial Office 
 and to his Representative at Washington, at the same time that the 
 American Minister was stating it to his own Government, that he was 
 putting the matter off — expressing his regret — sanguine for more than 
 thirty days after he had received these communications from Canada that 
 the agreement would be carried out, and saying that only time was 
 necessary to effect it; — and during all that time he never suggested 
 either to the American Government or to its Eepresentative, to the 
 Colonial Government of Canada, to the Colonial Office, or to any of 
 the ministers of the British Government anywhere, " we must recall 
 this agreement, we have been hasty, we have acted without sufficient 
 information". And whatever Lord Salisbury may remember as late as 
 1890 about the indeiiniteness of the Agreement, which he does not 
 deny that he made, is completely contradicted by his own letters in 
 which he stated with the utmost particularity the very details which 
 in 1890 he thinks were left for future adjustment. 
 
 Lord Salisbury was mistaken in that recollection ; he had not before 
 him, when he made that statement, these letters signed by himself. 
 He was pressed, — a high-toned and honourable man, as incapable of 
 receding from any Agreement that he had made as any man in the 
 world, jealous of the honour of his Country, he was pressed with the 
 position that the British Government found itself in. You see it trans- 
 parent through all this correspondence. If, as I have said, he had been 
 drawn hastily into this Agreement, or had entered into it under some 
 misunderstanding, or if Canada had presented a remonstrance which 
 justified him in receding, he would have done so. Instead of that, all 
 through the summer he was saying, "Time only is necessary; we shall 
 yet bring it about ". 
 
OEAL ARGUMENT OF HON. EDWARD J. PHELPS. 23 
 
 Then, wlien pressed at Washiugtou by Mr. Blaine with this delay, no 
 excuse for which had been offered by Her Majesty's Government, 
 because they had heard from Canada, they had got this formal report 
 from the Privy Council of Canada signed by the Minister, and that 
 source was exhausted, still pressed, as he writes himself, by the Ameri- 
 can Minister calling upon him and urging dispatch, he writes a letter to 
 which I must allude, and which will be found in the 1st Volume of the 
 United States Appendix, page 238. It is quoted from by Sir Julian 
 Pauncefote to Mr. Blaine, in a note of June the 30th, 1890 : 
 
 I have received a dispatch from the Marquis of Salisbury with reference to the 
 passage in your note to me of the 4th instant, in which you remark that in 1888 his 
 Lordship abruptly closed the negotiations because "the Canadian Government 
 objected ", and that he " assigned no other reason whatever". 
 
 In view of the observations contained in Lord Salisbury's dispatch of the 20th of 
 June, of which a copy is inclosed in my last preceding note of this date, his Lord- 
 ship deems it unnecessary to discuss at any greater length the circumstances which 
 led to an interruption of the negotiations of 1888. 
 
 Wvth regard, however, to the passage in your note of the 4th instant above referred 
 to, his Lordship wishes me to call your attention to the following statement made 
 to him by Mr. Phelps, the United States Minister in London, on the 3rd of April, 
 1888, and which was recorded in a despatch of the same date to Her Majesty's 
 Minister at Washington : 
 
 Under the peculiar political circumstances of America at this moment, said Mr. 
 Phelps, with a general election impending, it would be of little use, and indeed 
 hardly practicable, to conduct any negotiation to its issue before the election had 
 taken place. 
 
 Now, let me say for myself, without making myself a witness, that I 
 am quite willing it should stand as Lord Salisbury remembers it, for 
 the purposes of this case; I did make a similar remark to his Lordship. 
 It had reference, however, to a very different subject, a proposed Treaty 
 between the United States and the British Government on the subject 
 of the Fisheries on the East Atlantic. I said it was of no use to make 
 a Treaty with the expectation that it would pass the United States 
 Senate where a vote of two-thirds is required to confirm it, with a 
 political majority in the Senate adverse to the Government. And sub- 
 sequent events showed the correctness of that opinion, because an 
 excellent Treaty was made which failed of ratification by a strict party- 
 vote. But let it stand, because I do not propose to testify. 
 
 In the third British Appendix, page 189, is Lord Salisbury's letter to 
 Sir Lionel West stating this observation of mine. This is April 3rd, 
 1888, the time it was made, the time he refers to in his communication 
 with Sir Julian Pauncefote that I have just referred to, and he says, 
 
 The United States Minister called upon me to-day, previous to his return to 
 America. He was anxious to speak to me especially with reference to the condition 
 of the seal fishery in Behring Sea. He expressed the hope instructions would soon 
 arrive which would enable the Russian Ambassador to negotiate on the subject of 
 establishing a close time during which the capture of seals in certain localities 
 should not be permitted; and he added that, whenever that Convention could be 
 arranged, it would put an end to all the difficulties which had arisen with respect to 
 the seal-fishery in that sea. 
 
 Mr. Phelps was very anxious for dispatch, because the destruction of the species 
 was enormous, and was increasing in volume every year. But under the peculiar 
 political circumstances of America at this moment, with a general election impend- 
 ing, it would, he said, be of little use, and indeed, hardly practicable to conduct 
 any negotiation to its issue before the election had taken place. He held it, how- 
 ever, to be of great importance that no steps should be neglected that could be taken 
 for the purpose of rendering the negotiation easier to conclude, or for supplying the 
 place of it until the conclusion was obtained. He informed me, therefore, unofficially, 
 that he had received from Mr. Bayard a private letter, from which he read to me a 
 passage to the following effect : — " I shall advise that secret instructions be given to 
 American crnizers not to molest British ships in Behring's Sea, at a distance from the 
 
24 ORAL ARGUMENT OP HON. EDWARD J. PHELPS. 
 
 shore, aud this on the ground that the negotiations for the establishment of a close 
 time are going on." But, Mr. Phelps added, there is every reason that this step should 
 not become public, as it might give encouragement to the destruction of seals that 
 is taking place. 
 
 And then sometliing more in regard to communicating that to Lord 
 Lausdowne. 
 
 He also said he presumed that any Convention for exercising police in Behring's 
 Sea must, in the case of America and Great Britain, be supported by legislation^ 
 and he would be very glad if Her Majesty's Government would try to obtain the 
 requisite powers during the present session. 
 
 I replied that the matter should have our immediate attention. 
 
 Ton perceive, therefore, that -when pressed for an excuse for not car- 
 rying this Convention into effect, Lord Salisbury falls back upon a 
 remark that I have no doubt he supposed was applied to this subject, 
 as an excuse for delay, when the very letter in which he communicates 
 that remark to his own Minister shows that if it was made or as it was 
 ma,de, it was used by the Minister as a reason for greater despatch. So 
 that the reason for delay which he set Mr. Blaine to defend himself 
 against, as coming rather from the American side than the British, was 
 a reason that was given on the American side for greater despatch. It 
 shows that a mind charged with many matters is liable sometimes to 
 forget exactly what took place in particular conversations. It is 
 unquestionable that Lord Salisbury, as I have said, felt the embarrass- 
 ment of the position in which he was placed. 
 
 Tou will see that this agreement was made, continued, and repeated 
 and attempted to be carried out, as far as Great Britain could get, with- 
 out the concurrence of Canada; — that nothing but the objection of 
 Canada prevented its being carried into effect; and that the objection of 
 Canada was founded ujion a statement of fact which now is not pretended 
 to be true; it was founded alone upon the supposition that the increase 
 of seals was so great that all the results of pelagic sealing would not even 
 arrest it, and that, therefore, the attempt of the United States to inter- 
 fere was simply saying, while the abundance of these animals is greater 
 than we can take, and greater than we want, we will still prohibit you 
 from taking a small fraction out of the sea of the seals we should not 
 and could not use. 
 
 Mr. Blaine is inaccurate in saying that the British Government 
 abruptly terminated these negotiations. It never did terminate them; 
 they died of inanition, and on the 12th of November is the letter of the 
 United States Minister that has been so often referred to that I shall 
 not read from it again, which is the last time, I believe, till the subject 
 was referred to in 1890 by Mr. Blaine, in which this Convention figures, 
 and which expresses the belief of the Minister, though Lord Salisbury 
 had not said so, that Great Britain would not carry that arrangement 
 out without the consent of Canada, that the consent of Canada could 
 not be had, and that the United States Government might as well 
 understand that the whole agreement was at an end. That is the pur- 
 port of it. 
 
 Now, when you come (and I shall soon be through with these pre- 
 liminaries, I hope) to the renewal of the negotiations with Mr. Blaine, 
 the first communication in regard to which I read this morning, — 
 between Sir Julian Pauncefote, the then Minister, and Lord Salis- 
 bury, — what then was the attitude of Great Britain? It was, from 
 first to last, all the way through, exactly this: — " We deny the riglit of 
 the United States Government to protect itself against this destruction 
 of the seals, because it would be an infringement of our rights upon 
 the high seas. We deny that you have acquired that right from Eussia; 
 
ORAL ARGUMENT OP HON. EDWARD J. PHELPS. 25 
 
 we deny that you have acquired it in any other way ; but, when you come 
 to the busiuess of preserving the seals, we are ready to join you in any 
 and every Eegulation necessary for the purpose, without regard to any 
 interest which it may affect". That was their position, — a position 
 perfectly honourable to Great Britain. Whether right in its law ou the 
 question of right or not, is another question. It was perfectly honoura- 
 ble to Great Britain to say " We are with you in the preservation of this 
 animal ; we do not desire to countenance or to iniiict upon you any serious 
 injury; we simply assert what we conceive to be the right of the sea; 
 but we will join you in everything that is necessary". So that the issue 
 with Great Britain came to be, not whether pelagic sealing was right, 
 not whether it could be justified, not whether it was sure to result in 
 the extermination of the seals, — not that at all. It was, " Who shall 
 protect the seal herd by such measures as may be necessary? You 
 propose to do it for yourselves; to that we object, but we will join you 
 in doing it." 
 
 In view of the attitude which this case has assumed, I must trouble 
 you, not at length, with a few extracts from the correspondence to 
 establish that position, because I think it a very important one in the 
 threshold and outset of this case. I say that Great Britain never under- 
 took to defend this business of pelagic sealing; she never undertook to 
 deny that it resulted in extermination; she never undertook to say that 
 the Canadians must be protected in it. In one letter only in all this 
 voluminous correspondence, and if I have overlooked anything I shall 
 be glad to be corrected, in one letter only, in the most guarded manner, 
 something is intimated by Lord Salisbury on this point. 
 
 It will be found in the first United States Appendix, page 208, in a 
 long letter in reply to Mr. Blaine. 
 
 Witji regard to the first of these arguments, namely, that the seizure of the Cana- 
 dian vessels in the Behring's Sea was justified by the fact that they were engaged in 
 a pursuit that is in itself contra ionos mores — a pursuit which of necessity involves 
 a serious and permanent injury to the rights of the Government and people of the 
 United States, it is obvious that two questions are involved; first, whether the pur- 
 suit and killing of fur-seals in certain parts of the open sea is, from the point of 
 view of international morality, an offence contra ionos mores ; and, secondly, whether, 
 if such be the case, this fact justifies the seizure on the high seas and subsequent 
 confiscation, in time of peace, of the private vessels of a friendly nation. 
 
 Then he says, 
 
 It is an axiom of international maritime law that such action is only admissible 
 in the case of piracy or in pursuance of special international agreement. This prin- 
 ciple has been universally admitted by jurists, and was very distinctly laid down by 
 President Tyler in his special message to Congress, dated the 27th February, 1843, 
 when, after acknowledging the right to detain and search a vessel on suspicion of 
 piracy, be goes on to say : With this single exception, no nation has, in time of peace, 
 any authority to detain the ships of another upon the high seas, on any pretext what- 
 ever, outside the territorial jurisdiction. 
 
 Now, the pursuit of seals in the open sea, under whatever circumstances, has never 
 hitherto been considered as piracy by any civilized state. Nor, even if the United 
 States had gone so far as to make the killing of fur seals piracy by their municipal 
 law, would this have justified them in punishing offences against such law, com- 
 mitted by any persons other than their own citizens outside the territorial jurisdic- 
 tion of the United States. 
 
 In the case of the slave trade, a practice which the civilized world has agreed to 
 look upon with abhorrence, the right of arresting the vessels of another country is 
 exercised only by special international agreement, and no one government has been 
 allowed that general control of morals in this respect which Mr. Blaine claims on 
 behalf of the United States in regard to seal-hunting. 
 
 But Her Majesty's Government must question whether this pursuit can of itself 
 be regarded as contra bonos mores, unless and until, for special reasons, it has been 
 agreed by international arrangement to forbid it. Fur-seals are indisputably ani- 
 mals ferw natural, and these have universally been regarded by jurists as res nullius 
 
26 ORAL ARGUMENT OP HON. EDWARD J. PHELPS. 
 
 until they are caiiglit; no person, therefore, can have property in them until he has 
 actually reduced them into possession by capture. 
 
 It requires something more than a mere declaration that the Government or citi- 
 zens of the United States, or even other countries interested in the seal trade, are 
 losers by a certain course of proceeding to render that course an immoral one. 
 
 That is all the defence — a defence based upon a technical proposition 
 of law — that you cannot call this contra bonos mores, (as my friend the 
 Attorney General argues here) until it is agreed by nations so to clas- 
 sify it. My friend Mr. Coudert was kind enough to attribute to me the 
 honour of having introduced into this discussion the Latin phrase contra 
 bonos mores. I must disclaim it. Such ideas as I possess I am under 
 the necessity of expressing, as well as I can, in the English language, 
 with which I am more familiar. Whether the slaughter of animals in 
 this condition, in such a manner as has been alluded to, is a breach 
 of good manners, may be remitted to the forum of good manners to 
 consider. I should not so class it. It is very interesting to see in the 
 history of discussion, what is the first step that always has to be taken, 
 and always is taken, in defending that which is indefensible; it is to 
 find a phrase by which it can be spoken of without describing its 
 character. Some people acquire a^ considerable reputation in devising 
 ingenious circumlocutions by whicli they can describe a thing too objec- 
 tionable to be stated in straightforward language, through the con- 
 venient cover of the Latin or the French. That is not one of my accom- 
 plishments, and I must modestly disclaim the honour which my friend 
 has attributed to me of introducing this phrase. 
 
 Ifow in the latter part of this same letter there is one other sentence 
 by Lord Salisbury. 1 am reading, Sirj from page 210: 
 
 The statement that it is " a fact now held beyond denial or doubt that the tating 
 of seals in the open sea rapidly leads to their extinction" would admit of reply, and 
 abundant evidonce could be adduced on the other side. But as it is proposed that 
 this part of the question should be examined by a committee to be appointed by the 
 two Governments, it is not necessary that I should deal with it here. 
 
 IsTow, Sir, if I am not mistaken, in those two paragraphs in the same 
 letter, in one of which he says (as the learned Attorney General has 
 said here), that this busine5S; whatever it is, cannot be technically 
 classed as contra bonos mores until the nations have agreed to call it 
 so, — and the other in which he says that this statement by Mr. Blaine 
 that it certainly leads to extermination would admit of reply and that 
 there is or may be evidence on the other side, is every word that can 
 be ascribed to Great Britain from the beginning to the end of all this 
 correspondence, which approaches the point of defending either the 
 character or the consequences of this business that is called "pelagic 
 sealing." Another invention, (in the English language, but derived 
 from the Greek as far as the word " pelagic" is concerned), by which 
 this slaughter is characterized. 
 
 I wish now to call attention on this point to some extracts from 
 British correspondence, having pointed out that, strenuous as Great 
 Britain was in asserting what she claimed to be the rights of the sea, 
 the business itself never was defended excexit in the faint manner I 
 have indicated. On the other hand, in April 1890, Sir Julian Paun- 
 cefote writes to Mr. Blaine — I am reading from the same United States 
 Appendix, page 205. 
 
 It has been admitted, from the commencement, that the sole object of the uco- 
 ciation is the preservation of the fur-seal species for the benefit of mankind, and 
 that no considerations of advantage to any particular nation, or of benefit to any 
 private interest, should enter into the question. 
 
ORAL ARGUMENT OF HON. EDWARD J. PHELPS. 27 
 
 Again under date of May 22nd 1889, pages 207 to 209 of the same 
 book, Lord Salisbury writing to Sir Julian says : 
 
 Her Majesty's Government would deeply regret that the pursuit of fur-seals on 
 the high seas by British vessels should involve even the slightest injury to the 
 people of the United States. If the case he proved, they will be ready to consider 
 what measures can he properly taken for the remedy of such injury, but they would 
 he unable on that ground to depart from a principle on which free commerce on the 
 high seas depends. 
 
 Sir Julian under date of June 3rd 1890, writes to Mr. Blaine at page 
 217 of the same book. 
 
 Her Majesty's Government are quite willing to adopt all measures which will be 
 satisfactorily proved to be necessary for the preservation of the fur-seal species, and 
 to enforce such measures on British subjects by proper legislation. 
 
 On June 9th 1890 at page 220 of the same volume Sir Julian writes 
 again to Mr, Blaine : 
 
 Her Majesty's Government have always been willing, without pledging themselves 
 to details on the questions of area and date, to carry on negociations, hoping thereby 
 to come to some arrangement for such a close season as is necessary in order to pre- 
 serve the seal species from extinction. 
 
 Then on June 20th 1890, Lord Salisbury writes to Sir Julian, at page 
 286 of the same book : 
 
 Her Majesty's Government always have been, and are still, anxious for the arrange- 
 ment of a convention which shall provide whatever close time in whatever localities 
 as is necessary for the preservation of the fur-seal species. 
 
 Then on the 21st of July 1891, Lord Salisbury again expresses him- 
 self thus to Sir Julian at page 290 of the same book : 
 
 Whatever importance they 
 
 (the British Government) 
 
 attach to the preservation of the fur-seal species — and they justly look on it as an 
 object deserving the most serious solicitude — they do not conceive that it confers 
 upon any maritime power rights over the open sea which that power could not assert 
 on other grounds. 
 
 And on page 244 of the same volume his Lordship says in the same 
 letter. 
 
 Her Majesty's Government have no objection to refer the general question of a 
 close time to arbitration or to ascertain by that means how far the enactment of 
 such a provision is necessary for the preservation of the seal species, but any such 
 reference ought not to contain words appearing to attribute special and abnormal 
 rights in the matter to United States. 
 
 These are but selections. There are other passages, to the same 
 purport, showing that the position which Great Britain assi.imed in the 
 second stage of this negotiation with Mr. Blaine was that the result 
 of the negotiation ought to be that all measures that were found to be 
 necessary for the protection of the seal, without regard to the advan- 
 tage of any nation or of any interest, should be taken. Then it was 
 proposed by Great Britain — this was all long after the views of Canada 
 had been heard — to have these measures ascertained by a Joint Com- 
 mission. The proposition for a Join£ Commission, which resulted in 
 the provision of the modus vivendi of this Treaty, came in the first 
 place from Great Britain. It was in the first instance resisted by the 
 United States. It was adhered to by Great Britain with so much per- 
 tinacity that it was finally adopted. Having reached the point of 
 agreeing that whatever was necessary for the preservation of the race 
 would be assented to, the question then being what is necessary — a 
 
28 ORAL ARGUMENT OP HON EDWARD J. PHELPS. 
 
 point on which the British Government never expressed itself— it said, 
 "we will refer that to a Commission". 
 
 In Sir Julian's le'/ter of April 30th 1890 in the same volume from 
 which I have been reading at page 205 he says : 
 
 The great divergence of views -whicli exist as to whether any restrictions on pelagic 
 sealing are necessary for the preservation of the fur species, and if so as to the char- 
 acter and extent of such restrictions, renders it impossible in my opinion to arrive at 
 any solution which would satisfy public opinion either in Canada or Great Britain 
 or in any country which may be invited to accede to the proposed arrangement 
 without a full inquiry by a mixed commission of experts the result of whose labours 
 and investigations in tide region of seal fishery would probably dispose of all the 
 points in dispute. 
 
 And in that letter is proposed the draft of a legal convention consti- 
 tiiting such a commission. 
 
 In the note of May 23rd to Lord Salisbury, Sir Julian says in relation 
 to an interview with Mr. Blaine in which he bad been urging upon the 
 latter the propriety of adopting Lord Salisbury's proposed convention. 
 
 Moreover, it supplies the most complete machinery for arriving at a final decision 
 as to what regulations should be adopted for the preservation of the seal species. 
 
 Mr. Blaine replies to Sir Julian's note in the letter of April 30, 1890, 
 in the same book, page 204, but he fails to comment on the position and 
 he rejects the draft convention. 
 
 I need not read this correspondence, more or less of which has been 
 referred to before. It shows throughout what I have stated, that this 
 proposition for a joint commission came from Great Britain in the first 
 place, was received with disfavor by the United States Government, 
 was pressed again and again, assumed different forms, and finally was 
 assented to by the United States Government and found its way into 
 the Treaty. 
 
 What, then, was the final result of all this up to the time of the com- 
 mencement of this Arbitration ? It was that the Convention first agreed 
 to, and delineated on the map, having fallen through for the reasons I 
 have stated, and the negotiation being renewed, the attitude of Great 
 Britain was that while the question of right must remain to be decided, 
 which they could not agree upon, the matter of regulations should be 
 referred to a joint commission, which they were confident would settle 
 the business. So was Mr. Blaine. So were all those who had anything 
 to do with it. They did not have a moment's doubt that when a commis- 
 sion of experts were sent out upon that theory to visit the islands and 
 examine the subject and inform themselves and decide what was neces- 
 sary for the preservation of the species, both nations would at once 
 accede to it : but in the event that they failed to agree, it was provided 
 that the subject should then be referred to arbitration — then and not till 
 then — a contingency not foreseen, and which ought not to have occurred. 
 We shall see as we go on how it happened that it did occur. It was in 
 that event only that this Tribunal, provided for by the treaty, was to be 
 charged with the business of doing what was first assigned to the mixed 
 commission ; and if that had been satisfactorily performed, both nations 
 would have been quite willing to waive the discussion of the abstract 
 question of right. 
 
 What is the attitude of this case as it appears before you now? The 
 question of right still remains, as it remained before, to be discussed 
 and decided. The learned Attorney General was desirous to persuade 
 you that even the question expressed in the broad and comprehensive 
 terms of the sixth article only meant that you were to try again these 
 old Eussian questions involved in the first four. I do not think that 
 
ORAL ARGUMENT OP HON. EDWARD J. PHELPS. 29 
 
 requires reply. It did not seem to me that the suggestion commended 
 itself to the judgment of the Tribunal. The question of right, upon 
 whatever ground it is asserted and upon whatever ground it is denied, 
 remains. My learned friends were alarmed apparently at a remark that 
 fell from Senator Morgan, that he thought there was another question in 
 this treaty. They seemed to fear there was some point as yet unknown 
 and undisclosed, that was liable to spring out of the recesses of this 
 document to embarrass the Tribunal, or to subject them to some claim 
 they had not heard of. I did not so understand the remark of the 
 learned Arbitrator. Perhaps I misunderstood it, I understood him 
 to mean that these questions were to be read in the light of the first 
 article of the Treaty, and that when read in connection with the con- 
 text they submitted exactly the proposition I have submitted this 
 morning, whether the right existed to carry on this business with Its 
 necessary consequences. 
 
 Kow sir, it is for those who engage in such a business with such con- 
 sequences to justify it. The attemj)t to assume that they are engaged 
 in a lawful business and are surprised to find that upon some uncom- 
 prehensible grounds the pursuit of that business is objected to, will not 
 succeed. The burden of justification is on the other side. To assume 
 that they are simply engaged in a lawful industry which the United 
 States claims upon some ground to interrupt, is to beg the whole 
 question. 
 
 The question in regard to regulations I shall encounter later on. I am 
 now saying, as 1 have said, that when a Grovernment presents itself, as 
 the proprietor of such territory, with such an industry established upon 
 it for nearly half a century, and when it is proposed by the individuals, 
 whose description I shall have to deal with later, to destroy that industry, 
 to exterminate the race of animals upon which it is founded, and to do 
 it in a manner that is prohibited by all law everywhere, and which is so 
 barbarous and inhuman that it ought to be.prohibited, if it had no con- 
 sequences at all of an economical character, the parties that propose to 
 do that under the pretence of the freedom of the sea, must establish 
 their justification. The burden is upon them. 
 
 !N'ow, how do they propose to do it? They rest their case upon two 
 proposition s : first, that the seal s are ferce naturce, and are therefore open 
 to be killed by anybody; secondly, that the high sea is free, so that con- 
 duct such as I have described, if the Tribunal find as a matter of fact 
 that it is described correctly, is a part of the freedom of the sea, and 
 must be submitted to by any nation, whatever may be the consequences. 
 Those are the propositions. Thatis the justification. Both those prop- 
 ositions we deny. 
 
 But before I discuss them, I had intended to contrast the position of 
 Great Britain on this trial with the position that I have shown that it 
 occupied all through the correspondence. There, questioning the right, 
 undoubtedly, of the United States Government to protect itself, gen- 
 erous and complete in its offer to join the United States in doing every- 
 thing that was necessary without regard to any interest. Here, the 
 whole case, aside from the discussion of the question of strict right, has 
 degenerated into a defence of the business of pelagic sealing, from the 
 report of the British Commissioners, with which they set out, to the end 
 of the argument of my learned friend, Mr. Eobinson, when he appealed 
 yesterday to the Tribunal to take care of the 1,083 people who are engaged 
 in the business of pelagic sealing, to take care of the towns that desire 
 to enhance their prosperity by inducing people' to come there to engage 
 
30 ORAL ARGUMENT OP HON. EDWARD J. PHELPS. 
 
 in such a business as that, to remember that this was a most important 
 industry, and that no regulations must be adopted except such as were 
 perfectly consistent with its preservation; a resistance from beginning 
 to end to every proposal of regulations that did not provide — not only 
 admit, but provide — for the continuance of this business in all its sub- 
 stantial particulars. 
 
 Which government has changed front in the history of this business? 
 Is it that of the United States or that of Great Britain 1 On the diplo- 
 matic correspondence the I'ecord of Great Britain is perfectly clean and 
 fair. It is not open to criticism except as to the correctness of their 
 proposition that we may not defend ourselves against this wrong — a 
 question that admits, of course, of discussion ; but as to the rest of it, 
 as to the inhumanity, the extermination, the injury to the United 
 States — all that is put aside. Here we encounter, from one end to the 
 other, the most strenuous resistance to any sort of regulation of any 
 kind that puts any real restriction upon the business of pelagic sealing. 
 
 Returning, then, in the time that remains to me this afternoon, to the 
 question of this justification, we reply to the propositions of Great Brit- 
 ain, that the seal are not ferce naturm, in the legal sense of that term ; 
 that they are, in the true sense of the word, the property of the United 
 States; and what I mean by the term "property", I shall try to describe. 
 That, in the second place, such a business as we claim pelagic sealing is, 
 is not open to anybody, upon the open sea any more than any where 
 else, and that any nation that is injured by it has a right to object. 
 
 My learned friend the Attorney- General informs us that this case is 
 not to be decided upon what appears to be right, or what appears to be 
 wrong. It is to be determined upon the principles of international law ; 
 that the object of this Tribunal, the duty of this Tribunal, is to admin- 
 ister the principles of international law. We agree to that. We have 
 not proposed any other standard. We have not asked to set up any rule 
 of conduct that is not justified by what is properly called international 
 law. Then what is international law? He tells us it is what the nations 
 have agreed to ; that the idea that international law depends upon what 
 is right, upon what is just, upon what is indicated by morality and fair 
 dealing, is chimerical; that a person who asserts any such proposition 
 goes up into the clouds of metaphysics, and occupies himself with dis- 
 sertations not upon what the law is, but what it ought to be; and that 
 this Tribunal is not convened for that purpose. 
 
 On those questions of international law in respect to which it may be 
 admitted that nations have so far concurred that the points have become 
 settled and established and understood, there is no question that such 
 conclusions prevail. N"obody on our side has pretended that you 
 were to overrule established principles of international law that have 
 become settled and recognized, because you were brought to see or to 
 think that you saw, that they are in some respects contrary to ethical 
 considerations; so that if a vessel were brought before His Lordship, 
 if he were sitting again in the court over which he so long presided 
 with such eminent distinction — captured in war, for a breach of block- 
 ade, or for carrying contraband of war, or captured by a privateer, 
 legitimately commissioned by one of the belligerents and brought in for 
 condemnation in his court, — he is to be harangued upon the subject of 
 whether the established law of the world upon those points is or is not 
 in conformity with ethical considerations, is or is not what he would 
 declare the law to be if in place of a judge he were a law-giver, to pro- 
 pound law instead of administering it. Nobody pretends that. It would 
 be absurd. 
 
OEAL ARGUMENT OF HON. EDWARD J. PHELPS. 31 
 
 In the first place, we contend that this case of ours, this right of 
 property or protection, call it what you please, is as completely estab- 
 lished by the just principles of international law as it is by the cousid- 
 eration of ethics and morality. 
 
 But waiving that point for the moment, which we will discuss by and 
 by, suppose it is not. Suppose you have here presented to you for 
 decision a question of international law, which can be said to be a new 
 one. Such cases are of very rare occurrence. That place and those 
 transactions in this world which the " gladsome light of jurisprudence" 
 has not reached are very few. But suppose you encounter one here. 
 The question confronts you as a Tribunal, and, whether it is new or old, 
 it must be decided; and if in looking over the fleJd of what is called 
 authority you are unable to say that it has been provided for before, 
 what then ? Shall it be decided right, if what is right is plain and clear 
 not only to the legal sense, but to the most common and way-faring 
 sense in the world? " Oh no" says my learned friend; " you must not 
 do that. The nations have not consented." But you must decide it. 
 If you cannot decide it right, you must decide it wrong. Have the 
 nations consented to that? Is that what the nations have agreed? You 
 are in a position where you must go one way or the other, where you 
 cannot fall back and say, "We do not know; it is too soon to decide 
 this question. The nations have not agreed. It is plain how it ought 
 to be decided, if we were at liberty to do it, but we are admonished 
 that no considerations of that sort constitute international law, and that 
 the sanction of the nations must first be had." Therefore, what is the 
 alternative? Decide it wrong? If this is — what I altogether deny — 
 such a case as that; if this is a new question; if it is one upon which 
 you close your books, having searched them in vain for light, the 
 alternative is to decide it right or to decide it wrong. If nations have 
 not agreed that you may decide it right, then you must assume that 
 they have agreed that you should decide it wrong. That is the irresisti- 
 ble logical conclusion. My friend does not help you out of that dilemma 
 with his definition of International law. 
 
 What is another consequence of his proposition? It is that inter- 
 ' national law can never advance another step. The last book is written ; 
 the last addition has been made. It is like the Mosaic law, written, 
 laid up, historic, and cannot be extended another step in the adminis- 
 tration of human affairs. In other words it is a dead law, because any 
 system of law perishes when it ceases to keep up with all the vicissi- 
 tudes, emergencies, requirements and conditions of human affairs; 
 when its principles cease to be elastic enough to comprehend and take 
 in every human transaction that can possibly occur on the face of the 
 earth, and to settle all the rights that grow out of it, it perishes, as 
 systems of law have perished before. 
 
 How can it advance? How has it advanced? What has been the 
 growth of International law? There is no legislature to propound it, 
 there are no Courts comi)etent to declare it. There can be no general 
 convention of nations called to agree to it. If you put a provision into 
 a Treaty, that only makes the law of a contract, that is to say a law that 
 binds the two parties to law which all the rest of the world may disre- 
 gard. That is not international law. How then has it arisen? It has 
 advanced from its earliest rudiments by a nation asserting for itself in 
 every new emergency, under every new condition, in every step forward 
 that human affairs have taken, what it claims to be right. 
 
 What it claims to be right, but that does not make it so. It remains 
 to be seen what the world says, what intelligent mankind say. And 
 
32 OKAL ARGUMENT OF HON. EDWABD J. PHELPS. 
 
 perad venture by the general acquiescence of men, by the approval of 
 wise men, by the endorsement of Courts of Justice — in all ways in which 
 the sentiment of the world transpires, the claim may bye and bye come 
 to be what we call settled — no longer to be discussed. And the history 
 of international law is simply the history of those assertions that have 
 been successfully made by nations in their own behalf on the basis of 
 what they thought was right and under the pressure of what they 
 thought to be a necessity, or at least a propriety — the assertion I say 
 of propositions and principles which have thus been gathered by the 
 subsequent general concurrence of men into the purview of what is 
 called international law. 
 
 Suppose, Sir, that any proposition, that if stated now would be said 
 to be perfectly settled, was presented to a Court for the first time. 
 Suppose there never had been a blockade of a port in the history of 
 the world. Suppose now for the first time in a warfare between two 
 great maritime Powers, one of them sends a squadron and blockades 
 the port of another and stops commerce, trade and intercourse, and 
 gives notice that it will capture and confiscate any vessel that under- 
 takes to violate the blockade and carry on any trade, however innocent. 
 Another nation — a neutral, says: "We recognize no such law as that. 
 We are not parties to this war. We are engaged in an innocent, a 
 lawful trade. We desire to continue it. We are not to be put down 
 by either of these belligerents ; we shall go in ; " — and such a vessel is 
 captured and brought up for condemnation. What shall the Court of 
 the nation who has made that assertion say to such a case? Why, that 
 nations have never agreed to this. That would be quite true. It is the 
 first case that ever occurred. It is the first vessel that ever was seized 
 for attempting to violate the first blockade that ever was made. What 
 are you going to do with if? Ton must decide it one way or another. 
 You must confiscate the vessel or let it go. I might continue these illus- 
 trations by referring to every proposition that might be agreed by 
 international lawyers to be among the settled jjropositions. Suppose 
 it is presented now for the first time. Why, the question must be — 
 and no other ground could be found for disposing of it — what is right 
 under the circumstances of the case? What do the necessities of the 
 nation that has established this blockade require? What is it that 
 the just defence of its interests needs? 
 
 That must be the resort because there is no other; and unless there 
 had been some first case, there would be no international law to this 
 day. Piracy never would have become an offence against nations. 
 How came it to be an offence against nations? How came it to be on 
 the open seas a business that anybody could interfere with, except the 
 vessel that was attacked. How came it to pass that if an American 
 pirate should capture a British vessel, a French cruiser might carry 
 the pirate in for prosecution to a French Court, if Prance chose to 
 empower her Courts to deal with such cases ? It came to pass because 
 under the pressure of the necessity, the right came to be asserted. 
 The justice of the claim and the necessity of the case were so far 
 recognized that the world approved of it; and it is by these successive 
 steps, and by these steps alone, that every single proposition that may 
 today be successfully affirmed to belong to the domain of international 
 law had its origin, obtained its maturity and passed under the sanction 
 which Courts of Justice and international obligations confer. 
 
 Now what is our proposition ? It is that, where questions have become 
 settled in this way, they establish the law, and the law is not open to 
 
ORAL ARGUMENT OP HON. EDWARD J. PHELPS. 33 
 
 be changed by purely ethical considerations, until they become, at any 
 rate, so strong that a nation is justified in asserting them; and so 
 gradually the law becomes changed. On the other hand, as when the 
 first Napoleon undertook to carry the right of blockade, that I have 
 been speaking of, a step further, and to provide that a "paper block- 
 ade", as it was called, might be established by proclamation, and that 
 he might exclude the vessels of neutrals from ports, while no block- 
 ading force was present, by virtue of a proclamation, what said the 
 world to that? They rejected it. There is an illustration of an asser- 
 tion that did not become international law. Then if you have before 
 you a new question, or a new question in its application, have you 
 anything to resort to when.it must be decided, except the plain princi- 
 ples of right and justice, if you are able to see what they are, until the 
 opinion of the world upon it transpires? It is a proposition that can 
 be sustained by numberless illustrations. The only question can be 
 ■whether the point is new, or is covered by the application of an old and 
 established principle. That is the meaning of the authorities that 
 were cited in the opening argument on the part of the United States so 
 largely. That is what authors mean when they say that international 
 law is founded on the principles of right and justice and conscience. 
 They do not mean to say that established law may be defeated by 
 resort to those considerations; but they do mean to say, that is the 
 foundation, that is the source from which it is all derived. Those are 
 the principles on which we are to proceed — until the time arrives when 
 it is found that the contrary has become so far established that it is 
 necessary to respect it. I shall have to refer to some authorities on this 
 point, but the reference will be only brief. 
 
 The President. — Does this contention of yours go further than what 
 you would say for municipal law ? 
 
 Mr. Phelps. — No, Sir, the same principle is at the root of municipal 
 law; and I shall cite to-morrow a provision from the French Code that 
 seems to me to bear upon that. But municipal law has two resorts that 
 are not open in international law. There is the Legislature of the 
 Municipality, which can pass Statutes which are law propria vigore. 
 Whether right or wrong, they become the law. There are the Courts 
 Bitting constantly to extend and apply the general principles of law so 
 as to cover the case. 
 
 The President. — So is Diplomacy, I might suggest. You have been 
 a Diplomatist yourself. 
 
 Mr. Phelps. — Yes ; so is diplomacy, but without the sanction attend- 
 ing the decisions of the constituted Tribunals in municipal Government. 
 Therefore, municipal law has its regulated steps of progress, either 
 through Statutes or through the Judgments of the Courts, because 
 both those sources are authority, — they make law. But when it comes 
 to the point which your question, Sir, suggests, when addressing the 
 Court and invoking the application of an established principle to a new 
 case, there you fall back on, and every Court, consciously or uncon- 
 scioiisly, must be guided by, the plain consideration of right or wrong, 
 until it gets to the line which separates the domain of law from that of 
 morality. Therefore, I might appeal to a Court of Justice for some 
 remedy, or redress, which morally I am entitled to, and might be met 
 with the answer, " Your claim is only a moral one. You are outside of 
 the domain of municipal law; you have sustained a wrong that, as 
 moralists and as just men, we might be glad to see redressed ; but it is 
 not within the domain of law to deal with your case. That domain 
 
 B S, PT XT 3 
 
34 ORAL ARGUMENT OF HON. EDWARD J. PHELPS. 
 
 must be enlarged by a Statute before we can deal with it." Biit as 
 long as the suitor is within what may be called the province of munici- 
 pal law, as long as he is dealing with a subject that the law deals with, 
 so long all tbat he has to do is to make out a just case, unless he is 
 encountered by a Statute or adverse decisions that have settled the 
 law otherwise. That is the only distinction, in my judgment. Sir, if I 
 have answered youj? .question. 
 
 The President. — Yes; I am much obliged. 
 
 [The Tribunal thereupon adjourned until Friday, the 23rd of June, at 
 11.30 o'clock.] 
 
FORTY-FOURTH DAY, JUNE 23^^, 1893. 
 
 Mr. Phelps. — At the adjournment yesterday, Sir, I bad been consid- 
 ering the proposition in respect to international law which had been 
 advanced by my learned friends on the other side, particularly by the 
 Attorney-General, that nothing could be comprehended within that 
 definition that had not received the sanction of the established iisage of 
 Nations; that the requirements of justice, of ethics, of sound morality 
 between Nations were not sufficient until the further sanction had been 
 obtained of the custom of nations. I had endeavoured to point out that 
 the proposition involved this necessary consequence, that international 
 law became incapable of advance; that it terminated with the present; 
 that whenever any new question was presented, it necessarily fell 
 without the scope, and outside of the domain of international law. 
 And that the further consequence follows my learned friends' proposi- 
 tion, if it were sound ; that if a new question arose within the province of 
 international law, affecting those subjects with which international law 
 must deal in the intercourse of nations, — if there were no established 
 usage for deciding it right, the consequence would be that it must be 
 decided wrong. It will be for the Tribunal to remember what I am 
 sure they do not need to be reminded of, that the constitution of inter- 
 national arbitration is in itself a new feature in international law. 
 Only on two or three occasions in the history of the world has any such 
 thing been attempted, and those iiave been occasions when the issues 
 between the disputing nations were principally, if not entirely, issues 
 of fact, or of figures, which involved no questions of international law, 
 and no other novelty than always attaches to the finding of facts upon 
 evidence in disputed cases. It must be remembered, then, if such 
 Tribunals, as I am now addressing, are to exist, and are to be useful, 
 they must be authorized to meet every case of new impression which 
 it becomes necessary to decide. They are not called together, they can 
 never be called together, for the purpose of simply acknowledging their 
 own incapacity; for the purpose of saying "You have invited us to 
 determine this important question which must be determined one way 
 or the other between these Nations, which, if it cannot be determined 
 by arbitrament, the nation claiming the right must assert for itself. 
 You have invited us in the interests of peace and of humanity to deter- 
 mine that question, but we find that we are incapable of it, because it 
 has never arisen before." The fact that it has never arisen before is 
 the very reason why an arbitration becomes necessary. Nations do 
 not resort to Arbitration to determine principles of law which are 
 already determined and understood. There is no occasion for that. 
 No intelligent nation would undertake to dispute such a proposition. 
 It is when they differ upon the point of what is law — when the question 
 is so far undetermined by usage and custom that it cannot be unanswer- 
 ably asserted on either side, that the answer should be one way or the 
 other, it is then that tlie intervention of the Tribunal is agreed upon. 
 
 35 
 
o6 ORAL ARGUMENT OF HON. EDWARD J. PHELPS. 
 
 I beg that it may not be inferred from what I say upon this point, 
 which I hope to dismiss pretty soon, — I beg that it may not be under- 
 stood that I am treating this case as a new one — as one that is not 
 covered by the established principles of law. I shall contend to the 
 contrary with very great confidence. But I am on the point which at 
 the threshold should be very clearly understood, of what is to take 
 place, if I am, in the judgment of the Tribunal, wrong in my assump- 
 tion; if instead of concurring in my view that the geuwal principles 
 of law international and municipal applicable to this case control and 
 prescribe its decision, the Tribunal or some of its Members may be of 
 opinion that a question more or less new is presented. Therefore it 
 becomes important and material to clearly understand as far as possible 
 in the first instance what is to take place in that event. 
 
 Now, Sir, if I were to turn about the proposition of my learned 
 friend, and apply it to his own case, I fear the result would not be such 
 as would satisfy him with the theory from which it was derived. The 
 fallacy of the whole argument on the part of Great Britain is, that it 
 starts by assuming that the destruction of the seal herd is the exercise 
 by the persons engaged in it of a plain and clear right, which it is the 
 object of the United States in some way to defeat or to restrict. That 
 begs the whole question, and brings the case to an end as soon as it is 
 begun ; for if these people are in the exercise of a right, upon what 
 ground can it be denied to them? On what footing can the United 
 States complain of the consequences to them of the exercise by these 
 people of what is a right in the view of international law? The case 
 is at an end when that is assumed. But the question in this case is 
 whether they have such a right, upon the facts and circumstances as 
 they are found to exist, taking the whole case upon the evidence, and 
 determining, first of all, what are the facts material to be considered. 
 What is this conduct? What is its character? What are its conse- 
 quences? The question is whether those who are seeking to work such 
 consequences, and to do such things, can make ont its justification. 
 
 I^ow, says my learned friend, international law is what the nations 
 have agreed to regard as international law. Is there then any usage in 
 favor of conduct of this description in the whole history of mankind, 
 in all the intercourse of nations since the dawn of civilization, and 
 since law began to take the place of mere violence? Is there any 
 precedent for such a business as this is, if it is what we claim it to be, 
 and what I expect to demonstrate it is 1 Did it ever take place before ? 
 Is there a treaty, is there a judgment, is there the language of any 
 writer, is there anything in law, literature, or history, that can be cited 
 in behalf of such a proposition? 
 
 It is for them to establish this justification, and if my learned friend's 
 idea of international law is right, we might safely enough accept it for 
 the purposes of this case. 
 
 This Tribunal is substituted, by the agreement of parties, for the 
 right that the United States would have had to assert that proposition 
 for themselves, and to enforce it, if they could, in this individual case. 
 They have waived that; they have discharged the vessels, or some of 
 them, that were condemned; they have stopped the arrest upon the sea 
 of any further cruisers pending those negotiations. They have asked 
 you to say what they would have had a right to say for themselves if 
 your intervention had not been invoked. Is the answer to that ta be 
 "We do not know, because it is new; because there has been no usage 
 of Nations"? Why? Because no such outrage Avas ever attempted 
 before. There is no precedent because there never has been an occasion 
 
ORAL ARGUMENT OF SON. EDWARD J. PHELPS. 37 
 
 for a precedent. There is no usage, for nobody ever attempted any- 
 such thing before; and, therefore, while what is right is plain, while 
 the way-faring man, though a fool, when he looks at the circumstances 
 of the case,, can see what justice calls for, what is sound policy, and the 
 interests of mankind so far as they have an interest in this subject, — 
 while that is all plain enough, while we can see, as my learned friend 
 says, what the law ought to be, we are powerless to declare it. Then, 
 Sir, when you have so decided, you have decided another thing; and 
 that is, that no further international Arbitration will vex the general 
 ear of mankind, except upon pure questions of fact. 
 
 If that is to be the conclusion, if that is to be the contribution of 
 such Tribunals to the science of international law, their mission will be 
 very speedily terminated. You are in the place, Sir, I most respect- 
 fully say it, which the Government of the United States might have 
 occupied for itself. Instead of asserting their right and putting them- 
 selves on the general sense of mankind as every nation does in every such 
 case, that Government has stepped aside and has said — ^" Say you what 
 we should have been justified in doing; say you what you would have 
 done if you had constituted the Cabinet that controlled the affairs of 
 the United States Government, say you what you would have done. 
 Sir, if you had been the President of the United States, or Secretary of 
 State, in this emergency; tell us what you think you would have had a 
 right to do and what it was necessary to do, and what you believe that 
 mankind would have jastifled you in doing." 
 
 Another word about the assent of mankind, which is, of course, the 
 ultimate authority, the last judgment on questions of international law. 
 It comes to that sometime. A word about how that is to be ascertained 
 where it has not been so far expressed by general usage that it may be 
 regarded as established. In the first place, it may be inferred in the 
 proper case. In the next place, it may be presumed in the proper caSe. 
 It may be anticipated by inference; it may be anticipated by presump- 
 tion, or by both. It may be inferred where the proposition in question 
 has been made the municipal law, as in this case, of every civilised 
 country. Are you to infer that, if all nations could be called together 
 to decide upon this question, they would reject the universal rule which 
 they all adopt at home, — the protection of animals of this kind during 
 the breeding time that are valuable to man? That is universal law 
 now in civilisation; and as I said, it goes even further, for there are 
 still left some other motives in our race besides those of dollars and 
 cents, and pounds and shillings. It goes even further ; it protects those 
 harmless animals with which the Creator has furnished this world, and 
 which now live here without detracting in any way whatever from the 
 use and enjoyment that mankind has to make of the world. It pro- 
 tects even those, and especially does it protect those which are not 
 merely harmless, not merely contributors to what might- be regarded 
 as perhaps a sentimental enjoyment, but to those which do minister, in 
 their place and according to their measure, to the wants and comforts, 
 or luxuries, of mankind. That is universal law. If ow when the question 
 is whether that is to be applied to this case, what is the fair inference'? 
 
 In the next place it is to be presumed, because it is to be presumed 
 that every nation will assent to what is plainly right and just. I am 
 making these observations upon the assumption that what we contend 
 for here is plainly right and just. We shall consider that more fully 
 later on. I assume that, for the purpose of what I am saying now. If 
 there is a plain and obvious right, if tUere is a plain and obvious wrong 
 in the statement of a question, and you have to presume which way 
 
38 ORAL ARGUMENT OF HON. EDWARD J. PHELPS. 
 
 mantind will go on tliat subject, it is not merely the presumption of 
 comity, the presumption of courtesy which obtains inexorably in all the 
 intercourse of nations, whereby — (whatever tbey may think) — they are 
 compelled to the external courtesy of assuming that the other nation 
 means to do what is right. Why, Sir, in any diplomatic correspondence 
 that ever took place, or that can take place, between nations, is there 
 anything that would bring it to a more speedy and a more proper termi- 
 nation than for one party to permit itself to insinuate in its correspond- 
 ence that the other side does not mean what is right? Can it be carried 
 any further? Will any nation submit to that? If its adversary, its 
 opponent, its brother nation, so far forgets the proprieties and amenities 
 which are observed between nations, as to charge, even indirectly or 
 remotely, that it is not the purpose of the nation with which it is dealing 
 to do right — that it means to do wrong — there is the end of the discus- 
 sion. Until that is withdrawn and apologised for, it can be carried no 
 further with any self respecting nation. 
 
 No diplomatic representative would for a moment, in a question that 
 was the subject of discussion or negotiation, permit himself to send 
 forth a document that he had not carefully revised for that purpose 
 alone, to see if, in the warmth of debate, in the earnestness of his con- 
 viction, he had used one word that could possibly be construed as an 
 intimation that it was not the intention of the nation with which he 
 was dealing to do what was right and what was just. 
 
 I have pointed out what appear to me, with much deference to my 
 learned friends, to be the necessary results of their definition of inter- 
 national law. Let me now state our proposition. I have stated theirs. 
 I believe I have stated it fairly. What is our proposition in the place 
 of it? It is that the law of nations is in every case, and all cases of 
 new impression, what can be seen to be just and right, what the human 
 conscience, what the sense of right and wrong, what the general ideas 
 of morality, ethics, and humanity, that prevail in the world, recognize 
 as right. You may call it the law of nature if you please. It is often 
 called so by distinguished writers. My learned friend objects to that. 
 Then let him call it by some other name if he likes it better. I care not 
 what it is called. That is. what constitutes the law of nations in every 
 case that can possibly arise between nations, except where the usage of 
 nations has settled the particular point or question otherwise. 
 
 As I said yesterday, we do not contend that we are to harangue a 
 Court of Justice or any tribunal that has to deal with such matters in 
 opposition to established rules of international law, on the ground that 
 they contravene justice or morality. Where they do, a gradual change 
 will be brought about. The law will be kept abreast somehow of the 
 general sentiments of mankind. But in addressing a tribunal in a 
 particular case, we do not contend that we can abrogate an established 
 rule of law by pointing out, if we were able to point out, that the true 
 and sound morality was the other way. Therefore, I say there is noth- 
 ing of international law, and there never can be anything in inter- 
 national law except these recognized principles of right and justice 
 between nations, that obtain between nations as far as they are appli- 
 cable, until they are met by a proposition of law that has become so far 
 established by the usage of nations, that a tribunal is not at liberty 
 to disregard it. Abstract principles are of no value in a case of this 
 sort, unless they apply to the concrete case before us. It is much less 
 important to enlighten mankind than to do justice in the case to be 
 determined. If we are right injbhe facts we assert, if from those facts 
 the character of the conduct which is attempted to be justified, is made 
 plain and clear as opposed to justice, morality, and sound policy, then 
 
ORAL ARGUMENT OP HON. EDWARD J. PHELPS. 39 
 
 it is against international law, nnless it can be shown on the other 
 side that a usage to the contrary has become established. 1 shall 
 trouble you, sir, as this proposition has been disputed, an elementary 
 one, as it seems to me, with the thoughts of a few writers whose authority 
 is universally recognized in the world. 
 
 It is said by my learned friends, that my associate, Mr. Carter, has 
 gone into the clouds, and into the region of metaphysics, and has 
 explored the writings of those philosophers who consider what the law 
 ought to be, and what the law will be when the millennium comes, and 
 proposes to substitute that for the law. What we contend for in the 
 present case we contend is the law. It may be alarming to have it 
 shown also that it ought to be the law; but I do not think it is fatal. 
 I do not think it is fatal to the propositions we advance that my learned 
 friend, Mr. Carter, has demonstrated that they ought to be the law, 
 and thaf it is necessary that they should be the law, if any property 
 of this kind is to remain on the face of the earth for a longer time than 
 it takes to destroy it. We are putting forward what we say is the law, 
 as completely established, more completely established, by the weight 
 of what may be called authority, than any proposition in the domain 
 of international law, because this is the foundation that underlies it all. 
 I shall not read I hope at any weary length, but I must trouble you with 
 a few brief extracts that are directly to the point, not of what ought to 
 be law, but of what is the law. And I will refer in the first place to 
 the judgment of Sir Robert Phillimore in the case that has been referred 
 to before, of the Queen v. Keyn, iu the 2nd Exchequer. Let me say 
 first that in that case the question was .so far a new one that the Judges 
 of England all assembled were divided as nearly as possible equally in 
 respect of its determination. The judges not only differed as to the 
 conclusion, but those who agreed in the conclusion differed widely in 
 the grounds upon which they rested their judgments. It was in such 
 a case that Sir Robert Phillimore used this language: 
 
 Too rudimental an inquiry must be avoided, Ijut it must be remembered tliat the 
 case is one of primw impressionis, of the greatest importance both to England and to 
 other states, and the character of it in some degree necessitates a reference to first 
 principles. 
 
 Then what are these first principles ? 
 
 In the memorable answer pronounced by Montesquieu to be r^ponse sans r^pUque, 
 and framed by Lord Mansfield and Sir George Lee, of the British, to the Prussian 
 Government: "The law of nations is said to be founded upon justice, equity, con- 
 venience, and the reason of the thing, and confirmed by long usage." 
 
 Chancellor Kent says on the same subject. (The quotation is from 
 the first volume of Kent's Commentaries pages 2 to 4.) 
 
 The most useful and practical part of the law of nations is, no doubt, instituted 
 or positive law, founded on usage, consent, and agreement. But it would be improper 
 to separate this law entirely from natural jurisprudence and not to consider it as 
 deriving much of its force and dignity from the same principles of right reason, the 
 same views of the nature and constitution of man, and the Hame sanction of divine 
 revelation , as those from which the science of morality is deduced . There is a natural 
 and a positive law of nations. By the former every state, in its relations with other 
 states, is bound to conduct itself with justice, good faith, and benevolence ; and this 
 application of the law of nature has been called by Vattel the necessary law of 
 nations, because nations are bound by the law of nature to observe it ; and it is 
 termed by others the internal law of nations, because it is obligatory upon them in 
 point of conscience. 
 
 Then passing a part of the extract which I will not take time to read, 
 though it is all very pertinent — 
 
 "The law of nations" is a complex system, composed of various ingredients. It 
 consists of general principles of right and justice, equally suitable to the govern- 
 ment of individuals in a state of natural equality and to the relations and conduct 
 
40 DEAL ARGUMENT OF HON. EDWAED J. PHELPS. 
 
 of nations; of a collection of usages, customs, and opinions, the growth of civiliza- 
 tion and commerce, and of a code of conventioual or positive law. 
 
 This is the point which I particularly desired to reach : 
 
 In the absence of these latter regulations, the intercourse and conduct of nations 
 are to be governed by principles fairly to be deduced from the rights and duties of 
 nations and the nature of moral obligation ; and we have the authority of the lawyers 
 of antiquity, and of some of the first masters in the modern school of public law, 
 for placing the moral obligation of nations and of individuals on similar grounds, 
 and for considering individual and national morality as parts of one and the same 
 science. 
 
 The law of nations, so far as it is founded on the principles of natural law, is 
 equally binding in every age and upon all mankind. 
 
 I refer also to the language of Sir Travers Twiss in his Treatise on 
 International Law, and an excellent treatise it is, as is universally 
 known. He divides the Law of nations as follows : 
 
 The natural or necessary law of nations, in which the principles of natural justice 
 are applied to the intercourse between states ; secondly, customary law of nations 
 which embodies those usages which the continued habit of nations has sanctioned 
 for their mutual interest and convenience, and thirdly, the conventional or diplomatic 
 law of nations. . . Under this last head many regulations will now be found which 
 at first resulted from custom or a general sense of justice. 
 
 Mr. Justice Story says; in the same argument the quotation will be 
 found : 
 
 In resting on the basis of general convenience and the enlarged sense of national 
 dvity, rules have from time to time been promulgated by jurists and supported by 
 courts of justice by a course of judicial reasoning which has commanded almost 
 universal confidence, respect, and obedience, without the aid either of municipal 
 statutes or of royal ordinances, or of international treaties. 
 
 And there is further cited in the same connection and on the same 
 page a note from Mr. Amos in his edition of Mannings International 
 Law: 
 
 Though the customary usages of states in their mutual intercourse must always 
 be held to afford evidence of implied assent, and to continue to be a mean basis of 
 a structure of the law of nations, yet there axe several circumstances in modern 
 society which seem to indicate that the region of the influence will become increas- 
 ingly restricted as compared with that of the influence of well-ascertained ethical 
 principles and formal convention. 
 
 There Mr. Amos with the acuteness that usually characterises his 
 observations, gives to the ethical considerations an increased influence 
 in the determination of what is called International Law, even over the 
 usage and customs which he admitted may control it. 
 
 Mr. Wheaton, the American writer, refers to this; and I read from 
 page 14 of the United States Argument. He has this passage to the 
 same point : 
 
 International law, as understood among civilized nations, may be defined as con- 
 sisting of those rules of conduct whicli reason deduces, as consonant to justice, from 
 the nature of the society existing among independent nations; with such definitions 
 and modifications as may be established by general consent. 
 
 Says Ortolan, and I read from the translation in the same argument; 
 at page 21 : 
 
 It is apparent that nations not having any common legislator over them have fre- 
 quently no other recourse for determining their respective rights but to that reason- 
 able sentiment of right and wrong, but to those moral truths already brought to 
 light and to those which are still to be demonstrated. This is what is meant when 
 it is said that natural law is the first basis of international law. This is why it is 
 important that Governments, diplomats, and publicists that act, negotiate, or write 
 upon such matters should have deeply (rooted) in themselves this sentiment of right 
 and of wrong which we have just defined, as well as the knowledge of the point of 
 certainty (point de certitude) where the human mind has been able to attain this 
 order of truths. 
 
OEAIi ARGUMENT OF HON. EDWARD J. PHELPS. 41 
 
 Vattel is also cited on pages 22 and 23 of the same book, from the 
 66th page of his work : 
 
 We must, therefore, apply to nations the rules of nature, in order to discover what 
 their obligations are, and what their rights: consequently, the law of nations is 
 originally no other than the law of nature applied to nations. 
 
 Ferguson, page 24 of the same book, uses this language: 
 
 Investigating thus this spirit of law, we find the definition of international law 
 to consist in certain rules of conduct which reason, prompted by conscience, deduces as con- 
 sonant to justice, with such limitations and modifications as may he established liy general 
 consent, to meet the exigencies of the present state of society as existing among nations and 
 which modern civilized states regard as binding them in their relations with one another, 
 with a force comparable in nature and degree to that binding the conscientious person to 
 obey the laivs of his country. 
 
 From Testa, the Portuguese writer, I will read from page 25 a few 
 lines: 
 
 Although in the philosophical order natural law occupies the first place, yet in 
 the practical order of external relations, when questions are to be decided or nego- 
 tiations conducted, its rank is no longer the same ; in these cases the obligations 
 contracted in the name of conventional law, in virtue of existing treaties, are con- 
 sidered in the first place. If such treaties are lacking, the law of custom estab- 
 lishes the rule ; and when there are neither treaties to invoke nor customs to follow, 
 it is usual to proceed in accordance with what reason establishes as just, and with 
 simple principles of natural Jaw. 
 
 There are other and numerous citations. I shall not, as they are in 
 print before you, take the trouble to pursue them further. It will be 
 seen that Jurists, English, American, and indeed all Jurists concur, 
 not merely in saying that the principles of justice, of morality, of right, 
 are the foundations of the law, but that in international law, which can 
 be no otherwise prescribed, they are the only resort, except when, in 
 the first place, there is a Treaty between the parties which settles the 
 question for them, or, in the second place, there is an established usage 
 or custom that settles it generally. 
 
 But there is a passage from Vattel, which I will ask Mr. Carter 
 kindly to read for me. 
 
 Mr. Carter. — It is his preliminary chapter to the English transla- 
 tion, page 56, Mr. Ohitty's edition, the North American edition of 1844. 
 
 As men are subject to the laws of nature — and as their union in civil society can not 
 have exempted them from the obligation to observe those laws, since by that union 
 they do not cease to be men — the entire nation whose common will is but the result 
 of the united wills of the citizens, remains subject to the laws of nature and is 
 bound to respect them in all her proceedings. And since right arises from obliga- 
 tions, and as we have just observed, the nation possesses also the same rights which 
 nature has conferred upon men in order to enable them to perform their duties. We 
 must therefore apply to nations the rules of the law of nature in order to discover 
 what these obligations are and what their rights. Consequently, the law of nations 
 is originally no other than the law of nature applied to nations. But as the appli- 
 cation of a rule cannot be just and reasonable unless it be made in a manner suit- 
 able to the subject, we are not to imagine the law of nations is precisely and in every 
 case the same as the law of nature, with the difference only of the subjects to which 
 it is applied, so as to allow of our substituting nations for individuals. A state 
 or civil society is a subject very different from an individual of the human race, 
 from which circumstances, pursuant to the law of nature itself, there result in many 
 cases very different obligations and rights, since the same general rule applied to 
 two subjects cannot produce exactly the same decision when the subjects are differ- 
 ent : and a particular rnle which is perfectly just with respect to one subject is not 
 applicable to another subject of a quite different nature. There are many cases, 
 therefore, in which the law of nature does not decide between state and state in the 
 same manner as it could between man and man. We must, therefore know how to 
 accommodate the application of it to different subjects; and it is the art of thus 
 applying it with a precision founded on right reason that renders the law of nations 
 a distinct science. We call that the Necessary Law of Nations which consists in 
 the application of the law of nature to nations. It is necessary, because nations are 
 
42 ORAL ARGUMENT OF HON. EDWARD J. PHELPS. 
 
 absolutely bound to observe it. This law contains the precepts prescribed by the 
 law of nature to states on whom that law is not less obligatory than on individnals. 
 Since States are composed of men, their resolutions are taken by men as the law of 
 nature. It is binding on all men under whatever relations they act. This is the 
 law which Grotius and those who follow him call the internal law of nations, on 
 account of its being obligatory on nations in point of conscience. 
 
 Mr. Phelps. — Without referring to any other authorities of which 
 many are to be found in the printed argument already submitted, I 
 leave it with this citation, which seems to me instructive. It is from 
 the French Code, article 4 of the Civil code. 
 
 A judge who under the pretence that a law is silent, obscure or insufficient refuses 
 to decide a case may be prosecuted as being guilty of a denial of justice. 
 
 It is a wise provision. It answers, Sir, the question you were good 
 enough to put to me yesterday, whether what I have asserted in respect 
 of international law is not equally true of municipal lawj that so long 
 as you are within the domain of municipal law, dealing, for instance, 
 with the question of property — so long as you are asking for that sort 
 of relief the law is accustomed to give, it is enough for you to show 
 that justice requires it, until you are encountered by either a statute 
 or a principle of law that has been settled to the contrary. In other 
 words, to put the proposition in another form, the only way in a Court 
 of Justice, even in municipal law, to answer the man who demands a 
 right that is within the province of law, and satisfies the Court that it 
 is just, is to show that the law has been settled otherwise, upon some 
 ground that restrains the hand of the Court from doing what it other- 
 wise would. 
 
 Now I come back to this case. I hope the time has not been quite 
 wasted in considering this principle, though, as will be apparent from 
 what I have to say, it may not be necessary to invoke it. We return to 
 the subject of the right of these people to prosecute the business that it 
 called pelagic sealing. Of course, if they have not the right to do it, 
 the United States have a right to protect themselves from it. Then 
 arises the question which my learned friends, with the ingenuity that 
 comes to able advocates with long experience, have sought to dispose 
 of by analysis. ''What does the right of the United States stand on?" 
 They are entitled to an answer to that question. We are here on our 
 own territory, dealing with a race of animals that is appurtenant to it; 
 begotten there, born there, reared there, living there seven months in 
 the year, protected from the extermination that has overtaken their 
 species in every other spot on the globe, where they ever inhabited, 
 and which would speedily overtake them here if we were to relax the 
 reins of Government. One year after the United States took possession, 
 that is to say after they acquired title and before the necessary legisla- 
 tion could be had and arrangements made to police these Islands, an 
 enormous number of seals, some 260,000 were destroyed on the Islands 
 by poachers. That fate would overtake them all immediately, if not 
 protected. 
 
 We have built up a valuable industry; we have introduced upon 
 those Islands a civilization, an account of which you will find in the 
 American Case, illustrated by some comparative photographs showing 
 the manner in which the natives used to live and the manner in which 
 they live now, — the Schools, the Churches, the cleanliness, the order, 
 the Christianity that has superseded the old barbarism; and some of 
 them, as I am reminded, have property and deposits in Banks. That 
 is what has been brought about for them, the United States deriving a 
 large revenue, the world getting the benefit of this product, all which 
 
ORAL ARGUMENT OP HON. EDWARD J, PHELPS. 43 
 
 must be lost, if the seal race is to be destroyed. That is our claim ; and 
 it is the claim not of individuals, as I shall have occasion to say more 
 distinctly hereafter, but of the United States Government, whose land 
 and industry and income this is, under whose law and under the super- 
 vision of whose officers this business is carried on. It is a possession 
 that the law will protect; an industry, an interest, a right, that the 
 law of the world protects, unless it is assailed by somebody who has a 
 better right. 
 
 My learned friends go into a fine spun argument. They ask, " what 
 is your property? Is it in the particular seal, that you may follow all 
 over the world? Is it in the herd? Can you have a property in the 
 herd, if you have not a property in every one? What is its exact 
 nature, — how do 3'ou define it?" 
 
 My friends who are so adverse to goingdown to the foundation of things 
 in another part of the case, are very anxious to get to the extreme 
 foundation in this case. What is the remote analysis ? There is not a 
 claim of property in the world but to the mind shallow enough to be 
 open to that sort of influence, can be reduced to the point of ridicule 
 by that process of reasoning. Human rights are not dealt with 'in that 
 ■way, I respectfully submit, in Courts of Justice, or in the estimation of 
 wise men. Our right is derived from all the facts and circumstances 
 of the case. They result in what is properly defined as "property". 
 What is the meaning of theterm "property?" Itisaword of the widest 
 signification — of the most general application ; it ai)plies to every inter- 
 est in every thing that is capable of appropriation and is valuable, 
 which is recognized by law. It may be corporeal ; it may be incorpo- 
 real. It may be capable of manual possession; it may be incapable. It 
 may be a right; nothing but a right. It may be an interest, nothing 
 but an interest. The man who undertakes to define the term "prop- 
 erty", has a long way to go, and many things to consider. I have prop- 
 erty by the law of England, and by the law of one of the States of 
 America — though the general law of America is different — in the light 
 and in the air; I have a right in it, that the law will defend and protect. 
 In the very light and air of Heaven I have a property interest; and 
 my neighbour cannot on his own land, where he has a right to do every- 
 thing that a man may do lawfully, build a wall that shuts them out. I 
 have a right of way across my neighbour's land; perhaps limited to the 
 right to walk over it; perhaps to use it at a particular season of the 
 year only, or for a particular purpose only — limited in a thousand ways, 
 or generally for all purposes. I cannot take possession of the land; 
 I cannot set foot on it for any other purpose, but I may walk over it, or 
 I may walk over it to a particular wood or to a particular ice-pond? Is 
 not that property? I have a claim upon a man for damages for money 
 under a contract. Is it not property? Now when you ask us to define 
 with a remote analysis the precise nature in the last resort of the prop- 
 erty interest that accrues to a nation in wild animals of this sort under 
 just such circumstances as are disclosed in this case, from which a valu- 
 able and civilizing industry has arisen and is carried on for the benefit 
 of the nation, and of the world at large as far as the production is valu- 
 able to human use — when my friends ask us to define for them what 
 that property right or interest is, I have a right to say, with great 
 respect: "Define it yourselves; that is not our business: It is our busi- 
 ness to assert it; to show that by universal law it is recognized and 
 protected, and that it must be recognized and protected unless such 
 product is to perish off the face of the earth," 
 
44 ORAL ARGUMENT OF HON. EDWARD J. PHELPS. 
 
 That is all we have to do. Pursue its analysis for yourselves ; christen 
 it for yourselves if it is necessary. It is a property interest — a property 
 right — extending-, as far as the beueiicial character of it extends, receiv- 
 ing all the protection that it is necessary to receive. I might decline this 
 discussion altogether, but I shall not. I am going to pursue it to some 
 extent lest it be said that we are asserting a right that we are afraid 
 to attempt to analyse. But I premise what I have to say upon that 
 point by the respectful assertion that I am called upon to do no such 
 thing; that the principles of law we contend for are established, are 
 recognized by usage all over the world, under which every property of 
 this sort in the world is held to day, and by the assent of all mankind 
 has been acknowledged and protected everywhere. That is the ground 
 upon which we stand; let those who assail it show that it is a part of 
 the just freedom of the sea that they may come and exterminate this 
 property. 
 
 Now, Sir, let us go a little further. Suppose we consider what this 
 claim of property does exactly stand upon 1 There are some prelimi- 
 nary remarks that should be made about that, as it seems to me. The 
 first isj that the rules of property extend as completely to wild animals 
 under proper circumstances — perhaps I should say valuable wild ani- 
 mals not noxious — as they do to any other property in the world. 
 Where it is said that this kind of property is qualified, it is meant that 
 it is qualified only because it is liable to cease without the act of the 
 owner. 'No right of property except in wild animals ceases without the 
 act of the owner. Its forfeiture to the public law of the country is no 
 exception, because that depends on the owner's act. The property in 
 wild animals of this sort may cease by the animals regaining their -wild 
 state and forsaking their proprietor. That is what is meant, and all 
 that is meant, when it is said that it is "qualified." 
 
 Then a right of property, my learned friend the Attorney General 
 says, must always have its root in municipal law. That is true, in 
 respect to individual property. No man can possibly have any property 
 right or interest of any description that is not given to him by the 
 municipal law under which he lives, or under which the property that 
 he claims is controlled. If he has got it rightly, it is derived under 
 some municipal law — the law of his domicile, the law of the situs, the 
 law of the place of contract. , But how is it with a Governmenf? The 
 Government creates the municipal law; it is not the subject of it, except 
 to the limited extent in which it may deal, as an individual might, when 
 he buys a particular piece of property ; but as a general proposition 
 Government does not derive its title from municipal law — it derives its 
 title from assertion and possession, unless that assertion and posses- 
 sion controverts the rights of some other nation. A Government takes 
 possession ; it asserts that it has a title. That makes a title, unless, in 
 making that assertion, and taking that possession, it infringes the right 
 of another nation. It is upon that, the whole theory of discovery and 
 occupation depends. I may not go into some sea and find an undiscov- 
 ered island, and take possession of it as my property. My Government 
 can, and all the land in the world is held by the governments that 
 possess and control it under just that title — by occupation or discovery, 
 or by succession to those who did occupy and discover. It is assertion 
 and possession, I repeat, that gives a title to a Government, unless it 
 transgresses the rights of others who alone can complain. How came 
 we by the Pribilof islands? Eussia discovered them, occupied them, 
 kept them, and asserted the title to which they had no other claim but 
 
OKAL ARGUMENT OF HON. EDWARD J. PHELPS. 45 
 
 prior discovery, and trausferred it to tlie Uuited States. We stand 
 upon their title. Tlie seals are appurtenant to it, and that Grovern- 
 ment had taken possession and fotinded this industry and set all this 
 machinery in motion, — had sent their cruizers there to protect it, and 
 their agents to carry it on, and to save and preserve animals that would 
 have disapi)eared long before any of us were troubled with legal ques- 
 tions, if it had not been for that interposition. 
 
 There is another suggestion before I come to the precise consideration 
 of this-question of property. Over all wild animals — 1 mean all useful 
 wild animals — every Government has the primary right of control. 
 Not the property; it does not own that. It does in this case, but not 
 always. The Government does not own the partriclge on my land; if 
 it is killed it does not belong to the Government, but the right of com- 
 plete control does, so that the Government has a right to say to me, and 
 does say everywhere to its subjects. You shall not slay the partridge 
 on your own land that is necessary for your food, except at a certain 
 period of the year, in a certain way, under certain restrictions, perhaps 
 by taking out a certain license. It may go further and say. You shall 
 not kill it for a series of years if it is deemed necessary for the general 
 preservation of these animals, which with their capacity to go from one 
 proprietor to another never can be made the absolute property that 
 domestic animals are. The theory of protecting, for the benefit of 
 mankind these animals, is carried so far that every Government assumes 
 without dispute, the primary and prior right of control, even over the 
 owner on whose land the bird or animal is, while it is there. And that 
 is a proposition that is no longer open to any dispute. 
 
 Now, the claim of property, I say again, which is assailed by the 
 pelagic sealer, is a claim by the Government of the United States; and 
 it wUl be seen, I think, before I am through that that may make an 
 important difference — that a Government has certain rights against 
 conduct on the high seas which an individual would not have — that a 
 Government may be entitled to protection in the ownership of such an 
 industry as this, when if it were mine, I might not be. 
 
 Eeturning then to the question of property, let us first regard it in 
 the light of the rules of the municipal law that prevails between indi- 
 viduals where no governmental right is involved. Where a wild ani- 
 mal, valuable to man, is so far restrained — brought under the custody 
 and the control of the proprietor of the land — that it has what has been 
 called the animus revertendi, which brings it constantly back wherever 
 it goes, to the place where it receives protection and care, it becomes 
 the property of the proprietor nntil the animus revertendi is lost. That 
 proposition is not disputed as a general projiosition. The numerous 
 illustrations of it found in the law books are not disputed; they cannot 
 be. All those have been gone over, — the right in the bees, in the swans, 
 in the pigeons, in the deer, and so on — all those cases which have arisen 
 have had the general principle particularly applied to them. There are 
 valuable animals found on a proprietor's land, to which those principles 
 have been held not applicable, and to which I shall allude; but the 
 general principle and the application of it to all those animals that have 
 been the subject of precise legal decision is not disputed. I need not 
 go over that ground again. It need not have been gone over at all; it 
 is very familiar of course to every member of the Court. 
 
 Then what is the dispute? Where are we at issue? You have had 
 on that side from my learned friend Sir Eichard Webster, what Courts 
 always have from him on every question, the very best argument that 
 
46 ORAL ARGUMENT OP HON. EDWARD J. PHELPS. 
 
 can be made. He has addressed himself to it in an exhaustive manner. 
 He saw with perfect acuteness what the point was; and you have the 
 satisfaction of knowing that you have heard every Avord that can be 
 usefully said on that side of the case. So that in dealing with that 
 argument we are dealing with the whole. They admit tlie principle. 
 They admit every illustration which has been established by judicial 
 decision ; but they say it does not apply to the seals. To all these other 
 anim<als, but not to the seals. Is there any law to the contrary? Oh, 
 no. The question never came up as to fur-seals before. The attempted 
 application of that rule to the fur-seal is new. There is no decision on 
 that subject. Then you have to resort to the principle on which those 
 decisions depend ; and my friend has undertaken — and he succeeded so 
 far as anybody can succeed, I am sure — to point out what is the dis- 
 tinction which would include the other animals to Avhich this rule has 
 been applied, and exclude the seals. 
 
 This whole case turns upon that distinction — ujDon that precise point, 
 whether there are differences in the condition of the fur-seal under the 
 circumstances of this case, and the condition of those other animals in 
 respect to which the right of property is not denied. Let us see in the 
 first place exactly what are the facts on which we claim that the seals 
 are within that general rule; and then let us see on what points of dif- 
 ference, if any, it is claimed or may be claimed that they are not within 
 the rule. Let us deal with the subject fairly on both sides. Fairly 
 my learned friend has dealt with it, certainly, and lairly I shall try to 
 deal with it. 
 
 These animals, as I have said, are begotten, born and reared on this 
 land, and have been, since the first knowledge of mankind in respect to 
 them. It is not merely a place to which they can go, as in the case of 
 other animals that have the animus revertendi. It is probably--not 
 certainly, bub probably — the only place. Some land of this description 
 is absolutely indispensable. They are amphibious. They cannot prop- 
 agate or breed or rear their young but upon the land. The young could 
 not be born elsewhere. They could not live if they were born elsewhere 
 than upon the land. For seven months in the year they remain there, — 
 I do not mean every individual of the herd, but from the time the herd 
 begin to arrive until they get through going away is about seven months ; 
 sometimes longer, according to the testimony. They would not go away 
 at all if the winter was mild enough. That seems to be generally agreed. 
 It is the inclemency of the climate — the inclemency of any climate that 
 in the summer affords qualities necessary to their existence and their 
 propagation, that obliges them to move for the winter. There they are 
 submitted so completely to the control of man that there is nothing that 
 can be done to an animal that we could not do to every one of those, if 
 it was of any use. We can shut them up; inclose them; brand them; 
 mark them — we can do anything with them. They are completely 
 within our control. There they derive the protection without which 
 they would cease to exist, through the forbearance, the judicious, intel- 
 ligent forbearance taught by experience. The Eussians did not have 
 it in the first place. They used to kill the seals indiscriminately; but 
 as early as 1847 — perhaps earlier than that, but certainly as early as 
 1847 — they found out that indiscriminate killing meant extermination; 
 that they must save the females ; and then they introduced the practice 
 of selected killing by which only the males of a certain age are taken, 
 and only a certain restricted number; and that has continued down to 
 the i^resent time. 
 
ORAL, ARGUMENT OF HON. EDWARD J. PHELPS. 47 
 
 Those are the circumstances upon which we say that this animal is 
 brought more fully withiu the reasons which are assigned by courts of 
 justice for the establishment of this general rule and the application of 
 it to other animals, than any other animal that has been the subject of 
 judicial consideration. Here is an animal of a high degree of intelli- 
 gence, an animal to whom this land, or some land which is like it, is 
 absolutely essential. The animus revertendi is not only perfect, but it 
 is constant and it is undisturbed. 
 
 Senator Morgan. — Mr. Phelps, in speaking of some other land just 
 like this to which the seal may resort for their summer habitat, is there 
 any evidence In this case to show that any trace has been found else- 
 where in Behring Sea than on these islands that they have ever had 
 such a home? 
 
 Mr. Phelps. — I was about to remark upon that, sir. It is a sugges- 
 tion that comes very naturally to mind in considering this. In all the 
 exhaustive evidence in this case, in all the discoveries of the British 
 Commissioners — and it is pretty safe to assume that anything that can 
 be discovered oq their side they have found, there is not the shadow of 
 a suggestion that a fur-seal in the Behring Sea ever hauled out, as the 
 phrase is, ever went ashore on any spot except the Pribilof Islands and 
 the Commander Islands. I do not speak of the Japan Islands, of course. 
 We are speaking of these waters. Whether if the United States were 
 to plant batteries on the Pribilofs, open iire upon the herd of seals when 
 they came there in the spring, drive them off, and absolutely prevent 
 their landing there — whether they would gather themselves together 
 and seek fresh fields and pastures new somewhere else, is a question 
 that nobody can answer. It is purely and only a matter of conjecture. 
 
 To begin with, there would be no young that year. The young would 
 all perish. There would be no young the next year because no propa- 
 gation could take place. Then what would become of these repelled 
 animals not killed but driven away? No man knows. It is known 
 that they must have some land like this, possessing its qualities, its 
 moisture, its cloud, its particular formation. It is not for me to say 
 that there is not in the world any other such land, except the Com- 
 mander and the Kurile Islands. They have brought, (which I shall 
 allude to in another connection,) the evidence of some conjecture by 
 persons more or less qualified to express conjecture — some of them 
 pretty well qualified, others less so — to show that if we did not care 
 for these animals, if we allowed them to be disturbed, if we interfered 
 with them too much, if they were repelled, they would go to the Com- 
 mander Islands, or they would go somewhere else. Perhaps they 
 would; for they must go somewhere or perish. 
 
 Now, what is the distinction on which it is said by my learned friends 
 that the seals are different trom all these other animals held to be the 
 subject of property ? The law never has been applied to this particular 
 animal, under these particular circumstances. It is a new question, as 
 far as the application is concerned. The principle is as old as Bracton, 
 and Blackstone, and the Koman law. The application of it to this 
 particular animal is new, simply because a case has not occurred before. 
 What is the distinction between them? If the seals flew through the 
 air instead of swimming; if these islands were only a peninsula and 
 they ran as the deer do, would that make a difference? If the bees on 
 the other hand, swam when they went abroad after honey, or the deer 
 flew, would the law be changed? If the wild swans travelled on foot 
 and the wild geese, would the law cease to be what it is now ? Would 
 
48 ORAL ARGUMENT OP HON. EDWARD J. PHELPS. 
 
 courts of justice say, " We protected the bees while they flew, now 
 that they swim they have ceased to be protected. We protected the 
 deer while it ran, now that it flies — that is the end of it," Why you 
 cannot consider that seriously. It does not depend on those differences. 
 Some of these animals fly; some of them run; some of them swim, 
 some of them stay; and they are all under the protection of the prin- 
 ciple of law. 
 
 " Well, but " says my learned friend, " there is not any case in which 
 the animal has not been confined. You have bees; you put them in a 
 hive. You have pigeons; you put them in a dovecote. You haye 
 swans; you put them in an enclosed pond. You have 'deer; you put 
 them in a park," Why? Because that is what the necessities of their 
 life require. That is what is appropriate to them. Is there any diffi- 
 culty in our enclosing these animals after they get there in June? Is 
 there any difllculty in the United States running a fence around the 
 whole, and shutting them in? ISTot the slightest. But you see what 
 would become of the animals. We should have to leave the gate open 
 for them to go out into the sea, or else that would be only another mode 
 of destroying them. Is there any difficulty about putting everyone 
 into an enclosure? It is a mere question of expense. We could build 
 one big enough to hold them all;* or, as I said, we can brand them, 
 ]^ow it is very evident that this distinction will not do. You must 
 find something better than that. If my learned friends axe right in 
 saying that the seals are outside the rule and the other animals are 
 within it, you must find some better reason, "Oh, but" says my 
 learned friend. Sir Eichard, " did you ever find a case of an application 
 of it to the migratory animals," There is a distinction — the migratory 
 animals. What is a migratory animal, pray? It is an animal that 
 goes away and comes back again, is it not? Is there any other defini- 
 tion to the word. Whether he goes once a week or once in three 
 months, or once in six months; whether he stays twenty-four hours or 
 three months or five months; does that touch the principle? If 
 there is no case in the books of a migratory animal, it is because it has 
 not arisen. Have you got a case where it is held that it would not 
 apply to a migratory animal? Do you find in the learned opinions of 
 these judgeswhom we have been reviewing, anything to show that they 
 would not have applied them to the animal, if it had been migratory; 
 anything to show that the reason of the rule, the principle, does not 
 touch the migratory animal? When you say migratory in distinction 
 to an animal that you would say was not migratory, the difference 
 between the seal and the bee, you speak only of the absence being 
 periodical, and longer continued. You do not touch either the certainty 
 of return, the value of the industry, the husbandry on which it is 
 founded, the care and protection that is given — you do not touch any- 
 thing that affects the principle. These animals do not go as far as the 
 carrier pigeon goes. Was it ever heard that you may have property in 
 the tame pigeons that never go more than a mile or two from home ; 
 but the carrier pigeon that crosses the sea and goes to another conti- 
 nent and comes back again, you cannot have any property in him ? Did 
 any judge ever venture upon any such absurdity as that? Then if 
 the distance does not make any difference, does the frequency of the 
 journey make any difference, or does the period of time, so long as the 
 animus revertendi remains complete? The length of absence may be 
 very important evidence indeed on the question whether there is an 
 amimus revertendi; but when that is not questioned, when it cannot be 
 
ORAL ARGUMENT OF HON. EDWARD J. PHELPS. 49 
 
 questioned; when every single fact that gives rise to this rule of law 
 and that enables it to be applied to those animals applies to these, 
 except the distance to which they may go or may not, or the time when 
 they are gone, although their return is absolutely certain and periodic, 
 canyon predicate any difference in the principle? Can you say that 
 the bees, for instance, if it was the habit of the animals to go away in 
 November for 500 miles and come back with an unerring certainty nec- 
 essary to their life to the same control the next April — do you say the 
 rule of law that used to apply to them is gone? If I had a hive of 
 bees. Sir, some newly discovered animal, different from former bees who 
 made their honey in that way, who went to the southern States where 
 the roses bloom in the winter, and came back laden with the material 
 for their honey in April to the home that was necessary to their existence, 
 with an absolute and unerring certainty, I ask whether the property I' 
 have in the ordinary bees in my other hives would be lost in them? 
 
 The Tribunal here adjourned for a short time. 
 
 The President. — Mr. Phelps we are ready to hear you. 
 
 Mr. Phelps. — I think. Sir, I may dismiss the distinction that is sought 
 to be drawn between the seals and the other animals in respect of which 
 Ijroperty is predicted by the Common Law, on the score of seals being 
 migratory. Now says my learned friend, the animus reverlendi does not 
 create property — it only continues it ; it must have another origin besides 
 animus revertendi. Well, if I understand him correctly, I agree with 
 him, I do not say with regard to wild ducks, for instance, that return 
 by their instinct to the water adjoining my property, that ipso facto, 
 and if that were all, that makes them my property. 
 
 If my friend means that there must be based upon this animus rever- 
 tendi or in connection with it such a possession or contact with the ani- 
 mal as enables me to make him the foundation of a useful and valuable 
 industry, then I agree with him. We are riot at issue upon that point. 
 But what is possession ? He says the animal must be confined. What 
 is confinement? Is it anything but the possession, the control, the 
 confinement, which the habits of the animal admit of consistently with 
 his life and his preservation and usefulness? Is not that possession? 
 Many attempts have been made, as all lawyers know, to define the term 
 "possession" as applied to property. None was ever successful. If 
 there is a term that is difficult to define in words, it is the word "pos- 
 session" as applied to property, because the nature of the possession, 
 the character of it, and the means of it, are just as various as the kinds 
 of property that are found in the world. Possession of real estate^- 
 what is it?— One might suppose that there you would be able to state 
 what is possession. But the moment you undertake to define it you 
 find that it depends upon the nature of the land. Is it a house in a 
 city like this, or is it a wild lot upon the mountains? Both are real 
 estate. Both are governed by precisely the same rules of law. To 
 occupy the lot of wild land in the wilderness as I might occupy a 
 house in the city, is impossible. What then is the possession of the 
 wild land? It is such possession as the property admits of. Slight 
 acts of possession — payment of taxes— recording of a survey— going 
 upon the land sometimes — keeping up a supervision. The question 
 that is left to the jury if the title to that land in a suit depends upon 
 possession is: whether this claimant has, during the requisite period of 
 time, exercised such acts of ownership as the property admitted of; 
 very slight perhaps, but still enough to indicate it. Can such a sort of 
 possession as that be regarded as the possession of a house in this city? 
 P S, PT XV 4 
 
50 ORAL ARGUMENT OF HON. EDWARD J. PHELPS. 
 
 Why certainly not. When you come to personal property what is pos- 
 session? Why the possession of a watch, of a diamond, of a bank note, 
 of a coin is one thing, the possession of articles which are moveable, 
 but which canuot be carried about the person, as the contents of a 
 house is another; and so you go on from article to article. Possession 
 is sometimes symbolical. The.4elivery of a key is the delivery of pos- 
 session. The supervision of an agent may be possession. In short the 
 only definition, that is to say the nearest approach to a definition, of 
 the term "possession" that has ever been successfully given in any 
 book that I ever saw, or in any Court whose judgment I ever heard or 
 read, is that it is such occupation or control indicating ownership as 
 the nature of the property admits of, and its usefulness requires. 
 
 I have spoken of possession of the air and light. What is my pos- 
 session of running water? No interest in property is better defined 
 than that — I do not mean navigable water, but small streams — the mill 
 streams that approach or run along past my property — the mill rights, 
 the water privileges as they are called. It is the right to use that water 
 for mechanical purposes; for irrigation; for the use of animals; for 
 any purpose for which water is valuable. The water is not mine. 
 1 cannot do anything with it that destroys the value of it to my 
 neighbour up-stream; I canuot do anything with it that destroys the 
 value of it to my neighbour down stream. Their rights are as good 
 as mine. My right to use must be consistent with their rights to use. 
 I may use it, but I must pass it along unpolluted, so that the use of my 
 neighbour below is as good as mine. So with my neighbour opposite. 
 He has a mill privilege on one side; I have one on the other. I may 
 have two-thirds of it ; I may have the paramount,, he the subordinate use 
 or otherwise. It may be divided in all forms. He may or I may have the 
 right to it for a particular mill, for a particular purpose, and no other. 
 All that is property. When am I in possession of it? When am I in 
 possession of the stream that is running on to the ocean, not a drop of 
 which remains? I am in possession of it when I am employing it in 
 any way that is consistent with its use, and of which the nature of it 
 admits. I am in possession of it when it is turning a water-mill ; I am 
 in possession of it when it is watering my animals. Ifow these illustra- 
 tions make it perfectly apparent that when you talk about "possession 
 and control", you are using a term that is absolutely indefinite, and 
 that must be defined according to the nature of the property. My 
 learned friends cited, as authority, from Pollock and Wright's excel- 
 lent treatise on Possession in the Common Law. I have the passage 
 which they cited. They cite this passage in the printed authorities 
 they have submitted to the Tribunal i)ending the discussion. I am read- 
 ing now from page 231. 
 
 On the same ground trespass or theft cannot at common law be committed of liv- 
 ing animals /ercB naturae unless they are tame or confined. They may he in the park 
 or pond of a person who has the exclusive right to take them, but they are not in 
 his possession unless they are either so confined or so powerless by reason of imma- 
 turity that they can be taken at pleasure with certainty. 
 
 That is copied. In the haste of the preparation of the case my friends 
 omitted to read a little further. 
 
 An animal once tamed or reclaimed may continue in a man's possession although 
 it fly or run abroad at its will, if it is in the habit of returning regularly to a place 
 where it is under his complete control. Such habit is opmmouly called animus 
 revertendi. 
 
 That is what the author meant. But it is not for that I took up the 
 book at this moment — it was on the subject of possession; and perhaps 
 
ORAL ARGUMENT OF HON. EDWARD J. PHELPS. 51 
 
 I shall be excused for reading a few words from Sir Frederick Pollock's 
 admirable chapter on this subject, in which, through a number of pages, 
 he illustrates, with care and accuracy of language, the difficulty of defin- 
 ing this word "possession" and the vast range of applications in which 
 it is dependent upon the nature of property. It will repay any person 
 who desires to investigate this subject, to read this whole chaj)ter. He 
 says, for instance, at page 6 : 
 
 To prevent perpetual equivocation, it is necessary carefully to distinguish between 
 physical and legal possession. We here refer to the former. It does not suppose 
 any law — 
 
 I find I am mistaken in saying this is Sir Frederick Pollock's 
 language. It is quoted by him from Sir B. Perry, who is translating 
 Savigny on possession ; and the language I am reading is not Sir Fred- 
 erick Pollock's, but is quoted and adopted by him; though what I have 
 said quite applies to what he does say in his own words. 
 
 We here refer to the former: it does not suppose any law; it existed before there 
 were laws; it is the possession of the subject itself, whether a thing or the service 
 of a man. Legal possession is altogether the work of the law ; it is the possession of 
 the right over a thing or over the services of man. To have physical possession of a 
 thing is to have a certain relation with that thing, of which, if it please the legis- 
 lator the existence may hold the place of an investitive event, for the purpose of 
 giving commencement to certain rights over that thing. To have legal possession 
 of a thing is already to have certain rights over that thing, whether by reason of 
 physical possession or otherwise. 
 
 It would seem as if this author anticipated what would be claimed 
 some day by eminent counsel on this subject — that possession meant 
 physical confinement, even though it was a physical confinement that 
 destroyed the object of possession. 
 
 I do not read the whole page, but I pass to another passage. 
 
 The idea of possession will be different according to the nature of the subject, 
 according as it respects things or the services of man, or fictitious entities, as 
 parentage, privilege, exemption from services, etc. 
 
 The idea will be different according as it refers to things moveable or immove- 
 able. How many questions are necessary for determining what constitutes a building, 
 a lodging. Must it be factitious, but a natural cavern may serve for a dwelling,^ 
 must it be immoveable? But a coach, in which one dwells in journeying, a ship, 
 are not immoveables? But this land, this building — what is to be done that it may 
 be possessed? Is it actual occupation? Is it the habit of possessing it? Is it 
 facility of possessing without opposition, and in spite of opposition itself. 
 
 Again, this is Sir Frederick Pollock's own language at page 10: 
 
 It has constantly been asked: Is possession a matter of fact or of right? Bentham 
 and others have made the want of a plain answer a reproach to the law. But in 
 truth no simple answer can be given to such a question, for all its terms are complex 
 and need to be analysed. Every legal relation is or may be an affair both of facts 
 and of right : there are not two separate and incommunicable spheres, the one of 
 fact and the other of right. Facts have no importance for the lawyer unless and 
 until they appear to be, directly or indirectly, the conditions of legal results, of 
 rights which can be claimed and of duties which can be enforced. Eights cannot 
 be established or enforced unless and until the existence of the requisite facts is 
 recognized. 
 
 Then at page 12 he says : 
 
 It appears, then, that even at the earliest sta^e we have many things to distin- 
 guish. De facto possession, or detention as it is currently named in continental 
 writings, may be paraphrased as effective occupation or control. Now it is evident 
 that exclusive occupation or control in the sense of a real unqualified power to exclude 
 others, is nowhere to be found. All physical security is finite and qualified. 
 
 Then on page 13 he says : 
 
 To determine what acts will be sufficient in a particular case we must attend to 
 tJie circumstances^ and especially to the nature of tjie thing dealt with, and th^ 
 
52 OEAL ARGUMENT OF HON. EDWARD J. PHELPS. 
 
 manner in wbioli things of tlie same Irind are haljitnally used and enjoyed. We 
 must distinguisli between moveable and immoveable property, between portable 
 objects, and those which exceed the limits of portable mass or bulk. Further, we 
 must attend to the apparent intent with which the acts in question are done. An 
 act which is not done or believed to be done in the exercise or assertion of dominion 
 will not cause the person doing it to be regarded as the de facto exerciser of the 
 powers of use and enjoyment. 
 
 Agaiu, on page 14 he says: 
 
 And in order to ascertain whether acts of alleged occupation, control, or use and 
 enjoyment, are effective as regards a given thing we may have to consider. 
 
 (a) Of what kinds of physical control and use the thing in question is practically 
 capable ; 
 
 (6) With what intention the acts in question were done ; 
 
 (c) Whether the knowledge or intention of any other person was material to their 
 effect, and if so, what that person did know and intend. 
 
 Then on page 6 he says : 
 
 When the fact of control is coupled with a legal claim and right to exercise it In 
 one's own name against the world at large, we have possession in law as well as in 
 fact. 
 
 All that, Sir, is very obvious. It is felicitously stated, but it is not 
 new. It is not new to that class of lawyers who have been accustomed 
 to apply law to human affairs. There are two kinds of law, I may be 
 permitted to say : the law that is practicable and the law that is imprac- 
 ticable — that is visionary — that is theoretical. The one comes out of 
 the closet of the man who has never b^en anywhere else; the other 
 comes from the constant application of the principles of law to the 
 administration of human justice, never separating law from facts, 
 always remembering that law depends upon facts, and their changes, 
 variations, conditions, and circumstances; and that no other rule can 
 be stated, except that when a principle is established, it is in the light 
 of that principle that all questions arising under it are to be considered. 
 
 What then, still having in mind my friends proposition, which as I 
 have said is sound enough if I understand it rightly — if he did not mean 
 to carrj"- it further than I think he did — that there must be something 
 besides the animus revertendi — there must be some possession, control, 
 something practicable, something useful, something entitled to be pro- 
 tected — that annexes itself to the animal. In other words, the animus 
 revertendi is in itself only an evidence of possession. It is evidence or 
 an element, as you please to call it, in this complex question of fact and 
 law, of what is possession. The animus revertendi, in the case of an 
 animal, of this description, is one element — not enough of itself I 
 admit— but a strong element, when it is connected with the recognized 
 control and the recognized usefulness. Now what is that? It is, in the 
 first place, as I have said, a possession that the nature of the property — 
 the nature of the animal (to come to this particular case), admits of. It 
 varies with every different animal. It is different with the Bee, with 
 the Pigeon, with the Deer, with the Swan, and with the Seal ; because 
 what is a useful possession with one is the destruction of the other. 
 And it varies in the next place, with the requisites of the usefulness of 
 the industry, the husbandry, that makes it valuable. 
 
 Now in the cases cited by Mr. Carter of Blades v. Siggs; Bavies v. 
 Powell; and Morgan v. The Earl of Abergavenny — those three cases in 
 respect of deer that were cited in the opening, and which are quoted 
 very largely, if not entirely, in the Appendix, and some parts of the 
 United States' Argument. What took place there? Everybody, that 
 knows anything of the laws of England, knows that the deer, while 
 ferw naturce, is not in itself property. If one buys a deer forest in Scot- 
 land of 20,000 g,cres, the onljr value of it ^s the ^per. Tl^e land is good 
 
ORAL ARGUMENT OP HON. EDWARD J. PHELPS. 53 
 
 for nothing except for the deer. Does he own any particular deer that 
 is on it? Not one. They are here today and gone tomorrow. He can- 
 not say to his neighbour,) "These deer were here last summer; they 
 were probably born on the land; they come back to me, and you must 
 not touch them". The law does not justify such a claim as that. When 
 they go on the neighbour's property, the neighbour has the same right 
 as he has. So far as they give value to the land, they go with the realty ; 
 and, when one buys the soil, he gets the advantage, the privilege of tiie 
 deer frequenting it and the opportunity to take them for sport or profit. 
 
 But when we come to these cases, we find that deer may become 
 property under the same law of England which I have referred to, 
 under which they were not property. Presently we find they are dis- 
 trainable for rent; that is to say, they are specific personal property 
 which may be taken by the landlord by distress for his rent; that they 
 go to the executor and do not go to the heir on the decease of the owner. 
 How comes that to pass? What is the distinction upon which the same 
 Court renders an entirely different judgment in respect of the same 
 animal in one case from what it gives in another? Are these deer con- 
 fined? In one case the range they had was 600 acres, and in the other 
 700 acres. They could not be caught except by hunting them, or shoot- 
 ing them 'with a rifle, at a long distance. The proprietor of the land 
 can no more put his hand upon them than anybody else. They flee 
 from his approach, and it is only by running them down in an open 
 forest that he could get hold of them. 
 
 Then what did make them property ? The animus revertendi alone, 
 say my learned friends, would not do it. I agree to that. It would not 
 have done it in the case of the deer forest in Scotland. Then, what did 
 make them property? Solely and only the fact that the proprietor had 
 established a husbandry; that they were no longer objects of sport, 
 which assumes that they are ferae naturce to begin with, — the object of 
 hunting and shooting, — ^no longer that, but they were made the basis 
 of an actual industry and husbandry, by which their produce was taken 
 by selective killing and sent to the market. Well, but what did he do? 
 He did not shut them up; he did not confine them. He did what the 
 nature of the animal rendered possible, and what the necessity of the 
 industry rendered desirable. That is what he did; and forthwith, under 
 that same intelligent and discriminating law, the animal that was yes- 
 terday ferw naturce is to-day the subject of property, and is personal 
 property with all its incidents, going to the personal representative at 
 death, distrainable for rent, and the subject of an action if anybody 
 interfered with it. 
 
 Now nothing can be plainer, as I respectfully submit, to a mind 
 accustomed not only to deal with legal principles, but to apply them 
 to the vicissitudes and emergencies of human affairs, than that the sub- 
 stantial distinction which renders those wild animals property which 
 were not property before, and may cease to be property afterwards, is 
 that they are taken into possession in connection with the perpetuation 
 of the animus revertendi that brings them back to the spot, taken into 
 such possession as they admit of, and such possession as is necessary. 
 There is the principle. There is no artificial distinction that depends on 
 their means of locomotion or the character of their covering — whether 
 it is fur or feather, whether they fly, run, or swim, whether their ab- 
 sences are periodic or occasional, longer or shorter, regular or irregular. 
 
 It is the operation of the principle under which they are subjected to 
 the control which they admit of and are made the basis of a valuable 
 
54 ORAL ARGUMENT OP HON. EDWARD J. PHELPS. 
 
 industry. And in connection with that, because that standing alone 
 would not be enough, that is to say, would not fipply when the animal 
 was temporarily gone, we have this'constant and certain animus rever- 
 tendi. I cannot found an industry upon wild aninals upon my land 
 that would make them property if they go away according to their 
 nature and do not come back again. My husbandry is not enough, 
 because when the animals are gone they leave us the animus revertendi. 
 On the other hand, if they merely came back by habit and I did nothing 
 to them and made nothing out of them, that would not create -a prop- 
 erty, I must put the two together. I must combine possession and the 
 animus revertendi, and combine it for a useful purpose, and combine it 
 with all the custody that is necessary and all the habits of the animal 
 admit of, whatever they are. 
 
 But, says my learned friend, you must create the animus revertendi. 
 With great respect, what does he mean by that? Create the animus 
 revertendi in an animal? — create an instinct which, so far as the word 
 may be applied to an animal below the scale of humanity, is a mental 
 quality? Suppose you could, how does that differ from the animus 
 revertendi which you perpetuate ? Can that make a difference ? It may 
 exist before your industry begins, and your industry may.be based 
 upon it, but I cannot conceive how it can be created. 
 
 We have the speculations of a number of learned gentlemen gathered 
 together by the British Commissioners on the question which I was 
 discussing this morning — what would become of these seals if they 
 were turned away from the islands in which they have had their home 
 ever since the Creator first looked upon his work? No man can answer 
 that question. Any man can speculate about it with more or less wis- 
 dom. They assemble the speculations of several gentlemen, some of 
 whom admit they have spoken without much thinking, that if you cease 
 to care for the seals, which you do if you allow them to be disturbed or 
 too much interfered with, they will go away and not come back — they will 
 go to the Commander Islands or to the Kurile Islands, where the other 
 seals go, or go somewhere else. As I said this morning, I do not under- 
 take to dispute that, because I can no more dispute it than they can 
 assert it. It is pure conjecture, and it may be true for aught I know. 
 Assume it to be true as these learned naturalists or some of them 
 believe. We are and have been preserving that animus revertendi by the 
 care and the protection they receive there. "What do you do to them," 
 says my learned friend the Attorney General. "You only kill them." 
 Only kill them ! Do not we preserve the whole race from extermina- 
 tion? The cruisers that surround the Islands, the agents and employes 
 who are on the Islands, and the strict rules that are enforced there in so 
 many particulars against their disturbance, and against their injury — 
 does not that protect them? If the seals were capable of having a 
 case stated for the opinion of my learned friend, whether in as much as 
 they are killed there more or less every year, they had not better leave 
 the Pribilof Islands, and find some other place, is there any doubt 
 about the advice they would receive? Their lives are not safe any- 
 where; they are surrounded by all sorts of enemies, human and other- 
 wise; to preserve all their lives is impossible. Would not they be 
 advised that there is no other spot in the world where they would be 
 as well preserved, where their reproduction would be kept so safe, and 
 where so many of them would be spared as there? That a part of 
 their life goes to the service of humanity is a proposition that is true 
 of all created things. There is no place for any creature to go and be 
 safe. There is no life, part of which does not go to the public service. 
 
ORAL ARGUMENT OF HON. EDWARD J. PHELPS. 55 
 
 There is no animal on the earth that has not to contribute, after his 
 measure and according to his place, to the requirements of mankind. 
 That is the law of nature. It would not be for their benefit to attempt 
 to preserve every one ; but they are protected from extermination ; they 
 are protected from cruelty, from wrong, and the proof of that is found 
 in the fact that they do come back year after year, for these hundred 
 years, since mankind took possession of that Island, and have, from 
 year to year, all that time taken the product of this herd. What bet- 
 ter evidence do you want than thaf? They tell us they could defeat it 
 so easily. They bring these philosophers to inform us that if we failed 
 in these duties away would go these animals. Who then creates the 
 animus revertendii I do not say that we created it iu the first place, 
 before the footsteps of man had reached those Islands ; but who has 
 perpetuated it so that instead of forsaking the Islands, as these gen- 
 tlemen tell us they could be so easily induced to do, they have stayed 
 there from that time to this. 
 
 "But they are free-swimmipg animals", says Sir Charles Eussell. 
 Who invented that term, and on what authority does it stand? What 
 does it mean ? Those are questions that I think it would puzzle my 
 learned friend to answer. He uses that as though it constituted an 
 impregnable position. "Free-swimming!" Is there any animal that 
 swims that is not a free swimmer? And what is the difference between 
 a free swimming and a free flying animal and a free running animal, or 
 a free staying animal? There are oysters, that are the subject of 
 property, wild. There are bees; there are deer; there are swans, and 
 there are pigeons. All but the oysters have some mode of locomotion 
 in some element. 
 
 Then they say, you are making grouse and pheasants and partridges 
 property. These animals, these seals, are like the pheasants and the 
 grouse that are raised upon English estates, that is to say protected 
 there, fed there and used. There is an analogy that it is important to 
 observe. Well, let us see. There you have a class of animals who 
 have, to a certain extent, the animus revertendi, and they are not prop- 
 erty. Ko suggestion can better illustrate our proposition, which is 
 that the property depends upon the conditions and the use. 
 
 My learned friend raises pheasants upon his land, as his neighbours 
 do. They are hatched there; they are sheltered to some extent; they 
 are protected, and they go away, the nature of the animal. They 
 go away on somebody else's land, and that somebody else may shoot 
 them; and all my learned friend gets out of raising them is the privi- 
 lege of shooting them on his land at such times as the law allows 
 them to be taken, and in such a manner as the law allows. Because 
 there is no animus revertendi that is capable of apprehension, of proof, 
 of being distinguished. All his neighbours have pheasants over the 
 County in which he lives; they are alike; you cannot tell them apart. 
 That some of them come back is highly probable ; that many do not 
 come back is equally certain, and that many pheasants from other 
 estates come to him is also equally certain. 
 
 Kow applying the principle of law which I have been trying to state 
 to these animals, what is the difficulty that we encounter? The first 
 thing is that there is no certainty and no proof of this animus revertendi. 
 
 The animus revertendi exists in his neighbour's pheasants to return 
 to him, and in Ms to return to them, and they scatter about. The 
 attempt to separate those pheasants and say that my learned friend's 
 were his, and Mr. A's his, and Mr. B's his, all over an English County, 
 is absolutely impossible and equally unjust and unnecessary. If hia 
 
56 ORAL ARGUMENT OP HON. EDWARD J. PHELPS'. 
 
 pheasants go away others come to him. If his neighbour kills some 
 that were hatched on his premises, he kills others that were hatched 
 on his neighbour's premises. 
 
 'Sow let me state a different case. I have a friend not far from my 
 residence who has undertaken to import into America, where the bird 
 does not belong and is not indigenous, English pheasants. He has sent 
 abroad and obtained the eggs of the pheasants from England and on 
 his estate has caused them to be bred. He protects them in the winter 
 without which protection they would perish in that climate. He feeds 
 them and looks after them and nobody else has any English pheasants. 
 It has an animus revertendi of course, because if it did not go back 
 it would perish. How by the law of England if those pheasants are 
 his property when on his land, every one of them being recognizable 
 and capable of proof, brought there by him as well as protected, if 
 wheli they are on my land and with my eyes open to that fact I under- 
 take to kill one, I should like to know by the same law of England if 
 I am not responsible for it? 
 
 No case can be plainer. Why is the same pheasant under the same 
 law property on that man's estate and not property on the estate of 
 my learned friend 1 Simply because the conditions are changed, because 
 in the one case he has a wild bird which without possibility of identifi- 
 cation goes and comes as the other birds go and come. 
 
 Lord Hannen. — As you speak of English law ; I cannot admit that 
 if you give a foreign bird its freedom in your country, you would be 
 entitled to say it is yours wherever it flew, I cannot admit that that is 
 English law. Take a marked example of that. Those who first intro- 
 duced the Himalaya pheasant and the golden pheasant, they turned 
 them out and gave them their freedom, they are subject to the general 
 law applicable to wild pheasants. 
 
 Mr. Phelps. — But if the bird, in the exercise of its own habits, goes 
 abroad and returns again, under the circumstances, it has seemed to 
 me — perhaps because I am more familiar with the law of Vermont than 
 with that of England, that the Court which administered there what 
 we suppose to be the law of England, would hold, in the case of this 
 foreign bird that went abroad temporarily and with a constant animus 
 revertendi to its owner, that there was a right of property that could be 
 protected against wanton destruction. Take it that the estate is on the 
 borders of Lake Champlain, which runs up to Canada, and is public 
 water on which Canadians have a right, under the existing Treaties 
 between the countries. Suppose they come down on Lake Champlain 
 for the purpose of shooting those birds in the breeding time whenever 
 they cross the owner's line, and exterminating the race, is there no pro- 
 tection? I must defer to His Lordship's far better knowledge of the 
 law of England, but I may be permitted to say, under the law of Ver- 
 mont they would be most certainly protected. But the illustration, of 
 course, depends on the view that is taken of that particular case. It is 
 but an illustration, and I do not care at all to insist upon it. 
 
 There is another difference. The law of England in respect to this 
 game has become established. It is assumed by courts of justice as 
 being the established law, and they would spend no time in discussing 
 what the law would or ought to be if it was to be made over anew in a 
 new case. But even in that case they would probably come to the 
 same conclusion in respect to game being the subject of property 
 that they have now, because it would stand upon the same reasons, 
 and the same course of reasoning would conduct to the same result. 
 You have here animals that are quite sui generis, animals that return 
 
ORAL ARGUMENT OP HON. EDWARD J. PHELPS. 57 
 
 because they must return — to whom this place is necessary, who derive 
 no protection or sustenance or advantage from anybody else in the 
 world, who are made the subject of this natural industry and hus- 
 bandry of great value, and the question is not on the right of property, 
 but on the right of extermination — not as against the mere individual 
 owner, but as against the Government to which they belong. 
 
 Now a word or two more and I shall be able to leave this subject. 
 As a concluding remark on this branch of the case, dealing with it thus 
 far upon purely municipal law, is not this the true and sound proposi- 
 tion; that inasmuch as there is a principle of law which includes many 
 animals of different varieties under the term property, and as that 
 principle of law undoubtedly does exclude other animals such as we 
 have been already speaking of as game, which might be property, and 
 since here is a new animal, that is to say, new in this inquiry, and the 
 question is into which class does it fall — within the class of those 
 animals in which property is maintained, or within those in which 
 property is not maintained, that the criterion is to ascertain what is 
 the principle and what are the circumstances that mark the distinction 
 between the two classes of animals. Is not that the just criterion! 
 These seals cannot be put in both categories. They cannot be put into 
 the category of the bees and the deer and swans and pigeons, and at the 
 same time be in the category of the jjheasants and the partridges and 
 the rabbits and English stags. It is the same law that includes one 
 set of animals on the one side and excludes the other. On which side 
 of the line do they fall? If it had ever been determined by authority 
 you could repose upon that. It has not. Is there any other way than 
 to see whether the facts in regard to the seals assimilate them to the 
 animals that are property, or assimilate them to the other. It is not 
 an extension of the law to include them. It is simply an application 
 of the principles of the law. 
 
 In the case of the "Atalanta " in 6 Kobinson's Eeports, which as the 
 Court are aware are the reports of the decisions of that great English 
 Judge, Lord Stowell, sitting in Admiralty, there are a few useful words, 
 as it seems to me, bearing upon this question of the operation of prin- 
 ciples of law uxjon new cases. 
 
 On page 458, Lord Stowell says : 
 
 Under the authority of that decision. . . . 
 
 he is speaking of some Admiralty case; the case itself is not material. 
 It is his language I quote this for. The question was whether a ship 
 was forfeited by a certain business that it had been engaged in, and it 
 had been argued that the ship was not forfeited, only the property — 
 
 I am warranted to hold that it is an act which will aifect the vehicle without any 
 fear of incurring the imputation which is sometimes strangely cast upon this Court 
 that it is guilty of interpolation in the law of nations. If the Court took upon itself 
 to assume principles in themselves novel, it might justly incur such an imputation; 
 but to apply established principles to new cases cannot surely be so considered. 
 All law is resolvable into general principles. The cases which may arise under new 
 combinations of circumstances, leading to an extended application of principles 
 ancient and recognised by just corollary, may be infinite; but so long as the conti- 
 nuity of the original and established principle is preserved pure and unbroken, the 
 practice is not new, nor is it justly chargeable with being an innovation on the 
 ancient law, when in fact the Court does nothing more than apply old principles to 
 new circumstances. If, therefore, the decision the Court has to pronounce in this 
 case stood upon principle alone, I should feel no scruples in resting it upon the just 
 and fair application of the ancient law. 
 
 That is the language of that great Judge when he was sought to be 
 alarmed by the idea that, in dealing with a novel question, he was 
 extending the law. It is the business of Courts of Justice to inform 
 
58 ORAL ARGUMENT OF HON. EDWARD J. PHELPS. 
 
 themselves of princii)les and to extend them to new cases where it is 
 necessary. 
 
 The case of the "Adonis " is another decision of the same Judge. 
 This is in Yolume 5 of 0. Eobinson's Eeports ; and perhaps this deci- 
 sion is more directly appropriate on the point I was discussing this 
 morning, how the law of nations is to be collected in a case where it is 
 not established. 
 
 "This is a case," says he, "in which I have taken some short time to deliberate, 
 being unwilling to press with any degree of unnecessary severity the effect of pre- 
 sumption against this class of cases ; more especially because it is one in which the 
 principles of law, though unquestionably built upon the just rights of war, must 
 be allowed to operate with some hardship on neutral commerce and because it is a 
 class of cases on which the Court has little authority to resort to, but has to collect 
 the law of nations from some suph sources as reason, supported in some slight degree 
 by the practice of nations, may appear to point out." 
 
 I read from page 159. 
 
 There is a passage or two that I may read from the United States 
 Argument, page 172, for convenience. One is quoted from Phillimore's 
 Treatise on International Law. 
 
 Analogy has great influence in the decision of international as well as municipal 
 tribunals; that is to say, the application of the principle of a rule which has been 
 adopted in certain former cases, to govern others of a similar character as yet unde- 
 termined. 
 
 Then from Bowyer's Eeadings, page 88, is cited this line. 
 
 Analogy is the instrument of the progress and development of the law. 
 
 In determining this question there is another consideration which 
 seems to me to be altogether conclusive, in addition to all that I have 
 referred to, as pointing out which class of animals the seal under the 
 circumstances belongs to. There is a reason for all intelligent law. It 
 is founded upon the necessities of hnman affairs, especially in regard to 
 property. Now, with regard to this English game is there any neces- 
 sity at all? I have shown that it is impossible, that it is altogether 
 unfair to undertake to make the specific game that arises on one estate 
 property against everybody else, because it gets as much from other 
 estates as it does from the one that claims it, on which it is born. 
 There is no extermination of the race of pheasants going to take place 
 if such is not the law, and, therefore those wise considerations of the 
 common law of England in respect to game have been found right.' 
 How is it with the seals'? If we have not the right of property the 
 animal perishes off the earth. It is of no use to talk about treaties 
 that we may make. That is a matter not of right, nor of law. If we 
 have no property in this industry, this herd, this business, — call it what 
 you will — that we are in possession of, then the animal is gone, as in 
 every other instance his species, substantially speaking, is gone. Some 
 small remnant on one of those southern islands has been preserved at 
 a late date — by what? By the institution of this very claim and the 
 maintenance of it; but with that insignificant exception they are all 
 gone from the face of the earth. As pointed out by Mr. Carter in his 
 opening, the only means by which they can be preserved for the use 
 of America, for the use of any country, for the use of anybody, is by 
 sustaining the right which we claim. 
 
 My learned friend says, Mr. Carter has dealt with the reasons. Well, 
 as I said this morning in respect to showing that a thing was right, is it 
 any objection to a rule of law that it is shown to be necessary to the 
 existence of the subject of it? If there is not sufficient in and of itself 
 as a matter of positive law to give the principle effect and efficacy, has 
 
ORAL AE6UMENT OF HON. EDWAKD J. PHELPS. 59 
 
 that consideration no weight in determining the question I have been 
 discussing, on which side of the line these animals fall? When it is 
 made apparent that not only their usefulness to mankind but their 
 existence on the earth depend upon the right of the nation in posses- 
 sion of them to preserve them, and as they have preserved them — ^they 
 and their predecessors — for one hundred years, if there is any doubt 
 upon the plain principles of municipal law — when you come to weigh 
 in the balance the reasons on which the law is founded, they settle the 
 question. 
 
 Sir, suppose that the Province of Alaska was a country by itself, poor 
 and barren, and to a certain extent desolate. Suppose instead of being 
 a province of a great nation, which does not need it, it was a country 
 by itself. It would be larger then than many of the independent states 
 in the world; and suppose, what is almost true, if it is not quite true, 
 that the seal industry is all they have, all the provision the Almighty 
 made for the existence of the inhabitants, all the food, the raiment, 
 the commerce, the business, the means to prevent their starving to 
 death ; would the law be any different that applied to this case then, 
 than it is when applied to the case of the United States? Would the 
 principle of law vary in thab case? .Could any intelligent man say, 
 " why, as they have nothing else, they own these animals; but if they 
 had gold and silver and abundant revenue they would not own them?" 
 
 Now, pressed by the difficulty which my friends who have prepared 
 this case on the part of Great Britain felt themselves embarrassed by, 
 they have made an effort to break in, in some small degree, upon tlie 
 facts on which we base this right of possession. They say that all the 
 seals do not come back to the Pribilof Islands. The great bulk of 
 them do; but there are some few that travel over to the Commander 
 Islands. 
 
 Before proceeding to demonstrate, as I can out of this evidence, that 
 there is not one word of truth in that suggestion, nor one'word of evi- 
 dence to support it that does not perish when you expose it to the 
 light — I should like to inquire what difference it would make if it was 
 true? Suppose we were to concede that while the bulk of this army 
 comes back with an extraordinary certainty and pertinacity, yet a few 
 individuals scatter away and wander across the sea and may bring up 
 on the Commander Islands, the only other place besides Japan in the 
 Northern Pacific where any other seals have been known to exist. How 
 far does that affect the case? I have said that our interest did not 
 depend upon the sijecific ownership of every seal, whether each one came 
 back. It depends upon the general interest in the great herd and the 
 industry that is founded upon it. 
 
 If it were conceded that some few of these seals did wander away, 
 and find their way to the Commander Islands, is that a distinction 
 which prevents the application of the general principles of law? The 
 statement of that question carries the answer to it. It is a question 
 that does not survive a distinct statement. Why then shall I take the 
 pains, with the permission of the Tribunal, to show that there is no 
 foundation for it? Because we believe that it is better for the Govern- 
 ment of the United States to be right than to succeed; because I shall 
 not consent that any assertion that has been deliberately made by the 
 United States in this case upon any of these questions shall turn out 
 to be one in which the Government was wrong. This case has not 
 only been ably prepared by my friend who has had that subject in 
 charge. — General Foster; it has in my judgment been conscientiously 
 prepared. There is no assertion that has been made in this case, 
 
60 ORAL ARGUMENT OF HON. EDWARD J. PHELPS. 
 
 whether important or unimportant, that we do not claim completely to 
 have sustained. There is no attempted contradiction of our assertion 
 of any fact that we do not claim is completely overthrown by the evi- 
 dence; and therefore I propose to look into this evidence, from which 
 bits and scraps have been referred to here and there, as tending to show 
 some commingling of these seals, under the idea that perhaps if that 
 were made out the force of the case, arising from their attachment, their 
 appurtenance to this land, would be to some small extent weakened. 
 I may have time for the few moments before the adjournment to illus- 
 trate on the map one or two things. 
 
 There, Sir, are the Pribilof Islands (indicating on map), as you have 
 perceived; and there are the Commander Islands (indicating), 800 
 miles away. Here is the route of the Alaskan seals (indicating) going 
 from the islands in the fall, down through the Aleutian passes (indicat- 
 ing), across where the blue line indicates (indicating), until they come 
 opposite to San Francisco. I do -not know that there is any evidence 
 that they go much lower down. I do not think they do. They then 
 return gradually along in the spring, following the blue line (indicating) 
 around until in June or July they come back again. That is the migra- 
 tion route, in respect to which I shall read something from some of the 
 naturalists ; the regular migration route of these animals excepting only 
 that the old bulls, as they are called, do Qot make this circuit. They 
 remain, I believe, up north as far as Sitka. The black line indicates 
 the route of the old bulls (indicating on map). They are seldom found, 
 as the evidence is, south of Sitka. But there is the route of the others 
 (indicating). 
 
 From the Commander Islands, there is what is shown by the evi- 
 dence, and I believe there is no dispute about it — the British Commis- 
 sioners admit that — to be the migration route of the seals from the 
 Commander Islands (indicating on map) ; far away from that of the 
 American seals, and they return, I suppose, in the same general course 
 (indicating).' There is not much evidence about it. But you see from 
 the geographical construction, that there is not an opportunity, prob- 
 ably, for them to go elsewhere; but atany rate, there is the migration 
 route (indicating). 
 
 Now, what is the suggestion — and it is nothing more than a sugges- 
 tion, as we shall see when we come to analyze this evidence? It is that 
 some of the American seals get out of their migratory route, at some 
 time or other, and find their way across here (indicating on map), for 
 the purpose of getting mixed up with another herd. What for, upon 
 what motive, upon what inducement that is applicable to such animals, 
 or to any animals, nobody even suggests. 
 
 B'ow, here is shown upon the map, indicated between those red lines 
 (indicating) what is called the Eorth Pacific drift current. That sets 
 over from the Japan coast (indicating). It is described by some wit- 
 nesses, whose testimony I shall refer to, as a warmer current, full of 
 food fish, which naturally attracts the seal, both from its temperature 
 and especially from its food. And you see when they come down far 
 enough to strike this current (indicating) — it is not very far below the 
 Aleutian Islands that the current passes — they go with the current of 
 food, and on around here (indicating) until the necessities of nature 
 require them to go away to the north. So that in addition to the reg- 
 ular migratory route, which, as we shall see from the naturalists, is one 
 that the animals never depart from, nor any animals of this class — in 
 addition to that, they strike into the North Pacific drift current, which 
 is the place for their food and the place which at that time of the year, 
 
ORAL ARGUMENT OF HON. EDWABD J. PHELPS. 61 
 
 the winter, gives them the mildness which they come away to obtain, 
 on account of the cold and the ice that surrounds these islands in the 
 winter. 
 
 The President. — Does that drift current run all the year round, or 
 only in certain seasons? 
 
 Senator MoRaAN. — It runs all the year. 
 
 Mr. Phelps. — I think, Sir, it runs all the year round. 
 
 Senator Morgan. — It is like the Gulf Stream in the Atlantic Ocean. 
 
 Mr. Carter. — It is as constant as the Gulf Stream in the Atlantic. 
 
 Mr. Phelps. — ^Yesj T suppose it is. 
 
 Now then, the suggestion is that under those circumstances, at some 
 time, — and I believe their evidence, so far as you may dignify it with 
 the name of evidence tends to show that it is in the fall when they 
 come away from here (indicating) — some of these seals find their way 
 over here (indicating), where they would encounter the migration of 
 the Commander seals south. It is not contended that the Commander 
 Island migration is any later in the year than the migration from 
 the Pribilof Islands. One would suppose it is about the same time. 
 "Whether the evidence states I do not remember. But under those 
 circumstances, after this migration has begun in the fall, the sugges- 
 tion is that they find their way over into this space here (indicating), 
 so that they can be seen to some extent to have been mingled with the 
 seals on the Commander Islands. 
 
 The President.— Perhaps the commingling would come from the 
 other side, from the Commander Islands seals coming into this current? 
 
 Mr. Phelps. — Yes ; I was about to say that iipon any evidence or 
 pretence of evidence, it might as well come from the Commander seals 
 as from these. That is left altogether in doubt. K"ow, that is the 
 theory suggested. 
 
 Senator Morgan. — If you will allow me to inquire, does not the evi- 
 dence in this case show that this great ocean current of warm water 
 that you speak of divides out to the southwest of the Aleutian group, 
 one branch of it going up into the Behring Sea, and keeping that sea 
 open, and the other passing around upon the coast of British Columbia 
 and the United States? 
 
 Mr. Phelps. — That suggestion. Sir, is true, and the maps show it; 
 but the evidence in this case does not show it. Therefore I desire that 
 it should not be put down upon this map, because it is not proved'by 
 the evidence. But it is laid down on the public maps, and I have no 
 doubt that the division of the current that you suggest is true. 
 
 Senator Morgan. — Are not the public maps evidence? 
 
 Mr. Phelps. — I do not know but they are. 
 
 Lord Hannen. — The whole course of the movements of the ocean 
 have been laid down upon charts, and it would be very easy to find one 
 which would show the whole course. 
 
 Mr. Phelps. — There is an atlas that we will bring into court that 
 does show it. 
 
 Senator Morgan. — If you will allow me to suggest in that connec- 
 tion, I think it is stated in this evidence, perhaps without any dissent, 
 that the latest arrivals at the Pribilof Islands are the pup seals. 
 
 Mr. Phelps. — Tes. 
 
 Senator Morgan. — Is not that accounted for by the fact that having 
 very imperfect or short coats of hair or fur, they naturally take a longer 
 route to the south, in order to get to a warmer climate, and therefore 
 they cannot arrive at the seal islands at the same time that the old 
 males, the holluschickie, or the females would: that they have a longer 
 detour necessarily because of the demands of their nature? 
 
62 ORAL ARGUMENT OF HON. EDWARD J. PHELPS. 
 
 Mr. Phelps. — It is a very natural and probable conjecture. I am 
 not aware that there is any evidence in the case that establishes it. It 
 would seem natural that it should be so, and I do not know that there 
 is any other reason given in the evidence why this portion of the herd 
 are later in arriving. At the same time, I have no right to say that the 
 evidence proves that. 
 
 And now, having indicated what the suggestion is that is to be 
 encountered, before alluding to any of the evidence or theories that 
 are said to support it, I will, with the permission of the Tribunal, defer 
 entering upon that evidence at this late moment. 
 
 [The Tribunal then adjourned until Tuesday, June 27, 1893, at 11.30 
 o'cloclc A.M.] 
 
FORTY-FIFTH DAY, JUNE 27™, 1893. 
 
 Mr. Phelps. — On Friday last, Sir, as the Tribunal will remember, 
 in entering upon the assertion in respect to the commingling of the 
 two herds of seals, belonging respectively to the Pribilof and Com- 
 mander Islands, I had begun to point out on the map the routes which 
 they followed; and, in order that whatl am about to say may be intel- 
 ligible, perhaps you will permit nie, for a moment, to refer again to the 
 map. (Eefers to the routes and distances on the map.) 
 
 Now, what is meant by the term " intermingling" ? If it means only 
 the casual intermingling of the seals in the open sea to some small 
 extent, tlien it is manifestly of no importance to the case. If the seals, 
 on leaving the Pribilof Islands, make their circuit and return to the 
 Pribilof Islands again, it is, of course, utterly immaterial whether a 
 few.of them do or do not in that interval pass far enough to the west- 
 ward, or a few of the Commander seals pass far enough to the east- 
 ward so that they are brought together, because they separate again. 
 
 How preposterous it is, I may say in passing, because no motive, — no 
 possible inducement can exist why they should turn about and go 
 against the drift current, forsaking their ordinary migratory route, a 
 long distance to the west or a long distance to the east for the mere 
 pleasure of encountering in the water some scattered seals from the 
 other herd, and then have to make their way back again; — but it is not 
 worth while to stop to refute it because it is of no consequence. 
 
 If on the other hand it is meant to be asserted that any part of the 
 Pribilof Islands seals not only go out into the western sea where they 
 encounter seals from the other side, but go to the Commander Islands 
 and join themselves to another herd, breed on the Commander Islands 
 and forsake the Pribilof — or if it appeared that any portion of the Com- 
 mander seals forsake the herd which they belong to, and come across 
 and join themselves to the Pribilof Island seals, then it would be a 
 fact the materiality of which would of course depend upon its frequency 
 and its extent. 
 
 There is one consideration which is perfectly conclusive against that 
 theory before you enter upon any evidence whatever, except the evi- 
 dence afforded by the map. If it were true, — if it is true to-day, that 
 these seals intermingle to any appreciable extent — then there is every 
 reason to suppose that they have always done so. There is no reason 
 why that should occur now any more than always. If it had always 
 occurred, these two species would long ago have been entirely undis- 
 tinguishable. The cross-breeding that would have taken place if the 
 seals went indifferently to any extent at all to the Islands that belonged 
 to other herds, would long ago have effaced the difference which it is 
 still conceded exists between these seals. They would be no longer dis- 
 tinguishable. It would not be true as I shall have occasion to show 
 from the evidence of the Furriers — every one of them on both sides of 
 the case — that there is a marked and plain difference between the 
 skins which enables an expert to distinguish them from each other. 
 
 63 
 
64 ORAL AEGUMEKT OF HON. EDWAED J. PHELPS. 
 
 It could not be any longer true if for centuries — or numberless centu- 
 ries — we do not know how long— interbreeding had been taking place 
 between the seals. 
 
 Let us look for a moment at this question as it stood upon the testi- 
 mony, up to the time of the filing of the British Counter Case. The 
 American Commissioners speak of this, and as I shall not read very 
 much I may be excused for, reading a few words from what they say at 
 page 323 of the United States Case. 
 
 3. The fur-seals of the Pribilof Islands do not mix with those of the Commander 
 and Kurile Islands at any time of the year. In summer the two herds remain entirely 
 distinct, separated by a water interval of several hundred miles ; and in their winter 
 migrations those from the Pribilof Islands follow the American coast in a south- 
 easterly direction, while those from the Commander and Kurile Islands follow the 
 Siberian and Japan coast in a southwesterly direction, the two herds being separated 
 in winter by a water interval of several thousand miles. This regularity in the 
 movements of the different herds is in obedience to the well-known law that migra- 
 tory animals follow definite routes in migration and return year after year to the same 
 ■places to breed. Were it not for this law there would be no such thing as stability 
 of species, for interbreeding and existence under diverse physiographic conditions 
 would destroy all specific characters. 
 
 The pelage of the Pribilof fur-seals differ so markedly from that of the Commander 
 Islands fur-seals that the two are readily distinguished by experts, and have very 
 different values, the former commanding much higher prices than the latter at the 
 regular London sales. 
 
 Dr. Allen's report, in the first volume of the Appendix to the Case at 
 page 406, is to the same effect. It is a very able and interesting article. 
 He says : 
 
 The Commander Islands herd is evidently distinct and separate from the Pribilof 
 Islands herd. Its home is the Commander group of islands on the western side of 
 Behring sea, and its line of migration is westward and southward along the Asiatic 
 coast. 
 
 To suppose that the two herds mingle, and that the same animal may at one time 
 be a member of one herd, and at another time of the other, is contrary to what is 
 known of the habits of migrating animals in general. Besides while the two herds 
 are classified by naturalists as belonging to one and the same species, namely, the Cal- 
 lorhinus ursinus, they yet present slight physical differences, as in the shape of the 
 body and in the character of the hair and fur, as regards both color and texture, 
 siiiificient not only to enable experts in the fur trade to recognize to which herd a 
 given skin belongs, but sufQoieut to affect its commercial value. As yet, expert 
 naturalists have been unable to make a direct comparison of the two animals, but 
 the differences alleged by furriers, as distinguishing the representatives of the two 
 herds, point to their being separable as subspecies, in other words, as well marked 
 geographic phases, and thus necessarily distinct in habitat and migration. 
 
 Then we go into considerable evidence which I shall not feel justified 
 in detaining the Tribunal to read; but we have examined six British 
 furriers iu London, twelve American scientists aside from the gentle- 
 men from whom I read just now, and one witness, Mr. Morgan, who 
 was a superintendent on the Islands for a long time, and a ship 
 master in those regions for a very long time. The evidence will be 
 found on pages 92 to 98 of the Appendix to the American Argument, 
 in which the testimony is collated. These Avitnesses state the diff'erence 
 between the furs — the animals and the skin; and they state the differ- 
 ences in the price, and they all state that anybody acquainted with the 
 trade can readily and easily distinguish them. 
 
 'Now one further citation, and that is what the British Commissioners 
 have said about it. I shall not be understood, I trust, let me say once 
 for all, as referring to the British Commissioners Eeport as evidence in 
 respect to any question of fact that is in dispute, except so far as I 
 gather from it the admission of the other side. I refer to it as I refer 
 to the statements of a party, and I shall have something to say about 
 that by and by. It is enough to say now that I refer to this book as 
 
ORAL ARGUMENT OP HON. EDWARD J. PHELPS. 65 
 
 the statement of the adverse party, and where it contains any admission 
 that is favourable to us, I have the right to use it as such. Where it 
 contains any other statement, I shall have an opportunity to show before 
 I get through, or rather all the way along whenever I deal with questions 
 of fact, just how far it is reliable as evideuce. If the case had remained 
 where it remained at the beginning of this Counter Case, nothing more 
 would need to have been added, because the British Commissioners, as 
 you will see, admit the whole point for which I have been contending, 
 and coincide generally with the American claim, and with the great 
 body of evidence. 
 They say at section 197 page 32 : 
 
 Respecting the migration-range of the fur-seals wHch resort to the Commander 
 Islands, to Eobhen Island, and in small numbers to several places in the Kurile Islands, 
 as more fully noted in subsequent pages, comparatively little has been recorded ; but 
 the result of inquiries made in various directions, vfhen brought together, are suffi- 
 cient to enable its general character and the area which it covers to be outlined. 
 The deficiency in information for the Asiatic coasts depends on the fact that pelagic 
 sealing, as understood on the coast of America, is there practically unknown, while 
 the people inhabiting the coast and its adjacent islands do not, like the Indians and 
 Aleuts of the opposite side of the North Pacific, naturally venture far to sea for 
 hunting purposes. 
 
 !N"ow I call particular attention to this : 
 
 The facts already cited in connection with the migration of the seals on the east 
 side of the Pacific, show that these animals enter and leave Behring Sea almost 
 entirely by the eastern passes through the Aleutian chain, and that only under excep- 
 tional circumstances, and under stress of weather, are some young seals, while on 
 their way south, driven as far to the west as Atka Island. No large bodies of migrating 
 seals are known to pass near Attn Island, the westernmost of the Aleutians, and no 
 young seals have ever within memory been seen there. These circumstances with 
 others which it is not necessary to detail here, are suificient to demonstrate that the 
 main migration- routes of the seals frequenting the Commander Islands do not touch 
 the Aleutian chain, and there is every reason to believe that although the seals become 
 more or less commingled in Behring Sea during the summer, the migration-routes of 
 the two sides of the North Pacific are essentially distinct. 
 
 I refer now to section 453 of this document on page 80 : 
 
 The inquiries and observations now made, however, enable it to be shown that the 
 fur-seals of the two sides of the North PaciHo belong in the main to practically dis- 
 tinct migration-tracts, both of which are elsewhere traced out and described, and it 
 is believed that while to a certain extent transfers of individual seals or of small 
 groups occur, probably every year, between the Pribilof and Commander tribes, that 
 this is exceptional rather than normal. It is not believed that any voluntary or 
 systematic movement of fur-seals takes place from one group of breeding islands to 
 the other, hut it is probable that a continued harassing of the seals upon one group 
 might result in a, course of years in a corresponding gradual accession to the other 
 group. 
 
 In what I have further to say on this subject, I hope. Sir, that you 
 will bear this language in mind. I will also read 454: 
 
 There is no evidence whatever to show that any considerable branch of the seal tribe 
 which has its winter home oif the coast of British Columbia resorts in summer to the 
 Commander Islands, whether voluntarily or led thither in pursuit of food-fishes, and 
 inquiries along the Aleutian chain show that no regular migration route follows its 
 direction, whether to the north or south of the islands. It is certaiu that the young 
 seals in going southward from the Pribilof Islands only rarely get drifted as far to 
 the westward as the 172nd meridian of west longitude, while Attn Island, on the 173rd 
 meridian east, is never visited by young seals, and therefore lies between the regular 
 autumn migration-routes of the seals going from the Pribylof and Commander Islands 
 respectively. 
 
 If any difference between that and the proposition in regard to these 
 
 seals, which is stated by the American Commissioners, by D"^. Allen, 
 
 and by a considerable number of witnesses I shall allude to hereafter, 
 
 can be perceived, it is a difference that is not perceptible to me. ISTever- 
 
 B S, PT XV 5 
 
66 ORAL ARGUMENT OF HON. EDWARD J. PHELPS. 
 
 tlieless, and this is not the first instance, nor the last, in which different 
 statements on the same subject and on the same point will be found in 
 this document, there is something in section 210 that seems to bear the 
 other way, — that it is not easy to reconcile with that which I have been 
 reading. 
 
 In section 210 it is said : 
 
 In order to arrive at as complete a knowledge as possible of the actual distribution 
 of the fur-seal in Behring Sea, a circular was prepared, in which it was requested 
 that regular seal logs should be kept on the British cruizers, and, through the 
 kindness of the Commander-in-chief on the Pacific Station, communicated to their 
 Commanders. The wort was taken up with enthusiasm by the various officers, and 
 maintained throughout the season. Careful observations of the same kind were also 
 made on our own steamer, the "Danube", and subsequently, through the courtesy 
 of the United States Commissioners, copies of the track-charts, and observations 
 made of seals by the various United States cruizers, were supplied. Information on 
 the same subject was also sought in various other ways, such as by inquiry from the 
 captains and hands of sealing-vessels met in Victoria and Vancouver, and from the 
 inhabitants of various places touched at during the summer. 
 
 Then section 212 page 35 : 
 
 The observations at command for 1891 practically cover pretty thoroughly the 
 period of about two months during which seals are ordinarily taken by pelagic 
 hunters in Behring Sea, extending from the middle of July to the middle of Septem- 
 ber, and they are much more complete for the eastern than for the western part of 
 the Behring Sea. 
 
 On consideration of the material to be dealt with, it was decided that it might 
 be most advantageously divided into two periods of about a month each, the first 
 including all dates from the 15th July to the 15th August, and the second those 
 between the 15th August and the 15th September. All the lines cruized over in the 
 first of these periods were plotted on one set of maps, and those in the second pe- 
 riod on another. The parts of these tracks run over during the night, and in which 
 seals therefore could not well be observed, were indicated on the maps in a differ- 
 ent manner from the day tracks, as far as possible; and with the assistance of the 
 logs, the numbers of seals seen in certain intervals were then entered along the vari- 
 ous routes in a graphic manner. The places in which pelagic sealers had reported 
 seals to be abundant or otherwise, as well as those in which sealing-vessels were 
 found at work by the cruizers, and other facts obtained from various sources, were 
 also indicated on the maps. 
 
 The result of all this is, if you will now have the kindness to turn to 
 page 160 of the British Commissioners' Eeport, that three maps are set 
 forth by these gentlemen. The first is immaterial to my present pur- 
 pose. It only indicates their own cruise; in the second and third maps 
 you will find indicated, in red colour, what they call the resorts and 
 migration routes of the fur-seals in the North Pacific. You will see 
 from that red colour that the resort and habitat (to use a very awkward 
 word) of these animals extend clear across from the American to the 
 Eussian side, a considerable distance to the north and south. It is 
 represented so that the map conveys the idea that the seals are scat- 
 tered all through that body of water in such a manner that, if it was 
 true, it would be totally impossible to assume which seal went to which 
 Island, or whether it made any difference to any seal which Island it 
 went to. The third map extends from July the 15th to August the 16th. 
 The fourth map, which I omitted to refer to, gives the area frequented 
 by fur-seals from August the 16th to September the 15th 1891. 
 
 Looking at that map and looking at nothing else, it would settle the 
 question that there is no particular distinction and that these seals 
 are everywhere intermingled. That is, of course, what the map was 
 intended to convey, and what it does convey untU it is refuted. You 
 will remember the particularity with which it is stated by the British 
 Commissioners that these maps are founded upon the logs of the Brit- 
 ish cruisers and the American cruisers. They are not conjectural; 
 they are not hypothetical, nor suggestive; they are put before you as 
 
ORAL ARGUMENT OF HON. EDWARD J. PHELPS. 67 
 
 the result of actual cruises aud observations recorded in the logs by 
 tie naval Officers of Great Britain and America, undertaken with great 
 enthusiasm by the British Officers, you ■will remember, and undertaken 
 at all events, whether with enthusiasm or not, by the American OfScers. 
 
 Now, would it be credited till a reference is had to the map that we 
 were fortunately able to furnish on this subject, that no one of those 
 cruisers ever was in a position to arrive at any such result, or to fur- 
 nish any information whatever on the subjecf? That these maps with 
 their apparently conclusive results as to the locality of these seals, 
 stated to be founded upon observation of the very best official charac- 
 ter by gentlemen whose qualifications are unquestionable and whose 
 character is above dispute, had no foundation whatever ? That there 
 were no such cruises and no such observations? I shall ask your atten- 
 tion to Maps N"' 1, 2 and 3, in the Portfolio of the American Counter 
 Case; N° 1 shows the cruises of the American vessels, six in number, 
 from July the 15th to August the 15th. You will see how far to the 
 west they went. You will see that they never entered the waters that 
 are concerned by this enquiry. They went to no such place. They not 
 only made no such observations and no such record as would afford a 
 foundation for the British Commissioners' maps, but they never went 
 where they could have made any observations or have known anything 
 upon the subject. 
 
 If yoa will, now kindly look at Map N" 2 of the same Portfolio, you 
 will find the logs of the British Yessels for the same period of time. 
 These' are the gentlemen who entered into the matter with great 
 enthusiasm. I have no doubt they did, as far as they went ; and you will 
 see that not one of them was much west of the 174th degree of longi- 
 tude, between that and 175°, from the Yakutat Pass up to St. Law- 
 rence Island, and, of course, they could not have made any such 
 observations as to the locality of the seals beyond that, as these maps 
 pretend. 
 
 Then, by referring to the third Chart, you will see that the logs and 
 cruises of the two Naval Squadrons, the American and the British, 
 cover the second period and combine the two in one map. For the first 
 period, they are given in separate maps ; for the second period, they 
 are given in the same map, and it gives the courses of six United 
 States vessels and four British vessels. You will see in that chart that 
 they run across once and back again, and on this map, are laid down 
 the seals they saw, without attempting to discriminate between the 
 fur and the hair seals which frequented that region. You will see, 
 from the log, there are almost none at all. The first Chart shows that 
 the ships never were in a place where they could have obtained evi- 
 dence in support of the other map. The second shows that they did 
 once or twice run across there, and, when they did, they did not see any 
 seals. So that their evidence was exactly the other way. 
 
 Now this is exposed in the Counter Case of the United States; and 
 what has the British Government to say about it? Nothing whatever. 
 In the British Counter Case, it is said in substance that the informa- 
 tion referred to seems not to support the map, or some words to that 
 effect. But they neither claim, what of course, no man could claim, 
 that their map derives any support from these charts, nor do they offer 
 any explanation how it came to pass that they were led to construct 
 these elaborate maps, citing no other authority for them than the 
 observation of ships that either never were there at all, or, when they 
 were there, their observations were directly the other way. When this 
 was pointed out in the American Counter Case, when it was shown 
 that the foundation for these maps in the British Commissioners Eeport 
 
68 ORAL ARGUMENT OF HON. EDWARD J. PHELPS. 
 
 had utterly perished; that they were sustained up to that time by no 
 evidence whatever, we then have given us a body of what is called evi- 
 dence of a totally different kind taken in 1892, which I shall allude to 
 in the proper order: I am speaking now of this case as it stood up to 
 the time of the filing of the British Counter Case. After stating what 
 is claimed by the United States, that document goes on to say : 
 
 It is tlien assumed that the only data were those derived from logs of cruizers, and 
 tliose of the British cruizers are reproduced in the form of Charts appended to the 
 United States Counter-Case, together with the tracks of United States cruizers in 
 1892. 
 
 In reply to these contentions, it may he stated the distrihution of seals in Behring 
 Sea in 1891, as shown on the British Commissioners' Maps, in so far as it relates to 
 the part of Behring Sea surrounding the Pribilof Islands, depended chiefly upon the 
 several cruizers. But an inspection of the tracks, as printed by the United States, 
 will show that the cruizers in most cases confined their operations to the regions 
 surrounding the Pribilof Islands. 
 
 Then: 
 
 For other parts of the sea, other sources of information had to be employed. The 
 British Commissioners refer to those other sources (including their own voyages) in 
 a general way. 
 
 I have read the way in which the Biitish Commissioners before 
 referred to this subject, by saying that nothing was known in regard to 
 it that was at all reliable, and that there was nothing to change the 
 inference that these migratory animals followed their ordinary route; 
 and one section that I did not read was that, if the sealers knew other- 
 wise, they kept it to themselves because they desired to keep secret the 
 place where the best sealing was to be found. The way in which they 
 referred to it was to admit that there was no other authority whatever; 
 and because there was no other authority they desired to set on foot 
 these explorations by the ships of the British Government, which the 
 Americans had done for themselves; and, on the strength of those 
 observations, they base these Charts. Is there any explanation? Is 
 there any excuse? Not one word. I have read it all. 
 
 That is the way. Sir, that this question stood when the Counter Case 
 was filed. What is the Counter Case? It is a document by which 
 under the interpretation of this Treaty adopted by Great Britain, and 
 which has been the subject of observation before in the' preliminary 
 argument that you listened to on the admissibility of evidence, the 
 whole body of evidence put in on the part of Great Britain on all ques- 
 tions of fact, except what is found in the British Commissioners' Report, 
 was put in at a period too late to be met or replied to by the United 
 States. 
 
 So that this case presents the extraordinary spectacle, unknown as it 
 seems to me in any Court of Justice before, of a trial upon important 
 issues of fact and very voluminous evidence of every description, includ- 
 ing many new descriptions not known before, put in by one side, none 
 of which the other side has any opportunity to reply to or even to read 
 until it is too late to put in evidence in explanation, impeachment, or 
 contradiction. 
 
 Ifow, in that Counter Case, they return to the charge, and bring for- 
 ward a considerable body of what they regard as proof, and what is 
 proof as far as it goes undoubtedly, — on this question of intermingling. 
 If it had been left where it was left by the parties and the two sets of 
 Commissioners in the first place, it would not have been open to any 
 contradiction, except so far as tlie Maps of the British Commissioners 
 attempt to introduce a contradiction, which I have shown is completely 
 refuted. In the very extraordinary document called the Supplemen- 
 tary Eeport of the British Commissioners which has been received here 
 
ORAL ARGUMENT OP HON. EDWARD J. PHELPS. 69 
 
 as an Argument; it is nothing else, — the Eeport was nothing but an 
 Argument, and this is nothing but a Supplementary Argument, — we 
 are told, at page 23, that, 
 
 " In our previous Report it seems to be necessary," 
 
 — these Gentlemen begin to perceive that it is desirable at any rate, if 
 not necessary, to meet the extraordinary state of facts about these maps 
 by something. 
 
 Mr. Justice Harlan.^-Do you understand that report to have been 
 presented to us as part of the argument of the British Counsel? 
 
 Mr. Phelps. — Eeally, Sir, I do not. I believe there have been one 
 or two feeble references to it, and by feeble I mean of course, brief, 
 because I do not mean that anything which comes from my learned 
 friends could be feeble; — General Foster reminds me that what I am 
 about to read was read by Sir Ei chard Webster. 
 
 Mr. Justice Harlan. — But I understood the part read was objected 
 to at the time. 
 
 Mr. Phelps. — It is not evidence. It is only a statement — it is an 
 apology. 
 
 Mr, Justice Harlan. — I only asked for the purpose of knowing 
 whether we are to look into that report. 
 
 Mr. Phelps. — Not by any means with our consent. Sir. Our position 
 has been stated, and we do not withdraw from it. I only refer to a word 
 or two of apology on this point, which I was about to read, which is'the 
 only reference, perhaps, I shall make to it, and it has been already read 
 by Sir Eichard Webster. 
 
 Mr. Justice Harlan. — I repeat the enquiry that we may know 
 whether we are to look into it. I do not understand that Counsel for 
 the British Government have offered that report as a part of their 
 argument, though entitled to do so. 
 
 Sir Eichard Webster. — I should like the Tribunal to understand 
 that we most certainly have offered that report as part of our argument. 
 There are matters in it which were not referred to — matters of subse- 
 quent depositiotis, which turned out to be common knowledge, but we 
 have not withdrawn. It was originally offered and tendered as part of 
 our argument, and we do not withdraw that now. My learned friends 
 themselves suggested they might refer to other parts, and any part they 
 wish to refer to is open to them, but we have tendered it as part of our 
 argument. 
 
 Mr. Justice Harlan. — I have not so understood. 
 
 The President. — It is understood that the United States do not take 
 that supplementary Eeport as evidence. 
 
 Mr. Phelps. — Of course. 
 
 I shall add one new contribution from that document. 
 
 In our previous Report, as the existence of a certain amount of intermingling has 
 never been questioned — 
 
 Sir Eichard Webster. — It is "had" in the original. 
 
 Mr. Phelps. — My copy is probably a misprint then. It says " has " ; 
 but I will read it "had" 
 
 "had never been questioned". 
 
 That is to say, had never been questioned when they wrote their 
 Eeport. That is no doubt what they mean, whether the word is "has" 
 or "had." 
 
 It was not considered necessary to note in detail the evidence and observations 
 upon which the general statements were based. 
 
70 DEAL ARGUMENT OF HON. EDWARD J. PHELPS, 
 
 Well, what was the general statement — that there was an inter- 
 mingling or nof? What are the observations and statements that it 
 referred to, except the proceedings of these cruisers and a very small 
 suggestion that they had enquired generally of sealers, followed by 
 the paragraph I alluded to just now, pointing out that sealers were very 
 reticent in speaking on the subject. 
 
 Now in 1891, when they were on the Commander Islands, they took 
 the testimony of a native long employed, named Snigeroflf, and John 
 Malowanski acted as interpreter, Mr. Thomas Morgan being present. 
 This is copied from the United States Appendix, vol. 2, page 198: 
 
 Snigeroif testified that lie had lived on the Pribilof Islands for many years and 
 knew the distinctive characteristics of both heards, Commander and Pribilof and 
 their habits, and that he removed from thence to Behring Island. He pointed out 
 that the two heards have several different characteristics and stated that in his belief 
 they do not intermingle. 
 
 That is one statement which these gentlemen have on the Islands; 
 and then Mr. Morgan on page 201 of the same book testifies that — 
 
 Said Commissioners asked said Suigeroff the further question, whether he believed 
 that the Pribilof herd and the Komandorski herd ever mingled, and he replied that 
 he did not. 
 
 We hear of no other statements to the British Commissioners what- 
 ever. 
 
 Ijrow, my learned friends, or whoever had charge of the preparation 
 of the Counter Case, perceiving that to sustain the proposition that 
 these seals were such wild animals that they might be slain at pleasure 
 on the high seas, and that the United States had no right in them, it 
 was necessary to infringe in some way upon the great leading facts 
 which attach the animals to the Islands, select this point, and for the 
 first time they go into a considerable amount of testimony, from two 
 sources; one is from some London furriers, wholesale and retail, prin- 
 cipally retail I should think, of whom they have examined a consider- 
 able number, the other is from a body of sealers, men engaged in the 
 business of sealing. The one refers to the difference between the skins 
 which we had originally proved and which was not at all contradicted by 
 the British Commissioner's Eeport — all the evidence that we had or they 
 had on the subject then was that they were completely distinguishable; 
 the other is from the men who claimed to have seen seals all over the 
 sea from west to east, and at all times intermingling — evidence, of course, 
 to which we had not a chance of reply. 
 
 (Mr. Phelps proceeded to review critically all the evidence on both 
 sides bearing upon the question of the alleged intermingling of the 
 seals of the Pribyloft' Islands with those of the Commander Islands, 
 reading many passages from it, and claimed that so far from any such 
 intermingling being proved, the contrary was completely established. 
 
 He pointed out that the fact had never been claimed in the whole 
 history of seal life until suggested by the British Commissioners in the 
 contradictory passages from their report before considered. That it 
 was denied by witnesses of the highest credit and fullest means of 
 knowledge, both Eussian and American, who had been concerned in 
 the management of the Commander Islands, and of the Pribyloff 
 Islands, and was supported by no witness who had ever had any such 
 experience. 
 
 That no witness was produced who claimed ever to have seen a Com- 
 mander Island seal on the Pribyloff Islands or a Pribyloff Island seal 
 on the Commander Islands. That the only evidence brought forward 
 to prove intermingling was from a body of men employed in the Cana- 
 
ORAL, ARGUMENT OP HON. EDWARD J. PHELPS. tl 
 
 dian sealing vessels wlio swore to having seen seals in various parts of 
 the sea oatside of the migration routes, and at various times. 
 
 That none of this evidence attempted to discriminate between the 
 island or fur seals knd the hair seals which were proved to frequent 
 these waters, and which at a little distance could not be discriminated 
 from the fur seals. 
 
 That these witnesses were swearing ex parte in defence of their own 
 craft; were a class of men whose credit was not to be depended upon, 
 and were brought forward not in the principal but in the counter case, 
 so that the United States had no opportunity whatever to reply to their 
 evidence by testimony. 
 
 That they divided into two classes : those who undertook in their 
 affidavits to state the locations in which they saw the seals referred to, 
 and those who give no locations wliatever but speak of seeing them all 
 over the sea. That those who give locations turn out in every instance 
 to have seen the seals where they should have been, in their proper 
 migratory route as shown on the map. That of these who give no loca- 
 tion, not one testifies that he ever killed a seal in the outside waters he 
 refers to, though engaged in the business of sealing and with the proper 
 outfits. 
 
 That this class of witnesses are completely contradicted by many wit- 
 nesses on both sides of unquestionable character, who made careful 
 observations in crossing these waters at the instance of the British Com- 
 missioners or of those of the United States. That these witnesses 
 include all the captains of the British steamship line running between 
 Vancoover and Japan. They include also the officers of seven vessels 
 of the United States Navy who thoroughly cruised the waters in ques- 
 tion and made charts of their observations which we produced. These 
 charts show the extent of the cruises and the exact number of seals 
 seen and the localities. That the cruises of the British Commissioners 
 themselves as well as those of the American Commissioners are to the 
 same effect. That none of these various witnesses saw any seals out- 
 side of the regular navigation route upon any of these careful and often 
 repeated examinations. 
 
 That the alleged intermingling is demonstrated to be untrue by the 
 great difference that has always existed between the species from the 
 Commander Islands and those from the Pribyloff Islands. A difference 
 described by many dealers and master sealers examined as witnesses, 
 and not denied by any witness, and which is still further shown by 
 the great difference in the price in the London market between the Com- 
 mander Islands and the Pribyloff Islands species which was from 20 to 
 30 per cent in favour of the latter. A difference which could never exist 
 if the seals from the two islands intermingled in their reproduction. 
 That the attempt on the British side to break the force of the evidence of 
 the furriers by reexamining some of them entirely failed. 
 
 Of the six leading furriers in London, through whose hands pass all 
 these skins, and who were examined on the part of the United States 
 and testified to the facts above stated, but three have been re-examined 
 on the part of Great Britain, though they are British subjects, quite 
 accessible in London. To six other furriers who testify on the British 
 side no question is put on this subject, though they must of course 
 have full knowledge in regard to it. 
 
 One of the British witnesses of the largest experience says that the 
 new skins are readily distinguishable, but that the process of dyeing 
 and dressing causes the difference to disappear to a considerable 
 extent. Pour others testify that there are some skins in each catch 
 that are indistinguishable after they are dressed and dyed. 
 
72 ORAL ARGUMENT OF HON. EDWARD J. PHELPS. 
 
 Of some others who state that there are some skins that are undis- 
 tinguishable every one mentions as existing some one or more of the 
 differences stated'by the witnesses who testify on the side of the United 
 States. 
 
 No witness in the case states that he ever bought or sold or heard of 
 there being bought or sold a skin from the Commander Islands for a 
 skin from the Pribyloff Islands, or of any question ever arising among 
 the trade or elsewhere as to which islands a skin belonged to. Nor 
 does any witness deny the great and uniform difference in the prices as 
 above stated. 
 
 Nor is any naturalist called on the part of Great Britain to contra- 
 dict the strong and clear evidence given by the American Commission- 
 ers and other scientists, as well as by practical sealers, showing the 
 difference that exists between these two species, apparent to all who 
 are acquainted with them either scientifically or practically.) 
 
 Mr. Phelps continued : I shall refer briefly to another question which 
 has been made by the British Commissioners but which has not been 
 observed upon by my learned friends on the other side, and therefore I 
 think I have the right to infer that they do not depend upon it and that 
 they agree with me in thinking there is nothing in it. But it has not 
 been specifically withdrawn, the evidence is there, and it may be useful 
 and may throw light on some other things briefly to consider it. Tlie 
 British Commissioners suggest in their Report another theory that is 
 new to the world, — one of the numerous discoveries they have beej] able 
 to make in this case; and that is that the seals have a kind of winter 
 habitat, as they call it, over on the Columbian coast opposite to the 
 British Possessions. Now, what is the importance of that suggestion ? 
 If it were true, what is the u.se of it? It is another proof of the pres- 
 sure they felt themselves under of escaping the overwhelming facts 
 that attach those seals to the Pribilof Islands and the American ter- 
 ritory. That is all there is of this theory. It is that the home of the 
 seals on the Pribilof Islands may be to some extent balanced, or offset, 
 by showing that they are on the British coast in winter. For that 
 theory, which is nothing but a theory and a conjecture, there is not 
 one word of foundation. When you begin with the beginning, with 
 its genesis, in this Eeport and read what they have to say in support 
 of it, and then contrast it with the evidence in the case, it perishes so 
 utterly that I am not surprised that my learned friends do not con- 
 ceive there is anything in it, and, therefore, I can deal with it very 
 briefly. 
 
 (Mr. Phelps proceeded to review the statements on this subject in the 
 British Commissioners' Eeport, and to point out — 
 
 1. That this theory also is original with those gentlemen, finding no 
 warrant in any facts or belief that had ever been known before. 
 
 2. That in the fullest extent to which it is attempted to be stated, the 
 facts would be of no consequence, because it is not pretended that any 
 seal was ever known to go ashore or to reproduce in British Columbia 
 or anywhere else except upon the islands. 
 
 3. That no evidence or proof of any sort is cited in support of it 
 except the reports of vague statements which are not given, and whose 
 authors in most instances are not named, not amounting to the dignity 
 of hearsay, because what is said is not stated, nor by whom nor to 
 whom; that the principal source of them is a witness who is shown 
 by his own testimony and by various evidence in the case to be utterly 
 ignorant on the subject of seal life, and to have advanced and main- 
 tained with equal positiveness several other theories in respect to it 
 
ORAL ARGUMENT OP HON. EDWARD J. PHELPS. 73 
 
 which are now conceded to be entirely without foundation; that he is 
 also shown to be an extreme partisan of the sealers, employed in their 
 behalf, as a writer for the newspapers and general advocate; that his 
 statements show him to be very reckless of what he says; and that 
 finally, when examined as a witness by the United States, he substan- 
 tially takes back what he has said on the subject and'admits that his 
 observations and information liad no just foundation. 
 
 4. That the theory thus suggested is opposed to all the known facts 
 in seal life in regard to their course of migration, and is entirely dis- 
 proved by the evidence.) 
 
 Mr. Phelps continued: There is only one other question of fact 
 which I have to allude to, quite briefly. I have dealt with two partic- 
 ulars in which it was attempted by the British Commissioners to qualify 
 to some extent the great facts we have claimed to be true, and I think 
 I may say, proved to be true, in respect of the resort of the seals to the 
 PribUof Islands. 
 
 The first was the commingling; the second was the winter habitat. 
 There is another attemjit upon which a good deal of testimony has 
 been expended, that is to say, a considerable number of witnesses have 
 been examined, but upon which nothing has been said by my learned 
 friends, though they allude to it as a fact in the Case, and evidently 
 rely upon this evidence, and that is, that impregnation of the seals has 
 taken place to some small extent, or rather may have taken place to 
 some small extent in the water. 
 
 To save time and to avoid going through evidence of that sort, I have 
 put some observations upon it, with references to testimony, upon 
 paper, which, with your permission, I will hand up, and I have given 
 copies to my learned friends. It embodies nothing except what I 
 should say if it was a subject that I cared to discuss at length. There 
 is nothing in it except references to evidence and the heads of sugges- 
 tions that I should have intended to make. 
 
 Sir Chaeles Eussell. — Looking at its subject matter and my learned 
 friend having been good enough to show us a copy of this, we do not 
 object to its being handed in. 
 
 The President. — We quite appreciate the propriety of that measure. 
 
 Mr, Phelps. — I will make only one or two general observations, and 
 leave the rest to the contents of the printed i^aper. In the first place 
 that theory is completely disproved, in my apprehension, by the fact 
 that it contravenes the great dominating fact of this animal's life, which 
 distinguishes it from all other animals that ever were known; and 
 which has been so clearly explained in the evidence that it is not the 
 subject of any dispute. This theory is entirely opposed to that fact, 
 and would render it an absurdity and an impossibility. 
 
 In the next place, the theory is completely disproved by the period 
 of the year in which the young of this animal are produced, and about 
 which there is absolutely no conflict in the evidence. The period of 
 gestation is stated by all witnesses on both sides to be about 12 
 months, — undoubtedly lunar months, which I believe is usual with such 
 animals. The time when the young are produced and born on the Islands 
 is not the subject of dispute. Consequently it is made apparent that 
 impregnation must occur on the Islands. Then when we come to 
 analyse the testimony to the contrary, it absolutely disappears into 
 thin air; there is really nothing of it. • 
 
 l^ow, Sir, that brings me to the end of one principal topic in this case. 
 I have thus far endeavored to consider the title we should have to these 
 sales under the general principles of municipal law, if instead of the 
 United. States Government we were merely a Oorpora^iion, which had 
 
74 ORAL ARGUMENT OF HON. EDWARD J. PHELPS. 
 
 ^ 
 
 become the proprietors of these islands, and stood in tlie same situation 
 that the United States Government now do. I shall proceed on the next 
 hearing to take a larger view of that subject. Thus far I have confined 
 myself to the principles of municipal law, and I have tried to point out 
 that upon the great facts, undispiited except so far as the three minor 
 particulars I have discussed to day are concerned, and not disputed 
 successfully I think I am warranted in saying in those particulars, we 
 have a right of property in this herd of animals where they are situated, 
 and as they are situated ; in view of the husbandry and industry estab- 
 lished in respect of them; in view of the control under which they were 
 brought; and of the animus revertendi, which causes them constantly 
 to return voluntarily to our control. 
 
 My friends enquire : " What have you done?" Theysay: "Youhave 
 done nothing except to kill the animals — you select them for killing". 
 We have, in the first place, by Act of Congress, appropriated, this terri- 
 tory and reserved it, which, otherwise, the Government might occupy 
 for other purposes or might make subject to entry and sale as the lands 
 of the Government of the United States are made, except when reserved 
 for special purposes. By special Act of Congress these islands are con- 
 secrated to the use of these animals. Under the Statutes of the United 
 States, and by the superintendents of the United States, appointed by 
 the Government, and paid by the Government, they are watched over 
 and lorotected from the extermination that would otherwise certainly 
 come to them. The cruisers of the United States surround the islands ; 
 and thus we have founded this valuable husbandry. If we have not 
 confined the seals more closely it is not because we could not do so if 
 we desired, but because it would have been not merely useless, but 
 prejudicial to the animal. 
 
 Here are two classes of animals — wild animals — valuable animals — to 
 one class of which the law annexes property so long as the animus con- 
 tinues, which returns the animal to the possession. The animus rever- 
 tendi is nothing but an element of possession — it takes the place which, 
 in domestic animals, entire confinement takes. It is a mere element. 
 It takes the place of the fence or the wall that would restrain animals 
 who, if so restrained, would perish and lose their usefulness. There are 
 other animals, and the distinction was pointed out the other day, under 
 which the law of England — probably the law of other countries — applies 
 a diiferent rule because the conditions are entirely different. 
 
 Now to which class do these seals belong? What is the distinguish- 
 ing fact on which this legal principle attaches? That is the question. 
 We have seen that the animals are as diverse as they can be. They 
 belong to every species. We have seen that the confinement is as dif- 
 ferent as the animals themselves. What is the principle? It will be 
 found in the English cases that were cited by my associate Mr. Carter 
 in the opening. It is the establishment of the husbandry — the indus- 
 try — which means, in the first place, care, pain«, protection, expenditure 
 of money, on the part of the proprietor, which obtains the product for 
 himself, and for the world, without which the animal would perish. 
 There is the criterion. That the animus revertendi so largely enters 
 into it is because it is so commonly the case that without the animus 
 revertendi it is not subject to any custody that would make it useful — 
 that if you shut it up in the yard or in the building you have destroyed 
 it. It is the husbandry — the industry. 
 
 That is the great leading fact that distinguishes those from the wild 
 deer of Scotlaud or the wild deer of America. It was the husbandry 
 that was founded and maintained by taking such possession as the 
 nature of the animal admitted of j and I respectfully say that there is 
 
ORAL ARGUMENT OF HON. EDWARD J. PHELPS. 75 
 
 no case la the range of the law where those facts have not operated in 
 municipal law, to give a title. There is no such case where a right of 
 property has not been deduced and protected by the law; and when 
 you find on the other hand the cases of the wild game that are put in 
 the other class, you find animals which are the subject of sport, where 
 the animal returning cannot be ideatified, where when he goes on to 
 the neighbour's land, he gets from that neighbour exactly what he gets 
 at home, so that the pheasant or partridge that goes from my estate to 
 the estate of my friend owes nothing more to me than he owes to him. 
 
 Now when you come to apply those considerations to the case of the 
 fur-seal, it will be found that in every respect and particular the case is 
 much stronger than that of any wild animal to which a property was 
 ever attached in any system of law. You see their great intelligence. 
 Tou see that this soil is not merely a casual place which they could 
 exchange for another to-morrow, but is necessary for their existence. 
 You see that this animus revertendi which constitutes a part, and but 
 a part of our possession, is continued and virtually created by the care 
 and protection that they receive; and you see the husbandry which the 
 proprietors — it is the Government in this case — have built up and 
 maintained, without which there would be no such animal for them or 
 for the world. 
 
 If it is convenient for you to stop here. Sir, I will continue my argni- 
 ment to-morrow. 
 
 [The Tribunal thereupon adjourned until Wednesday, the 28th June, 
 1893, at 11.30 a. m.] 
 
FORTY-SIXTH DAY, JUNE 28^", 1893. 
 
 Mr. Phelps. — I have thus far, Sir, as the Tribiinal will have per- 
 ceived, dealt with the question of right in this case as it would have 
 arisen if these islands had been the property not of a Government but 
 of an individual or a corporation. I come now to take a different view, 
 a larger view perhaps, of the question, upon principles that have 
 become a part of international law, in the first place because they are 
 right, in the next place because they are necessary, and finally because 
 they have been adopted by the usage and custom and practice of 
 nations in all parts of the world in respect to all the varieties of prop- 
 erty of this class. And still at the risk of unnecessary repetition, let 
 me recur again to the observation I made in the outset, which I desire 
 to keep constantly in view, and subject to which I hope everything I 
 say upon this subject will be understood. That is, that it is not for the 
 United States to make out a property or a rightj it is for those who 
 propose to continue such conduct as we coniplaiu of, to establish the 
 justification for it; and in establishing that justification, the theoretical 
 analysis is for them, if any is necessary, and not for us. 
 
 On this branch of the case my proposition is this : That where any 
 marine or semi-marine animal, valuable and not inexhaustible, is 
 attached, and becomes appurtenant to, a marine territory, is there 
 made the basis of a valuable industry by the nation to which that terri- 
 tory belongs, is protected by its laws and by its care from the extermi- 
 nation that would otherwise overtake it, so as to give to commerce, and 
 to the world, its product, as well as the profits of the industry to the 
 nation or its subjects, it becomes the property of such nation within 
 the definition of the term "property" which I have once attempted to 
 give, even though its habitat (as it is called) may extend outside of what 
 is known as the three-mile or cannon shot limit, partially, entirely, or 
 temporarily, provided, always that if it is temporary it is accompanied 
 by such an animus revertendi as ensures its return. We claim that this 
 rule is established in the first place on authority, so far as the words of 
 writers of acknowledged authority can be regarded as such. That it is 
 established by principle for the sound reason that it is necessary to 
 the continued existence of any such property; that under its protec- 
 tion all property of that sort that remains in the world has been saved 
 and is held to day ; and that wherever it has been omitted to be asserted, 
 such product has perished. 
 
 In the United States Argument, page 134, there are one or two cita- 
 tions which as they are brief, and express my idea better than I can 
 express it, perhaps you will pardon me for reading. Puffendorf, in his 
 law of Nature and Nations, has this language: 
 
 As for fisMng, though it hath much more abundant subject in the sea than in 
 
 lakes or rivers, yet 'tis manifest that it may in part be exhausted, and that if all 
 
 nations should desire such right and liberty near the coast of any particular country 
 
 76 ' 
 
ORAL ARGUMENT OP HON. EDWARD J. PHELPS. 77 
 
 that country must he very much prejudiced in this respect; especially since 'tis 
 very usual that some particular kind of fish, or perhaps some more precious com- 
 modity, as pearls, coral, amber, or the like, are to be found only in one part of the 
 sea, and that of no considerable extent. In this case there is no reason why the 
 borders should not rather challenge to themselves this happiness of a wealthy shore 
 or sea than those who are seated at a distance from it. 
 
 It is very apparent that this language refers to that portion of the 
 sea which is outside of the territorial line, because inside of that line it 
 has never been questioned that the exclusive right of pursuing any- 
 kind of property to be found in the sea, belongs to the nation. That 
 is not questioned here by my learned friends. 'This language applies 
 to those adjacent seas washing the shores of the nation in which a 
 product of that kind is found, which would be destroyed if it were 
 thrown open to the world without protection, and a title to which may 
 well be asserted by the nation to which it properly belongs. 
 
 Another citation is from Yattel, and perhaps there is no other among 
 the many great authors on the subject of international law whom the 
 world has the benefit of, that is more generally recognized as sound 
 authority. His work, written at a comparatively early date, before 
 most of those now extant, still retains its original authority, and is 
 still quoted, and this very passage is cited by my learned friends in the 
 printed argument on their side. 
 
 The various uses of the sea near the coast render it very susceptible of property. 
 It furnishes fish, shells, pearls, amber, etc. ; now in all these respects its use is not 
 inexhaustible. Wherefore, the nation to whom the coast belongs may appropriate 
 to themselves, and convert to their own profit, an advantage which nature has so 
 placed witliin their reach as to enable them conveniently to take possession of it, 
 in the same manner as they possess themselves of the dominion of the land they 
 inhabit. Who can doubt that the pearl fisheries of Bahrem and Ceylon may law- 
 fully become property? And though, where the catching of fish is the only object, 
 the fishery appears less liable to be exhausted, yet if a nation have on their coasts 
 a particular fishery of a profitable nature, and of which they may become masters, 
 shall not they be permitted to appropriate to themselves that bounteous gift ol^ 
 nature as an appendage to the country ttiey possess, and to reserve to themselves the 
 great advantages which their commerce may thence derive, in case there be a sufS- 
 cient abundance of fish to furnish the neighbouring nations? 
 
 Then citing from another section of the same author, not reading it 
 continuously : 
 
 A nation may appropriate to herself those things of which the free and common 
 use would be prejudicial or dangerous to her. This is a second reason for which 
 governments extend their dominion over the sea along their coasts, as far as they are 
 able to protect their right. 
 
 That passage will be found more frequently quoted by writers on the 
 subject of international law, by jurists and in diplomatic correspond- 
 ence, than any passage that can be found in any other writer, quoted 
 with approbation and never questioned; and what is the purport of if? 
 
 Here again the author is not speaking of the camion shot limit, the 
 three-mile limit — there is no question about that at all; he is speaking of 
 that sort of marine property extending even to fish, in which specific- 
 ally nobody ever claimed a property — an animal that has no animus 
 revertendi, not capable of being shut up until after it is caught, when it 
 dies, which is absolutely free, and carrying the proposition much 
 further than we have any occasion to carry it here. 
 
 The President. — Do not you think he means fishery rather than the 
 fish. 
 
 Mr. Phelps. — Quite so. Sir, I was about to mention that; the right 
 of fishing, not the individual fish. 
 
 The President. — A distinct right of property. 
 
78 ORAL ARGUMENT OF HON. EDWARD J. PHELPS. 
 
 Lord Hannen. — I must beg your pardon, Mr. Phelps, but I confess 
 I have read and understood that passage to refer only to the three-mile 
 limit, because he says : 
 
 A nation may appropriate to herself these things of which the free and common 
 use would be prejudicial or dangerous to her. This is a second reason for which 
 Governments extend their dominion over the sea alongtheir coasts as far as they are 
 able to protect their right. 
 
 I understand that to be a reference to the theory that it is as far as 
 a cannon shot would go. 
 
 Mr. Phelps. — I do not so understand it. 
 
 Marquis Yenosta. — I remember that Yattel, after expressing the 
 consideration you have cited, concludes by adopting the well-known 
 maxim of Bynker shock — terrce dominium finitur uM finitur armorum 
 vis, or, in other words, the rule of the cannon shot. Do you not think 
 that the citation you have read is in connection with that conclusion? 
 It is an elucidation I ask you for. You do not think that these consid- 
 erations have a direct reference to that conclusion. It is the same as 
 the sentiment that Lord Hannen has expressed. 
 
 Mr. Phelps. — I do not. Sir, with great submission, and I think I can 
 show immediately that it is not so. The very illustration Yattel employs 
 in this passage in respect of the pearl fisheries which extend twenty 
 miles into the sea, shows what he is thinking of, and the context of the 
 book shows that he is not merely affirming there the truism of the line 
 of sea over which a nation is authorized for many purposes to extend 
 its territorial dominion : it requires very few words to afflrm that and 
 no reasoning to support it. He is referring to the product, to the article 
 of the industry, not to the precise limit of the sea in which it is con- 
 tained, and I understand his proposition to be that where such a marine 
 product as he refers to, not only the pearl fishery, but fisheries in gen- 
 eral, wbere it is in the adjacent waters, where it appertains to the terri- 
 tory, where it is not inexhaustible and would perish if it were not pro- 
 tected, the property is in the industry, in the fishery, not in the specific 
 animal. By which he does not mean that he could follow that animal off 
 into a distant sea and assert the property over him that he would over a 
 domestic animal — over his horse or his ox, but the property in the 
 industry. 
 
 Sir Charles Etjssell. — May I interpose, if it is not inconvenient 
 to my learned friend? 
 
 Mr. Phelps. — Certainly. 
 
 Sir Charles Etjssell. — I have the book here, and it will be found, 
 with reference to the book, he is dealing with the question of the cir- 
 cumstances under which dominion may be extended. 
 
 There is no question of property; but dominion maybe extended, 
 and he justifies that with relation to the line of defence. He goes on 
 in the very next passage following to show how far this possession may 
 extend; and then he proceeds to justify the extra territorial limit of a 
 certain margin of the sea.. 
 
 Mr. Justice Haelan. — But when he refers to the Fisheries of Ceylon, 
 do you think he means to say that property only within the territorial 
 water, but no property in the fishery outside? 
 
 Sir Charles Eussell.— No; he is then dealing with a different 
 matter altogether, that you may acquire by possession ; and the case 
 he puts is dominion in that spot, in that place, — it is clear from the 
 context. The passages are not together, and they are not in the same 
 connection. 
 
ORAL ARGUMENT OF HON, EDWARD J. PHELPS. 79 
 
 Mr. Phelps. — They are succeeding sections. 
 
 Sir Charles Etjssell. — He is showing how far this possession may 
 extend; and then he proceeds to discuss the limits referring to the old 
 ideas of extended jurisdiction. In that paragraph 289, he refers to the 
 limitation of cannon shot. 
 
 Senator Mor&an. — Sir Charles, as to the property outside the three- 
 mile limit, I understand you to insist that the author refers to the 
 doctrine of acquisition by xJrescription ? 
 
 Sir Charles Eussell. — Partly that, I do not say wholly that, but 
 possession. 
 
 Mr. Phelps. — I am very much obliged to my learned friend for 
 reminding me of what had escaped me for the moment. There is 
 another passage from this author to be cited in another part of my 
 argument which shows that my construction of his language is right. 
 It does not depend merely on the illustration he employs, which shows 
 very plainly that he is not proceeding on the ground of a three-mile 
 limit. Within the three-mile line, anything that can be taken out of 
 the water belongs exclusively to the nation ; nobody denies that. 
 
 Sir Charles Etjssell. — Well, we do not admit that in that sense at 
 all. We say that there is the exclusive right to take it, not that the 
 property belongs to the nation. 
 
 Mr. Phelps. — The exclusive right, if my learned friend likes that 
 expression better, and it is, perhaps, the more correct expression, within 
 the three mile limit of a nation to take out of the sea anything that is 
 worth taking, no matter what it is, is just as complete as its exclusive 
 right to take similar property on its soil. I take it there is no question 
 about that. What, then, is the necessity for this eminent author going 
 further than that in the assertion he makes about these rights 1 When 
 he has said that within the territorial limit the right is exclusive, he 
 has said everything. He does not say that at all. He says that nations 
 may challenge to themselves the right to appropriate property of this 
 kind which, as he says, appertains (if I give his words correctly), and 
 that their right becomes as extensive as the necessities of the husbandry 
 of this marine or semi-marine product; and, as I shall show, that is the 
 usage that has obtained everywhere, without it, this would be nonsense. 
 
 If you write in to what Vattel has said there, the limitation "provided 
 always that this product or fishery, or whatever it may be, can be 
 availed of within three miles of the coast," he has only afiSrmed in all 
 this language what nobody at all denies, and what might be stated, if 
 he had occasion to state it, in a single line. 
 
 Sir Charles Eussell. — He is writing at the end of the last century, 
 in 1797. 
 
 Mr. Phelps. — ^We were aware of the date of Yattel's writing, and I 
 presume the Tribunal were. If my learned friend means to assert that 
 Vattel does not support my view, that is one thing. If he asserts that 
 Vattel is not authority, that is another thing. 
 
 Sir Charles Eussell. — No, I referred to the date, because the limi- 
 tation of the territorial jurisdiction was not then fixed as it is now. 
 
 Mr. Phelps. — It was iSxed and there was the same limitation that 
 now prevails. 
 
 Senator Morgan. — And it is not fixed now. 
 
 Mr. Phelps. — l«ro as I shall show presently by the English decisions, 
 but we must take one thing at a time. 
 
 If it be said that Vattel wrote too early to be authority, that will dis- 
 pose of this citation; that is a point on which I have nothing to say. 
 
80 ORAL ARGUMENT OF HON. EDWARD J. PHELPS. 
 
 If it be that he, in using this language, meant only to assert that the 
 exclusive right to take property out of the sea, within the limit assigned 
 to the territorial jurisdiction, was enjoyed, then I say, with very great 
 respect, his language is completely misunderstood. Another section, 
 which will be found on page 148 of the United States Argument, shows 
 that plainly enough. That is section 289 which is the section immedi- 
 ately following the two from which I have read. Those I have read 
 are sections 287, a part of 288, and this is 289, or an extract from it. 
 
 It is not easy to determine to what distance the nation may extend its rights over 
 the sea by which it is surrounded. . . . Each state may on this head make what 
 regulation it pleases so far as respects the transactions of the citizens with each 
 other, or their concerns with the sovereign ; hut, hetween nation and nation, all that 
 can reasonably be said is that in general the dominion of the state over the neigh- 
 bouring seas extends as far as her safety renders it necessary, and her power is able 
 to assert it. 
 
 And in that connection I should like to read what Chancellor Kent 
 says. 
 
 Sir Charles Eussbll. — But then Vattel goes on to say in the same 
 passage that he refers to the cannon-shot. 
 
 Mr. Phelps. — If you will give me the book I will read it. 
 
 Sir Charles Eussell. — No, I beg your pardon for interrupting you. 
 
 Mr. Phelps. — It is no embarrassment, and I will read anything that 
 is desired. 
 
 Sir Charles Eussbll. — No, I do not wish that. 
 
 Mr. Phelps. — I regret that I read these citations from copies, with- 
 out bringing in the volume, as I might have done, but if there is any- 
 thing further I will recui' to this subject again. 
 
 Chancellor Kent says in his First Commentaries, at page 29. 
 
 It is difiScult to draw any precise or determinate conclusion amidst the variety of 
 opinions as to the distance to which a state may lawfully extend its exclusive 
 dominion over the sea ad.ioining its territories and beyond those portions of the sea 
 which are embraced by harbours, gulfs, bays, and estuaries, and over which its juris- 
 diction unquestionably extends. All that can reasonably be asserted is, that the 
 dominion of the sovereign of the shore over the contiguous sea extends as far as is 
 requisite for its safety and for some lawful end. 
 
 It is pretty clear that Chancellor Kent is not talking about the three- 
 mile limit there, because the very question he is discussing is, how far 
 beyond the territorial dominion may a nation extend its powers; and 
 he answers that question by saying, ove rthe contiguous sea, the sea 
 that washes its coast, as far as is requisite for its safety and for some 
 lawful end. 
 
 And he says in another connexion on page 31 : 
 
 And states may exercise a more qualified jurisdiction over the seas near their coast 
 for more than the three (or five) mile limit for fiscal and defensive purposes. Both 
 Great Britain and the United States have prohibited the transhipment within four 
 leagaes of their coast of foreign goods without payment of duties. 
 
 I shall come to that subject later on. I only refer to it here in con- 
 nexion with what Vattel has said; and I respectfully insist that both 
 these authors, Puffendorf and Vattel intend to assert and do assert the 
 right of the nation to extend its dominion over property of that sort 
 attached to its territory, which is made the basis of an important indus- 
 try, just as far into the contiguous sea as is necessary to iwotect it; 
 and whether that falls outside of the three-mile line, whether indeed, as 
 in the case of the pearl fishery, it all falls outside of the three-mile line 
 or whether it is property that is part of the time within the three-mile 
 
ORAL ARGUMENT OP HON. EDWARD J. PHELPS. 81 
 
 line and part of the time without, it all comes in under the general prin- 
 ciple, the necessary principle, without which I have said there would 
 be no such property to quarrel over. As my friend suggests to me, both 
 writers make a cardinal condition of the exhaustibility of this product, 
 distinguishing such a product as this from those general fisheries that 
 are, as far as we know, practically inexhaustible. 
 
 Then there is a passage from Yalin, a French writer, which is cited 
 at page 188, which may usefully enough be referred to in this connec- 
 tion, though it is quoted for another purpose. When we come to dis- 
 cuss the question of the JSTewfoundland Fisheries that have been spoken 
 of before in this argument, it will be seen that this passage from Vattel 
 was quoted in that discussion as giving to Great Britain the exclusive 
 control over those fisheries, extending very, very far out into the ocean 
 in all directions from the coast. It is in that connection that this from 
 Valin. is quoted. 
 
 As to the right of fishing upon the hank of Newfoundland, as that island which 
 is as it were the seat of this fishery then belonged to France, it was so held by the 
 French that other nations could naturally fish there only by virtue of the treaties. 
 
 How far out that was we shall see when I come to deal with the 
 subject. 
 
 This has since changed by means of the cession of the island of Newfoundland 
 made to the English by the treaty of Utrecht; but Louis XIV, at the time of that 
 cession, made an express reservation of the right of fishing upon the bank of New- 
 foundland, in favor of the French as before. 
 
 It will be seen, as the context, I think, is read from this book, from 
 the construction that has been put upon this many times when it has 
 been cited in similar controversies, that Vattel never has been under- 
 stood as merely assuming that the nation had a certain territorial 
 jurisdiction outside of the land, which nobody denies, but he asserts 
 that irrespective of that it may exercise a control over this sort of 
 product under those conditions and under thosfe circumstances. 
 
 Now is there any authority the other way? Have my learned friends 
 in the exhaustive and very able argument of this case, both in writing 
 and orally, which the Tribunal have had the advantage of hearing, 
 produced anything on the other side? Is there some writer on inter- 
 national law who has declared somewhere, that this right does not 
 exist? Is there any writer or any Court to be found to assert that in prop- 
 erty situate like this to which Yattel refers, the right of x^rotection 
 terminates at three miles or at a cannon shot or at any other specified 
 distance? Why yes, there are jurists who have had the high honour 
 of being cited by the distinguished counsel of a great nation; there is 
 a man who writes for a newspaper in America, who is brought forward 
 as a jurist, who has been a steadfast volunteer champion to the extent 
 of his capacity, of the British side of the case from the beginning, on 
 every single point that has been discussed. He is an authority for my 
 learned friends, not only on this important point of international law, 
 but on every other question that has been proposed in the course of this 
 dispute. What his motives are may be conjectured. I do not know 
 anything about them, and I do not know anything about him. He is 
 not a lawyer, and who aud what he is, and whether his name is a nom 
 deplume or not, I do not know. 
 
 There was a very celebrated English Judge who, in one of his judg- 
 ments, declared that reading and writing came by nature; if he had 
 lived a little later he might have added international law to the cate- 
 
 B S, PT XV 6 
 
82 ORAL ARGUMENT OP HON. EDWARD J. PHELPS. 
 
 gory. That is a subject on which a great many people are able to 
 enlighten the world, without having had the advantage of any previous 
 education. Problems that occasion grave difficulties to great lawyers 
 and judges, they are able to dispose of in a very short time. Then 
 there is another young gentleman who has written an argument and 
 printed it to the same effect. I have not the pleasure of knowing him. 
 These productions are about as much authority, I was going to say, 
 though they are really far less authority than the arguments of my 
 learned friends; the difference being that the arguments of my learned 
 friends come from gentlemen eminently qualified to make them, instead 
 of from those who are not qualified at all. 
 
 Then it is said that my friend. President Angell, of the University 
 of Michigan, a gentleman of very high standing, in a magazine article 
 has said that we have no such right. President Angell is not a law- 
 yer, and has had no opportunity to see the United States Case, or to 
 know on what ground we put it, or what the facts are. I should be 
 very willing, with those additional advantages, to submit this Case to 
 his judgment. He would frankly say probably, if he were enquired of, 
 that this was a casual, superficial expression upon a subject he had not 
 examined, with which he was not familiar, and in which he had assumed 
 as true what had been so largely claimed on the part of Canada at 
 least, if not of Great Britain. If we were going into pamphlet litera- 
 ture on this subject, I would rather commend an Article that has more 
 recently appeared from Mr. Tracy, a very eminent lawyer, in the 
 "North American Eeview", which I have seen since I came here; and 
 an Article by Mr. Slater, one of the most eminent of British Naturalists, 
 in the " Nineteenth Century", which came out pending my learned 
 friends' argument on the other side. If these are the sources to which 
 we are to go, I think the weight of the magazine literature will be 
 found to be as much against my learned friends as authorities of a 
 higher chavacter. With those exceptions, if we have misread Vattel 
 and Puffendorf, no other writer is produced to show it; no writer who 
 has put a different construction on those passages; no writer who has 
 affirmed the rule of law to be different from what we affirm it- to be 
 here. It is to such sources as that that my learned friends have to go 
 for what is called authority. 
 
 Now, it cannot be, at this age of the world, that in respect of prop- 
 erty of this kind contained in many seas, on many shores, the question 
 of the legal right of the nation to which it appertains to enjoy and 
 protect it can be new. It may be new as applied to the seals, or it 
 may not. It cannot be new in the sense in which Yattel and Puffen- 
 dorf discussed it. It can be found out one way or the other, and if we 
 are wrong, certainly the learning and diligence of my learned friends 
 must be able to show it. 
 
 As I remarked the other day, the title of a nation comes by pos- 
 session and assertion, where that possession and assertion does not 
 controvert a right of another nation, or any established principle of 
 international law that is founded upon the rights of another nation. 
 It is possession, and assertion, in every case, as will be seen when we 
 refer again to the cases presented to you in the opening, that the title 
 of the nation stands on. They required no conveyance from anybody. 
 They made no treaty with anybody. In every case they stretched out 
 the hand of the national power and took possession of the adjacent 
 product, and proceeded to husband it and improve it, and to give the 
 world as well as themselves the benefit of it. If any nation had a 
 
ORAL ARGUMENT OF HON. EDWARD J. PHELPS. 83 
 
 better right, that step on the part of the nation that appropriated it 
 would have been open to question, and would have been made the sub- 
 ject of controversy. If they had appropriated what belonged to some- 
 body else, their appropriation would have been open to challenge, and 
 would have been challenged. If, on the other hand, they had appro- 
 priated only that which was the common property of all mankind, still 
 more would their appropriation have been successfully resisted aiid 
 challenged by those who had an interest in doing it, who desired to 
 avail themselves of their right to participate. When the United States, 
 therefore, in appropriating this territory to the protection of the seals 
 and in founding this industry upon it, have so taken possession of it 
 and asserted the title on which the existence of this herd depends, the 
 question is, what right of mankind have they invaded? It can only 
 be the right of mankind to exterminate that race of animals, because 
 they cannot participate in it on the sea without doing so. If it were 
 possible for the rest of the world to come and avail themselves of what 
 is called pelagic sealing of this herd and not exterminate it, then the 
 argument of the other side would have the advantage of being placed 
 not upon the right of extermination, but upon a right of participation 
 in what they say is open to all the world. But that is impossible, as 
 I shall show more clearly when I come to deal with the evidence. 
 
 When the United States stretches out its arm and takes possession 
 of this ijroperty, this herd or this interest — which appertains to their 
 territory, is produced there and would perish there — takes care of it 
 and protects it and founds this industry upon it, and asserts its title, 
 then when the individuals who challenge that come forward and say 
 we are assuming a title to what belongs to the world, and are shutting 
 them out from a participation in what as a part of the freedom of tho 
 sea belongs to all mankind; I say, "What is it you propose to do? — 
 what do you want to do? We want to take these seals, indiscrimi- 
 nately in the water. Can you distinguish between sexes'? ifo. Do you 
 attempt to distinguish? 'So, because it would be of no use." What 
 is the result of that? The result would be that before iive years the 
 seals would have perished off the earth. Now upon the proposition of 
 my learned friend, international law is on that side. International 
 law provides by a principle founded upon wrong and not upon right, 
 enunciated nowhere, by no writer, applied in no other instance that we 
 hear of in the history of the world — international law, this subtle 
 essence that only exists for mischief and can be traced to no founda- 
 tion of right, steps in now and says we cannot assert our right to this 
 property on the part of the United States Government. It is the right 
 of mankind to exterminate it, and therefore, if there is a little knot of 
 adventurers anywhere, who desire to embark in that business, the 
 Government must retire and extermination must take place. 
 
 I say that stands upon no authority; it is justified by no writing in 
 any book that would receive a moment's attention by lawyer or judge. 
 It is justified by no practice that ever prevailed; but is contradicted 
 by all practice that ever was known ; it rests upon nothing, — upon no 
 reason that can be stated. My learned friend criticised my associate, 
 Mr. Carter, for saying that the right of the Government to avail itself 
 of this industry depends upon the fact that they could so administer it 
 as to preserve it for mankind, at the same time giving mankind and 
 themselves the benefit of the product. That surprised my learned 
 IMends. Their capacity for surprise is large; and I have noticed some- 
 times that their surprise at propositions advanced, was in the direct 
 
84 ORAL ARGUMENT OP HON. EDWARD J. PHELPS. 
 
 ratio of their inability to answer them. When a proposition is stated 
 that cannot be answered, my learned friends say, "Are we to regard 
 that as serious? Do you mean to persist in it aiter you have been 
 informed in the British Counter Case that it is wrong?" Well, when 
 they are apprised that we should venture to persist in it till we heard 
 the answerto it, that occasions reiterated and additional surprise. Now, 
 if you do not like ray brother Carter's reason, if that is not sufficient, 
 what is the reason on which this case must be determined? On what 
 ground does your proposition stand? Here are two propositions that 
 are directly opposed to each other; one of them must stand to the 
 exclusion of the other. 
 
 The proposition on our side is that the nation to which such a prop- 
 erty appertains, where it belongs, and is produced, which can alone 
 administer it, and which has at labour and expense and through a long 
 period of time established that industry, has a right to it by the prin- 
 ciples of international law. — Their proposition is that it belongs to such 
 portions of mankind, — 1083 people, I believe my brother Eobinson says 
 constitute mankind in this case, — that it belongs to such portion of 
 mankind as want to use this property in a way that is certain extermi- 
 nation. 
 
 Now, there is where we are at issue exactly. When we ask our 
 learned friends : has this been established by authority, so that we are 
 too late in setting forth our proposition? We are referred only to one 
 or two newspaper writers. When we ask for the practice and usage, 
 which, in another part of this case, we are told by my learned friend 
 constitute international law and is indispensable to it, you find the 
 practice of the whole world is the other way. In every case, when we 
 get down to fundamental principles and ask for the right on which it 
 stands, what have they to say? Sir, I respectfully say, as I said in the 
 outset, the statement of this proposition either to a legal mind or to a 
 mind possessed of any sense of justice, is its argument; — there is noth- 
 ing to add to its statement; the answer to it may be demanded, and 
 until that answer is forthcoming surely there is nothing more to be 
 said. 
 
 I do not propose in the review I am about to make, somewhat rap- 
 idly, of the various instances, — all the instances in the history of the 
 world that we know anything about property similarly situated, — to 
 spend a great deal of time, because this has been presented by my 
 associate In the opening, and it certainly is not necessary for me to 
 repeat what has been already said at the risk of not repeating it as 
 well; but I want to review them iii order to give point to what I 
 have said in respect to the argument on the other side, and in respect 
 to the practical application to these principles. 
 
 The first one is that of the Ceylon Pearl Fisheries. They extend 
 from 6 to 21 miles from the shore, oi^tside entirely of any jurisdictional 
 line. There is not an oyster, as far as I understand, within 6 miles of 
 the shore. By various Statutes, and most just and proper Statutes, 
 throughout a very long period of time (I will not undertake to say how 
 long,) but it is said in the British Argument "from time immemorial," 
 and I presume that expression is correct, these Fisheries have been reg- 
 ulated and protected, and exclusively enjoyed under the British Gov- 
 ernment or its Colonies. Not a pearl-oyster was ever ta.ken there, so 
 far as we have any reason to believe, by any man, except subject to 
 those Eegulatious, — and not an instance has been produced of any 
 ship or any individual ever attempting to interfere with them. 
 
OEAL ARGUMENT OF HON. EDWAKt) J. PHELPS. 85 
 
 ITow let me suppose that some sliarp American should fit out a fish- 
 ing fleet, and go there in pursuance of the rights of mankind, and 
 begin taking up those oysters in defiance of the regulations by which 
 alone they are protected from extermination — in defiance of laws which 
 prevent British subjects at least from interfering with them in a man- 
 ner that is not consistent with their protection. The commander of this 
 expedition is asked: "What are you proposing to do here"? " We are 
 proposing to take up pearl oysters and we have come out to make a 
 profit ". Take them up — how 1 " Why as we get them ". "At any par- 
 ticular time"? "No, at any time". "In any particular way"? "No, in 
 any way we can get them". "Are you aware that that would result in 
 the speedy destruction of the whole product"? "Well we do not care 
 anything about that. Let the ladies go without their pearls. What 
 consequence is it if they are exterminated? It is a small matter. And 
 any how, I am here on the part of mankind : you have no control over 
 the high sea; we are exercising the right of fishing on the high seas 
 free to all mankind". 
 
 What does anybody suppose would take place? — That Great Britain 
 would stand back and bow in deference to those rights of mankind and 
 permit that fishery to be exterminated? Will any man say that a 
 Government ought to do so? Does anybody suppose that it would do 
 so? Why the question answers itself. 
 
 What is the answer in the British argument to this? It is said ia 
 the printed argument by my friends: "The right to these pearl fish- 
 eries out in the sea has been recognized from time immemorial by every 
 body ". That is precisely what we say. It belonged to you from time 
 immemorial, and it has been well recognized, and all the nations of the 
 earth have agreed to recognize it so far as can be shown by their 
 abstaining from interference. You have had — you have been permitted 
 to have — by the acquiescence of all nations, this property: you bring 
 yourself — (in fact this illustration is given by Vattel) — exactly within 
 the principle — you bring yourselves within analogous usages, when you 
 inform this fleet of quasi pirates that come there for the purpose of 
 destroying this industry with its means of livelihood for those engaged, 
 with its profits to the Government. Suj)pose that the case in this 
 Arbitration between Great Britain and the United States was, that 
 the United States claimed that the British Government should pay 
 for fishing vessels fitted out by the United States to go and prey 
 upon this pearl fishery at the risk of exterminating it; and suppose 
 Great Britain had done what she certainly would, and ought to 
 have done when those people announced the purpose of their pres- 
 ence there — had taken the ship, carried it in and confiscated it under 
 the provision of the laws made there and in force for that purpose, 
 and the United States calls upon Great Britain (as they call upon 
 us in this case), to pay for vessels seized in such fishing; suppose 
 that to be the question addressed to this Tribunal, and we to become 
 the advocates of the rights of mankind in the open sea and ask 
 an award that vessels there for that avowed purpose and with that cer 
 tain result and seized by the British Government in pursuance of stat- 
 utes long in force, and well known to all the world should be paid for, 
 I should like to know what decision .would be expected from this 
 Tribunal in that case? I should like to know what member of this 
 Tribunal would entertain that proposition for one single moment; and 
 yet it stands upon everything that can be invoked in favour of the 
 propositions of my learned friends in respect of the seal. That is to 
 
86 ORAL ARGUMENT OF HON. EDWARD J. PHELPS. 
 
 say, it would stand apon a general dissertation on tlie freedom of the 
 sea, and the right of fishing as a part of the freedom of the sea, and 
 upon this favourite proposition of my learned friends that they recur to 
 ■with so much pleasure — (because it seems more grateful to them than 
 discussing some other propositions in the case) — that you cannot give 
 an extra-territorial effect to municipal statutes. That is all very true 
 as a general proposition, but not true as applied to this class of 
 cases. It is as true in this case, as it is in the other cases of the 
 Atlantic: it is true that the sea is free: it is true that fishing, as a 
 general rule, is one of the rights of the freedom of the sea: it is true 
 that as a general rule statutes do not extend in their effect beyond the 
 territorial jurisdiction of the nation that enacts it. We should have 
 the advantage in our claim for payment for the schooners that were 
 destroying the pearl fisheries, of those propositions. Should we suc- 
 ceed? and if we should not, upon what principle is one rule to be 
 appealed to in that case, and another in this ? 
 
 Now, sir, if it were true that those Pearl Oysters had to go ashore 
 seven months of the year in order to continue their species, and went 
 ashore upon the British territory for that purpose, would the case be 
 any weaker ? Should we be able to say under those circumstances "you 
 could successfully maintain your right to the oysters, if they had stayed 
 in the sea all the time outside your jurisdiction, but if they went on 
 land and propagated there you could not"? 
 
 Senator Morgan. — Does the British G-overnment get any revenue 
 from these fisheries ? 
 
 Mr. Phelps. — I do not know. I suppose they do. I take it for 
 granted that they do, or they would not regulate them by public enact- 
 ment. 
 
 Sir Charles Eussbll. — I do not speak with certainty, but I believe 
 not. If you think it material we can enquire. 
 
 Mr. Phelps. — I do not speak with certainty. I supposed they did, 
 but I do not really know. 
 
 Senator Moegan. — The American government, of course, get a reve- 
 nue from the product of the far-seals, and they are made the instrument 
 of profit there to that extent. 
 
 Mr. Phelps. — That is a view of the case I am coming to pretty 
 soon. I had supposed that the British Government derived a revenue. 
 I may be mistaken. My friends would know a great deal better than I 
 should, but it is not material to my argument. 
 
 If you maintain the unquestioned right of Great Britain in the pearl 
 fisheries (which they contend for in their argument very properly), I ask 
 upon what ground you are expected to discriminate the case of the seals 
 from that? because when you come to look into the condition of the 
 animal, these animals who have come on shore to live, to propagate, to 
 continue to exist, are ten times as much attached to the coasts as the 
 fish. If there is any discrimination between the two cases the case of 
 the seals is ten times stronger than that of the oyster. 
 
 Then it is said by whichever of my friends is responsible for the 
 printed argument (and I believe it is said in the oral argument). " The 
 oysters are on the bottom of the sea; the seals are on the top. That 
 makes a difference"- In the first place, what authority does that stand 
 on. When they set up a distinction that has no reason for it, and no 
 sense in it, why, if it exists, it exists as a technical rule that is estab- 
 lished by authority, and, therefore, must be regarded. Is there any 
 authority for it? Is there a line from anybody who wrote before this 
 
DEAL AEGUMENT OF HON. EDWARD J. PHELPS. 87 
 
 argument, to explain to us why it is tliat there is a difference between 
 a product of that sort on the bottom of the sea, and on the surface? 
 Supi)ose seals propagated on the bottom of the sea instead of going 
 ashore, would they concede that we should be any better oft'? Suppose, 
 in the nature .of these animals, when they came in they went to the bot- 
 tom within three miles and their young were born, nurtured and raised 
 there, would that make a case in our favour that we have not now ? Or 
 suppose on the other hand, as I said just now, that oysters went ashore 
 for this purpose. Why, it is very apparent that it is not a difference 
 that could touch the principle'? That is not a difference that there is 
 any sense in. It is not a difference that was ever heard of before, as far 
 as we may infer from the absence of any authority being cited in favor 
 of it. 
 
 In answering Senator Morgan's question Mr. Poster puts into my 
 hands one of the Acts with regard to the Pearl Banks of Ceylon, It 
 is called Eegulation No. 3, of 1811. 
 
 Mr. Justice Haelan. — Where are you reading from? 
 
 Mr. Phelps. — Page 461 of the first volume of the United States 
 Appendix. The Regulation is in these words : 
 
 Whereas there is reason to suspect that depredations are committed in the Pearl 
 Banks of this Island by boats and other vessels frequenting those places in the calm 
 season, without any necessity or lawful cause for being in that situation. 
 
 For the protection of His Majesty's property and revenue, His Excellency the 
 Governor in Council is pleased hereby to exact and declare: 
 
 Then follows the Eegulation. 
 
 That if any boat or other vessel shall hereafter, between the 10th of January and 
 the end of April, or between the 1st of October and the end of November in any year 
 be found within the limits of the pearl banlis, as described in the schedule hereunto 
 annexed, anchoring or ho\'ering and not proceeding to her proper destination as wind 
 and weather may permit, it shall be lawful for auy person or persons holding a com- 
 mission or warrant from his excellency the Governor, for the purpose of this Eegu- 
 lation to enter and seize such boat or other vessel, and carry the same to some 
 convenient port or place in this island for prosecution. And every such boat or other 
 vessel is hereby declared liable to forfeiture by sentence of any coitrt having revenue 
 jurisdiction of suificient amount, and shall be condemned accordingly; two-thirds 
 thereof to the use of his Majesty and one third to the person seizing or prosecuting, 
 unless such boat or other vessel shall have been forced into the situation aforesaid 
 by accident or other necessary cause, the proof whereof to be on the party alleging 
 such defence. 
 
 Senator Morgan. — That is a sort of prize jurisdiction. 
 
 Mr. Phelps. — Yes that is what would happen to the vessel of another 
 nation that went in there in the i^rohibited time, and intended to make 
 a temporary profit out of the pearl oysters, that would destroy the 
 animal itself, and the industry. 
 
 Are we to understand that the meaning of that statute is that if any 
 British subject violates it his vessel shall be forfeited, but it is a nullity 
 to all the rest of the world; and therefore if a British subject will go 
 and register his vessel under the laws of some other nation, that will 
 give him that privilege; that he may come there with impunity, just as 
 these renegade Americans are doing, under the protection of the British 
 flag in the destruction of these seals, to commit what would be an 
 indictable offence if it were not under that protection. Is that the 
 meaning of that statute? Is that what my learned friends desire us 
 to infer from this technical argument as to the general applicability of 
 statutes, that the real reading of that statute is that if any person, 
 under the British flag, should depredate upon these oysters within the 
 prohibited time, his vessel is liable to seizure and confiscation; but if 
 
88 OEAL ARGUMENT OF HON. EDWARD J. PHELPS. 
 
 he came there under any other flag in the world that he could get the 
 use of, whether it is his own or not, then he may exterminate them at 
 pleasure. 
 
 Senator Moegan. — It could not be meant as a hovering provision. 
 
 Mr. Phelps. — One would think not. The language is.broad enough. 
 I shall have occasion pretty soon, in another connection, to consider 
 exactly, what is the meaning of such a statute. I am now upon the 
 general subject. Have they shown us that in this case, or in any other 
 of those that have been referred to, and that I shall refer to again, — 
 have they shown us that in amj case, either that an individual has been 
 permitted with impunity to violate any statute made for the protection 
 of any such product, or that any nation in the world in diplomatic cor- 
 respondence, or in any other way, has challenged the right, or asserted 
 the right of its citizens to go and participate in it. It is the usage and 
 custom of nations that my friend says makes international law ; and it 
 undoubtedly does when such usage and custom have been sufi&ciently 
 expressed, and it can only be expressed by acquiescence. Undoubt- 
 edly, on a point where the usage and custom of nations can be regarded 
 as established, he is quite right in saying that makes International 
 law, and may make it to such an extent that you can not countervail it, 
 even upon strong moral considerations. We are not now engaged in the 
 discussion of the general principles of the extent and applicability of 
 particular statutes, whether they are or are not sometimes defensive 
 regulations, whether they may or may not be extended beyond the 
 three mile line. That is not the point. What is the usage and custom 
 of nations in practice, in point of fact, in regard to property of this 
 kind under similar conditions — weaker always — but similar? Now I 
 repeat the question : 
 
 Instead of this argument on the general propositions that nobody 
 deniies, and that is perfectly foreign to' anything we have before us, 
 have they shown us the case in any of these countries who have asserted 
 such rights in which any individual belonging to another country has 
 been permitted to transgress it, or any nation has challenged their right 
 to forbid it? I go further : have they shown that in addition to all these 
 instances, which, as I said, comprehended every case of such property 
 that we know of, now existing in this world, have they been able to say 
 " in another country that you have not mentioned, in respect of another 
 class of similar property which you have not brought forward, a nation 
 which has undertaken to protect it and build up an industry upon it, 
 has found itself incapable of enforcing its rights, and has permitted 
 foreigners to come there and invade it to the extent of destruction, or 
 to any extent at all. Have they found such an instance? Not one. 
 Starting with my learned friend's proposition, that it is the usage of 
 nations, just or unjust, right or wrong — that makes international law — 
 that it is of no use to talk about the principles of justice, of right, 
 of the fundamental ideas that underlie the law, the necessity of man- 
 kind, the policy, the comity of nations — the point is what the usage 
 of nations has been, we undertake to show (and there- is.no' contradic- 
 tion in the evidence in this respect) what the usage of nations has 
 been in every similar case that we know of. Do they produce any 
 other case establishing a different precedent? Not one. But they say : 
 " statutes do not operate beyond the jurisdiction of the country that 
 enacts them ". Does the power of the country (call it by what name 
 you please), operate to the extent of protecting this industry whether 
 it is inside of the three-mile line or not? That is the question. Now 
 
ORAL ARGUMENT OF HON. EDWARD J. PHELPS. 89 
 
 what is the technical effect of a statute. What has been the actual 
 effect of such statutes, for the one hundred years or more that they 
 have prevailed iu all parts of the earth. My learned Mend who just 
 now was so clear that the passage from Vattel, that I began by read- 
 ing this morning, applied only to the three-mile limit, forgot for the 
 moment that they have cited that very passage in the printed argu- 
 ment in support of their right to protect those Pearl Fisheries 20 miles 
 out at sea. My friend cites the same passage that I have read as show- 
 ing that their right to the Pearl Fisheries is unquestionable. But this 
 morning he iniorms us that Vattel is very clearly applying it only to 
 the three-mile limit. 
 
 Sir Charles IIussbll. — I was not referring to that passage in the 
 observation I made. 
 
 Mr. Phelps. — That passage was the only subject of discussion at 
 the time. 
 
 Sir Charles Eussell. — They are not in the same section at all — 
 not in the same connection. 
 
 Mr. Phelps. — I am referring to the passage that I read from the 
 United States Argument this morning, being one section and a part of 
 the next section, and the question arose — it was suggested by his Lord- 
 ship, that perhaps that Vattel meant to say that the right was exclu- 
 sive within 3 miles. That was the point, and my friend says that is 
 what it means, and that the context shows it; and yet in the British 
 Argument, at page 51, you will find this very passage referred to iu 
 support of the claim they there make that their right to the Pearl 
 Fisheries which they have had from time immemorial, is unquestioned; 
 and they give there the very meaning and the correct meaning to the 
 passage from Vattel that I gave it this morning. 
 
 Now my friends may have this one way or the other. It does not so 
 much stand upon what; Vattel says, eminent as he is; it is a good 
 starting iioint to find the proposition so felicitously stated by so great 
 a writer. Cast that aside: what is the usage of mankind in regard to 
 these various kinds of property? They say: there is no analogy 
 between oysters and seals. Well, what is the reason that there is not? 
 And, if there is a difference, which way does the difference make ? Both 
 are marine products to a certain extent — the oysters exclusively so. 
 They never come ashore — never touch the British territory: the seals 
 do come ashore, and they must. They are produced there and they 
 remain there a considerable part of the time. Now what is the rensou 
 that there is not an analogy? and, so far as the analogy fails, in 
 which is the case the strongest for the right of protection if there is a 
 difference between the two cases? 
 
 There is the case of the Mexican Pearl Fisheries. I will not read 
 those Statutes again. They have been read once, and they are in 
 print before you. We know what their effect is, but I will briefly refer 
 to the map. If you will have the kindness. Sir, to glance at the map, 
 it is at page 486 of the first volume of the United States Appendix. 
 Tou will see there laid out — (and it has not been questioned in the 
 British Counter Case that it is laid out correctly) — the extent of the 
 Fisheries that are there protected. Those red and blue concessions — 
 (that is the space in which these oysters are found) — are each 5 kilo- 
 metres in width. The technical operation of these Statutes I will 
 consider by and bye; what has taken place with regard to those Fisher- 
 ies? Have they ever been permitted to be invaded by the Government 
 of Mexico ? Is there proof that somebody has gone there sailing under 
 
90 ORAL ARGUMENT OF HON. EDWARD J. PHELPS. 
 
 the flag of mankind and claimed to take a hand in those Fisheries in 
 the sea outside of the three mile limit, and that the Mexican Govern- 
 ment have permitted him to do it; or that any nation has asserted any 
 such right? Those laws apply in terms to foreigners, but I lay no 
 stress upon that. You cannot extend the jurisdiction of a statute, by 
 the words of the statute itself, beyond the power which the nation has 
 to pass such a statute. If a Statute does not operate beyond the juris- 
 diction of the country that enacts it, it cannot be made to operate by 
 passing another Statute in that country that it shall. I lay no stress 
 (except for a purpose I shall come to by and bye), upon the fact that 
 many of these statutes — both British and Foreign — are general in their 
 terms, and manifestly apply, so far as the language goes, to foreigners. 
 I am upon the question of what has taken place under such statutes. 
 International law is not made by any nation passing a statute — it is 
 the acquiescence of mankind in the assertion of a right that makes 
 International law. 
 
 Now take the matter of the Coral Eeefs. The French law protecting 
 that product will be found in Volume I of the United States Appendix 
 page 469. Tou "will find opposite page 469 on the map, the area of the 
 Coral fisheries on the coast of Algeria which are protected by the French 
 law. The second article from the Decree of the 10th May 1862 Is quoted 
 in French at page 469; and the translation is this: 
 
 Upou the request of the expert fishermen of their representatives, or, for the want 
 of them, of the syndicates (organizations) of seafaring men, certain fisheries may he 
 temporarily forhidden over an extent of sea situated heyond three miles from the 
 shore, if such measure is required in the interest of the preservation of the bed of the 
 sea or of a fishery composed of migratory fishes. 
 
 Tou will see on the map the extent to which that runs out, which is 
 considerable. I do not know that the exact figures are given — 7 miles 
 I am told is the extent. 
 
 The Australian Pearl Fisheries will be seen indicated in a previous 
 map opposite to page 468. You will see how very extensive they are — 
 much beyond any limit of territorial jurisdiction, and that statute is by 
 its terms restricted to British subjects and boats. It has been remarked 
 upon by my friends on the other side. But there again whatever the 
 effect of the statute may be, the same question occurs: what has taken 
 place? Is that a business that is open to mankind at large? Has it 
 ever been attempted ? 
 
 The Italian Coral Beds have been referred to. The Coral beds of 
 Sardinia and Sicily, the former from 3 to 15 miles from the land; the 
 latter 14 to 32 miles from the land. The maps relative to those will be 
 found opposite pages 470 and 472 showing the extent of these "fish- 
 eries", if that is a correct term. One map is of the coral beds of Sar- 
 dinia and the other of the coral beds of Sicily. You will see to what 
 distance they extend. And those statutes are general in their terms so 
 that by the language of the statutes they would apply to foreigners. It 
 was observed by the Marquis Venosta when that was under discussion 
 before — I believe when my associate was speaking — that he did not 
 understand those Statutes to apply to foreigners, but that foreigners did 
 not go there. Well that is the point upon which I am now. Has Sicily, 
 or has it not, from the beginning, up to now, successfully asserted its 
 protection over this property? Has any writer challenged it? Has 
 any nation challenged it? 
 
 Passing from the subject of coral — we have considered the pearl 
 oysters and the coral— I believe 1 have named all that there are — ^pass- 
 ing to oyster beds, the British Fisheries Act of 1868 (which will be 
 
ORAL ARGUMENT OF HON. EDWARD J. PHELPS. 91 
 
 found ou page 457 of the 1st volume of the United States Appendix), 
 you will see, without my stopping to read it, is very explicit, and is 
 bounded by lines which are shown ou the map which take in a very 
 great area of the sea. They are 20 miles out in breadth, and for a long 
 distance — some degrees of latitude, along the coast of Dublin, Wicfelow, 
 and Wexford Counties; and it is provided there after giving these 
 boundary lines from the eastern point of Lambay Island to Carnsore 
 point on the Coast of Ireland within a distance of 20 miles from there 
 measured from a straight line drawn as shown on the map, that all such 
 Bye laws should apply equally to all boats and persons on whom they 
 may be binding. Then it proceeds in conclusion to say this : 
 
 It sliall be lawful for Her Majesty by Order in Council to do all or any of the fol- 
 lowing things namely. 
 
 (a) To direct that such Byelaws shall be observed. 
 
 (b) To impose penalties not exceeding twenty pounds for the breach of such Bye- 
 laws. 
 
 (c) To apply to the breach of such Byelaws such if any of the enactments in force 
 respecting the breach of Regulations respecting Irish Oyster Fisheries within the 
 exclusive fishery limits of the British Islands and with such modifications and alter- 
 ations as may be found desirable. 
 
 (d) To revoke or alter any Order so made, provided that the length of close time 
 prescribed by any such Order shall not be shorter than that prescribed for the time 
 being by the Irish Fishery Commissioners in respect of beds or banks within the 
 exclusive fishery limits of the British Islands. Every such Order shall be binding 
 on all British Sea Fishing Boats and on any other Sea fishing boats in that behalf 
 specified in the Order, and on the crews of such boats. 
 
 There we have in explicit terms that the statute authorises the Orders 
 in Council to extend to everything. Well, says my friend, they have 
 not extended them. I do not know whether they have or not. If he 
 says that, I take his statement. 
 
 Lord Hannen. — That requires a little explanation. It is only giving 
 the power to the Crown by the advice of the Privy Council to do certain 
 things in certain events. 
 
 Mr. Phelps. — I am quite aware of that. 
 
 Lord Hannen. — It is a common mode. It is only to give the power 
 of exercise; but of course it has no effect. 
 
 Mr. Phelps. — I am quite awareof it. It is a statute that gives power 
 to issue Orders in Council. 
 
 Now if England has not that power, how can that statute confer it by 
 Orders in Council? 
 
 Sir Charles Eussell. — That is explained in the Argument at 
 page 50. 
 
 Lord Hannen. — It is to enable the crown to enter into Conventions, 
 and other things, without the trouble of going to Parliament. 
 
 Mr. Phelps. — I should have said if the remark had not come from 
 your Lordship but from the argument on the other side — that that was 
 a far-fetched construction. 
 
 Lord Hannen. — I am only telling you the fact ; deal with it as you 
 think fit. 
 
 Mr. Phelps. — The statute contains no such reference. The statute 
 
 is: 
 
 Every such Order shall be binding on all British Sea Fishing Boats and on ani 
 other Sea Fishing Boats in that behalf specified in the Order. 
 
 Senator Morgan. — Has the statute been repealed. 
 
 Mr. Phelps. — No not that I know of. I believe it is not claimed to 
 have been repealed. 
 
 If as is said by my learned Mends this is the reason of that statute, 
 with the extreme particularity with which English statutes are usually 
 
92 ORAL ARGUMENT OF HON. EDWARD J. PHELPS. 
 
 drawn, I suppose it would have said so; it would have said that it 
 shall apply to any fishing boats in respect to which any convention 
 or Treaty may be entered into ; but we are still short of the practical 
 question; what has become of the fisheries? While we may be dis- 
 cussing the technical operation of a Statute that authorises Orders 
 in Council — while we may be considering whether in fact any such 
 Order in Council has ever been issued — and if my friends say it has 
 not I of course take their statement because they know very well — 
 while we are discussing that, what has become of the fish — the 
 oysters? There again is it shown, in this exhaustive preparation, ihat 
 notwithstanding the language of this Statute the beds have been open 
 to all the world up to the extent of the three mile limit? Has any 
 instance of any infringement been shown, or does the same conclusion 
 come as in every other one of these cases? The Government take the 
 business in hand as they ought to do — as they are bound to do in jus- 
 tice to their subjects und themselves— they take the business in hand 
 by making a revenue and making an industry, and they pass a statute 
 that on the face of it says to the world: " Stand off; you cannot come 
 here within 20 miles and take these fish". 
 
 My friend says that that statute would not do any good if the world 
 came. Did they ever come? 
 
 Has any body attempted it? Has any nation asserted it, or has it 
 resulted in a complete protection of that industry? And what would 
 have happened if they had come? 
 
 The President. — War. It has perhaps not been challenged, but it 
 is a challenge. 
 
 Mr. Phelps. — Yes, if it can be dignified with the name of "war"; 
 but it is unquestionable that if any tbreign vessel had undertaken to 
 come there and destroy the fish, that vessel would have been taken and 
 prevented from going on in the business. If that is war, then call it so. 
 But what nation would have backed up its citizens in any such attempt? 
 What nation, I repeat, ever made such an assertion? It is the practi- 
 cal result of those acts by the exclusive acquiescence of nations that I 
 am dealing with. 
 
 The Scotch Herring Fishery Act is a provision of a very similar kind. 
 The map will be found opposite page 468 of the 1st volume of the 
 United States Appendix, showing the extent of the sea. It is a very 
 large one and covers a very large tract of sea, extending some thirty 
 miles from land. It applies in its terms to " any person ". My friend 
 says "any person" means any person within the jurisdiction of Great 
 Britain and, for certain purposes, when that language is used in an 
 Act, they are undoubtedly right. But here again comes the same ques- 
 tion as to the practical result that has taken place. I do not know, 
 Sir, that, aside from these Herring Fisheries, Oyster-Beds, Pearl Oys- 
 ters, and Coral, there is any other description of property now known 
 in the world that comes within the purview of this principle, except it 
 be the seals. 
 
 Now what about the seals? What is the protection that has been 
 extended to them? And before entering upon that branch of the sub- 
 ject, as it is within two or three minutes of the time of adjournment, 
 perhaps it would be convenient for you to hear me afterwards. 
 
 The President. — Quite so. 
 
 The Tribunal then adjourned for a short time. 
 
 Mr. Phelps. — I hope, Sir, I shall not be found tedious in pursuing 
 this line of illustration, or rather of historic precedent, over which I 
 shall pass as fast as I can. I now come to the particular point of the pro- 
 
ORAL ARGUMENT OF HON. EDWARD J. PHELPS. 93 
 
 tection that has been afforded to the seal in the various countries, — all- 
 the countries I believe in which it is now to be found, and the conse- 
 quence of the want of it in those countries in which it formerly existed 
 and from which it is now gone. 
 
 The iirst instances I shall allude to are under the Imperial Govern- 
 ment of Great Britain, but in force in its Colonies. In the 1st United 
 States Appendix, at pages 436 and 437 will be found the Act for the 
 protection of seals in New Zealand — an abstract running through pages 
 438, 439 and 440, and a Map. It is said by my learned friends in regard 
 to the map, and I think they are right in this criticism, that as drawn 
 it carries an erroneous impression of the effect of the Act fixing the 
 boundary of the Province of New Zealand; that while the map is cor- 
 rect in giving the limits of latitude and longitude which are described 
 as constituting the Colony, that it was hot the intention of the Act to 
 assert such a jurisdiction over all the intermediate sea, but only to 
 make that a boundary so as to include within it all the land and islands 
 with the usual territorial limits. Certainly that was not the intention 
 of the gentleman who prepared this map; but I think the observation 
 of my friend is well founded. Neither is it in the least material to our 
 purpose, because as I believe I remarked this morning, nothing can be 
 clearer than that the jurisdiction upon the high seas of a country can- 
 not be arbitrarily extended to geographical limits, aside from any 
 special necessity that would justify it, by a Statute of that country. 
 So that if it were true that the Legislature of New Zealand had under- 
 taken to assert that several thousand miles of sea, irrespective of any 
 particular purpose, should be regarded as the territory of New Zealand, 
 that would no more make it so than it would have followed if they had 
 passed no such act whatever. But the point is the close protection, 
 the very special protection given by these acts, and under which, on 
 the face of the act, any vessel, boat or crew are made liable if found 
 within the waters where the seals are. That is the point to which we 
 have intended to invite attention by reference to these Statutes and 
 the construction of the map. 
 
 Section 4 of the act of 1887 provides : 
 
 If any person shall be found, in the possession of any seal, or the nnnianufactnred 
 product of any seal, during the close season, such possession shall, for the purposes 
 of the said act and thia act, be deemed to be, in the absence of satisfactory evidence 
 to the contrary, suiBcient proof, and so on. 
 
 Then section 5 is : 
 
 Any vessel or boat the crew of which, or any part of the crew of which, shall be 
 engaged in illegally taking seals, and any vessel or boat on board of which any seals 
 so illegally taken, or the skin oil, blubber, or other product of a seal so illegally 
 taken, shall be found, shall, together with the boats, furniture, and appurtenances 
 of such vessel or boat be forfeited to Her Majesty, and shall be disposed of as the 
 Commissioner may think fit. 
 
 There are other very stringent provisions. There is one in section 7 
 that provides in effect that any officer of that Government shall have 
 power to enter upon and search any vessel within the jurisdiction of 
 the Government of the Colony of New Zealand for any seal or the 
 product of any seal. I need not go through with the details of this 
 protection; it is enough to say that they are such measures as are very 
 properly and intelligently adopted by that Government for the protec- 
 tion of the seal, and whether they are greater or less, or right or wrong, 
 in themselves, does not affect the principle. 
 
 Here again the same observation which I have had occasion to make 
 before is applicable. During all this period and through all these Acts, 
 
94 ORAL ARGUMENT OF HON. EDWARD J. PHELPS. 
 
 if the practical operation of tliem during many years has been only to 
 control British subjects and British ships, and if it be true that the 
 seal fisheries of New Zealand have been open to the world during this 
 time or any part of it, or if such an assertion has ever been made, evi- 
 dence of it would have been forthcoming, because my learned friends, 
 of course, and those who instruct them are quite in possession of all 
 the records, and all the information and knowledge that is to be fur- 
 nished by the Government of New Zealand, on this subject. 
 
 Look at it for a single moment. Is there a single spot in the world 
 where the fur seal is known ever to have been that it has not been made 
 the subject of pursuit from the very profitable results of such pursuit? 
 Is there a place? We have seen in the progress of this case that on 
 almost every spot in the world excexjt these Islands in BehringSea, the 
 seal has not been only pursued, but exterminated. In two or three 
 localities, under the influence of such protection as has been adopted 
 at a comparatively late day, when attention was called to the value of 
 it — in two or three localities like the Lobos Islands, and such places, 
 there is a remnant of the seal. Now if the New Zealand seals had been 
 open during all this time to general pursuit as my learned friends con- 
 tend the Behring Sea seals should be and are, how happens it that that 
 place alone has been free from the attacks of the vessels that have 
 gone to the utmost parts of the earth, as the evidence shows, for the 
 purpose of depopulating and exterminating the seal Islands. This then 
 appears, that under these Statutes which on the face of them apply to 
 everybody — under the effect of those Statutes in the districts shown by 
 the map, the seal has been protected, and the world — that is, such por- 
 tion of the world as could have any interest in trespassing upon it — 
 has acquiesced in that. 
 
 The Falkland Islands is another place, where at a later period — as 
 late as 1881 — measures were adopted for this purpose. It was an Ordi- 
 nance to provide for the establishment of a close time in the seal fishery 
 of the Falkland Islands and their dependencies, and the seas adjacent 
 thereto; and the preamble is : 
 
 Whereas the seal fishery of these islands which was at one time a source of profit 
 and advantage to the colonists has been exhausted by indiscriminate and wasteful 
 fishinjj;, and it is desirable to revive and protect this industry by the establishment 
 of a close time, during which it shall be unlawful to kill or capture seals within the 
 limits of this oolouy and its dependencies, 
 
 Be it therefore enacted, and so forth. 'That is the reason and the 
 first reason why no person shall kill or attempt to capture, and without 
 stopping to read the various provisions, they will be seen to apply in 
 their terms to any person, any ship, any master or sailor, and to every 
 description of seal including some varieties that are not strictly of the 
 family of the fur seal. 
 
 Sir Charles Eussell. — Within the limits of the Colony. 
 
 Mr. Phelps. — ^Within the limits of the colony and its dependencies, 
 yes. It does not appear there, — I think the contrary does appear— that 
 the sealing is not pelagic. I do not know whether it does or not appear 
 that this sealing is principally, I believe, on the Island. 
 
 Mr. Justice Harlan. — At any rate, that state went as far as flie 
 country thought it could go for the protection of the seal. 
 
 Mr. Phelps. — It went as far as it was necessary to go and only limits 
 it by the limits of the Colony. 
 
 I may say in passing what I might better have said at the beginning 
 of this afternoon, that this protection of the seal, shown to be univer- 
 sal now as far as there are any seals left, will be a very important con- 
 sideration when we come to discuss the extent of the freedom of the 
 
ORAL ARGUMENT OF HON. EDWARD J. PHELPS. 95 
 
 sea. It will be seen, as I pass over these instances, that in every spot 
 where there are any sealT now, even in places where they have been so 
 nearly exteriniuated, that it is almost questionable whether it is worth 
 while to try to restore them, like these very Falkland Islands and some 
 other places, wherever there are seals enough to afford any prospect of 
 usefulness in attempting to protect them, there they are protected. So 
 that if the right exists to come here and exterminate this race upon the 
 high seas, then it follows that you may do on the high seas what the 
 inhabitants of this country are prohibited by their own laws from doing 
 within their jurisdiction, — what is prohibited by the laws of every 
 country where the same animal is still to be found. 
 
 It is said by my learned friend, Sir Eichard Webster, that in the 
 case of the "Harriet", which was a vessel belonging to the United 
 States that was captured at the Palklaiid Islands, the correspoadence 
 contains some language tending to show that the Government of the 
 United States did not recognize any right to interfere with them upon 
 the high seas, but asserted the contrary. My learned friend is wrong 
 in the inference he draws from that case, except to the very limited 
 extent that I shall point out. The correspondence will be found in the 
 Counter Case of the United States at page 184. The American vessel, 
 the " Harriet", which was seized there, was seized for taking seals on 
 the Falkland Islands; and, of course, .there can be no question about 
 the illegality of that, or the propriety of the seizure; but the case fell 
 for discussion into the hands of some gentleman not named, who was a 
 United States Charge d' Affaires, that is to say, he was the Secretary 
 of the Legation at Buenos Ayres, which is not a very great Legation, 
 and had the good fortune to be able to deal with this subject in the 
 absence of his principal. Those who have paid much attention to 
 diplomacy have become aware that the ablest diplomatists are those 
 who consume the least ink in dispatches that have to be printed. But 
 there is another class of diplomatist, if you can dignify them by such 
 a name, of less distinction, and of whose labours the results are gener- 
 ally wanting, who lose no opportunity to enlighten the world by the 
 discussion of those abstract propositions that wise nations and wise 
 statesmen avoid the discussion of just as far as they can. I do not 
 know who this young gentleman was, his name has not survived; but 
 young or old, I should judge from his style Ije was not past the period 
 of imagination. 
 
 Sir Charles Eussell. — He says he is stating the views of his Gov- 
 ernment. 
 
 Mr. Phelps. — Undoubtedly he is stating the views of his Govern- 
 ment, as expressed by himself. A Charge cPAffaires always does 
 express the views of his Government in what he says officially ; but 
 whether he had received instructions from his Government to discuss a 
 question that was not raised, is not shown; from my knowledge of the 
 statesmen who had control of the Government of the United States at 
 the date of this correspondence, I should think it very doubtful if he 
 had. I think if he had received any instructions from his Department, 
 it would have been to confine his discussion to tlie point in dispute, and 
 not to anticipate evil by discussing some question that was not up. 
 He does set forth what fulminations would have been launched by the 
 United States Government against anybody that had seized a hypo- 
 thetical vessel on the high sea, on the pretence that it was doing some- 
 thing that could be imagined; and what he says on that subject may 
 go for what it is worth, as far as it is authority. But the ease presents 
 nothing except the right of the authorities to capture that vessel for 
 
96 ORAL ARGUMENT OF HON. EDWARD J. PHELPS. 
 
 going on to the Falkland Islands and killing the seals. That is all 
 there is of it. What he says on the general subject is not of oue. tenth 
 part the consequence of what either of my learned friends say, because 
 they are so much more competent to discuss it than he is. 
 
 The deposition of Captain Budington is to be found in the 2nd volume 
 of the United States Appendix at page 593, and throws a little light 
 upon this vexed question of how far these Statutes and Eegulations 
 and provisions are actually in force. He was a master mariuer, and a 
 sealer in the Antarctic, who had made, as he says, several voyages to 
 the Southern hemisphere for the purpose of seal hunting, and was 
 thoroughly acquainted with the islands and coasts. He speaks of vari- 
 ous localities in which the Seals had been found, which he had visited 
 and helped to exterminate them. One is Patagonia. There, he says. 
 
 Great quantities have been taken from the Eastern Coast, hut at present there are 
 no seals there. 
 
 Then. 
 
 Terra del Fuego and the islands in the vicinity. These islands were at one time 
 very abnndant.iu seals and were considered among the best rookeries. I visited 
 them in 1879-1880 and took 5,000 skins. On my last voyage in 1891-1892 I took only 
 900 and the majority of these came from another portion of the coast which had not 
 been worked for twelve or fifteen years. Thousands of skins had formerly been 
 taken from these islands but the animals are practically extinct there today. 
 
 But what I was coming at is this: 
 
 Falkland Islands. At one time these islands were very abundant in seal life, but 
 excessive and indiscriminate killing has nearly annihilated them; this fact was rec- 
 ognized by the government of the Islands, which passed an ordinance in 1881 estab- 
 lishing a close season from October to April. It will be recollected, being in the 
 Antarctic, this is the opposite period of the year, for the islands and the seas adjacent 
 thereto. My understanding of this ordinance was that the Government would seize 
 any vessel taking seals' close to or within 15 or 20 miles of the islands. It certainly 
 would not have been allowed to take seals between the Falklajids and Beauchene 
 Island 28 miles distant, which is considered part of the group. I understood this 
 ordinance was passed on the ground that the seal resorting to these islands was the 
 property of the Government, and therefore it had a right to protect them every- 
 where. The Government, however, gave licenses to certain parties at from I. 80 
 to I. 100 a year to take seals during the close season. On account of these licenses I 
 think the effect of the ordinance is nullified, although the islands are well guarded, 
 and seals have increased very little if at all, because of allowing hunting to take 
 place under these licenses. 
 
 l!fow it is .said by my learned friends, and said truly, this is the under- 
 standing of that man. Who is he? A sealer whose business has been 
 going through that part of the world and capturing the seals indis- 
 criminately, who had visited the Falkland Islands, who while there 
 were seals enough there to make it an object to have pursued them 
 refrains, because he understood as the fact undoubtedly was, that if he 
 meddled with them in defiance of the existing regulations, his vessel 
 would have been seized. It is the best evidence we can get in such a 
 case, unless indeed some one had been hardy enough to attack the seals 
 and had been seized in point of fact. The next best evidence is that of 
 persons who had been engaged in that destruction, and had such an 
 understanding in respect of the manner in which these statutes were 
 enforced, that they were induced to refrain and did refrain, and it is 
 most likely that their understanding was correct. 
 
 In Newfoundland there is protection extended to a different variety 
 of the seals, but still seals. They are hair seals. The Act of 1879 and 
 the Act of March 1883, and the Act of 1882 are three Acts that are 
 quoted in the 1st vo. of the United States Appendix at pages 442 and 
 following, and were enacted and very properly enacted for the protection 
 
ORAX, ARGUMENT OF HON. EDWARD J. PHELPS. 97 
 
 of those anhnals, being foand necessary to ttieir protection if they were 
 to be saved. The terms of the Act show what the distance is. It pro- 
 vides that no steamer shall leave port for the seal fishery before 6 
 o'clock in the forenoon on the 10th day of March in any year, and no 
 sailing vessel shall leave port for the seal fishery before the hour of 6 
 o'clock in the forenoon on the 1st day of March in any year. It pro- 
 vides that no steamer shall make a second trip in any one year, from 
 any port of this colony or its dependencies ; that no official of Her 
 Majesty's customs in this colony shall clear any steamer for a sealing 
 voyage before the 9th day of March, or any sailing vessel for a sealing 
 voyage before the last day of February. All that shows, without the 
 aid of any map, that it is a voyage for which a vessel requires a clear- 
 ance, and the time of sailing for which is material; and only one voy- 
 age is permitted during the year. All that shows that this is something 
 outside the three mile limit, and the nature of the animal, as we have 
 heard from the evidence in this case, is such that it must be sought 
 principally in the open sea, beyond that line, some hundreds of miles — 
 I am told by General Foster, but far enough to answer the purpose of 
 this discussion, because quite outside of any territorial jurisdiction. 
 
 There is a deposition on this subject as well. 
 
 Senator Morgan. — Is there any evidence to show those hair seals 
 have any summer hom6 on land anywhere, at any particular place? 
 
 Mr. Phelps. — I do not think -there is. I think that they do not 
 breed or propagate on land as the fur-seals do. They propagate on the 
 ice, I am informed. I do not understand that they come to the land 
 for any such purpose or such period of time as the fur-seal do. 
 
 Senator Morgan. — The reason of my question was that I supposed 
 that was the occasion for the enactment of laws by governments inter- 
 ested in the hair-seal fishery on hunting that were several hundred 
 miles distant. No particular country had jurisdiction over the land 
 upon which that species of seal was propagated. 
 
 Mr. Phelps. — I suppose that is true. I suppose that there is no 
 analogous case, in respect to their attachment to the soil, to that of the 
 fur-seal to be found in the hair-seal; but, nevertheless, under circum- 
 stances much weaker on behalf of protection than that of the fur-seal, 
 this protection is extended, and as I insist it is properly extended. 
 
 The President. — I believe they are less migratory in their habits. 
 
 Mr. Phelps. — They are less migratory, so that in one respect they 
 remain nearer, but in the other particulars I think they do not go on 
 the shore. There is evidence to which I shall have to refer so as to 
 answer that. 
 
 Senator Morgan. — As I understand, several European Governments 
 have by convention arranged for the protection of these seals by a 
 close season and otherwise, and I state the proposition with a view of 
 having information upon it, if it can be obtained. I suppose that this 
 joint arrangement between the nations is really predicated on the fact 
 that no one of them had a particular jurisdiction over the animal, 
 because they landed or were in the habit of landing at a particular 
 territory. 
 
 Mr. Phelps. — That applies to some of the fisheries that I shall refer 
 to. This one is an Act by Canada, or Newfoundland I should say, in 
 which no other nation, as far as I am aware, participates, and in respect 
 of which there is no convention. 
 
 Senator Morgan.— It protects the hair-seal within certain degrees of 
 latitude and longitude in the open sea; 
 
 Sir Charles Eussell. — It is Newfoundland. 
 
98 ORA.L ARGUMENT OF HON. EDWARD J. PHELPS. 
 
 Senator Morgan. — Yes. 
 
 Sir Charles Russell. — It has regulations about preventing sealing 
 from a particular day in the year. 
 
 Senator Morgan. — To a certain place in the ocean. 
 
 Sir Charles Russell. — There is no question about any place in the 
 ocean. 
 
 Senator Morgan. — It seems to me it must be. 
 
 Mr. Phelps. — I will refer again to the act, which will be found on 
 page 442 and 444 of the United States Case. 
 
 Sir Charles Russell. — This is the Jan Mayen Convention. 
 
 Mr. Phelps. — That is the other side of the Atlantic, but in this one 
 the legislation is confined to l^Tewfoundland; and I will read a few of 
 these sections and then you will see how far it goes. The Act of 1892, 
 on page 444, 1 will refer to. 
 
 No steamer shall leave any port of Newfoundland or its dependencies for the prose- 
 cution of the Seal Fishery hefore the hour of six o'clooi in the fore noon of the twelfth 
 day of March in any year under a penalty of five thousand dollars, to be recovered 
 from the master, owners, or other person on whose account such steamer shall have 
 been sent to such fishery; provided. 
 
 And so forth. 
 Then 
 
 No seals shall be Inlled by any crew of any steamer,' or by any member thereof 
 before the fourteenth day of March or after the twentieth day of April in any year, 
 nor shall seals so killed be brought into any port of this colony or its dependencies, 
 as aforesaid, in any year under penalty of four thousand dollars. 
 
 and so forth. 
 
 Senator Morgan. — Kovf if you will allow me to ask, aU that relates, 
 as I understand it to pelagic hunting of hair seals. 
 
 Mr. Phelps. — Tes. 
 
 Senator Morgan. — The question I was asking was, whether there 
 was upon the coast of ]!fewfoundland, or any other place where these 
 seals assemble, a rookery or place of resort or habitat. 
 
 Mr. Phelps. — I understand not. I understand that they breed in 
 the open sea or upon the ice in the open sea, that they do not come 
 ashore, that in that respect they are entirely different from the fur-seal. 
 
 Senator Morgan. — That is what I wanted to know. 
 
 Mr. Phelps. — You will remember, although in the evidence in this 
 case as to the Behring Sea, it is shown the hair seals frequent more or 
 less and are seen in the water, there is no proof they come up at the 
 Pribilof Islands or the Commander Islands or anywhere else. 
 
 Senator Morgan. — So that the Statute you have just read relates 
 entirely to pelagic hunting. 
 
 Mr. Phelps. — Entirely. 
 
 Sir Charles Russell. — There is a statement by Professor Allen on 
 the subject which would seem to be rather contrary to my learned 
 friend's view. 
 
 Mr. Phelps. — I may not be quite accurate in what I say about the 
 natural place of these animals. I confess it has not attracted my 
 attention. 
 
 Sir Charles Russell.— There is a reference in it to Professor Allen, 
 and there is this reference from Professor Flower, page 185 of the Brit- 
 ish Commissioners Report. He says : 
 
 In habits all the Otariidce, whether hair-seals or fur-seals, appear to be much alike. 
 As might be inferred from their power of walking on all fours, they are better capa- 
 ble of locomotion on shore, and range inland to greater distances than the true seals 
 at the breeding season, though even then they are always obliged to return to the 
 water to seek their food, and the rest of the year is mainly spent in the open sea far 
 awav from land. 
 
ORAL ARGUMENT OF HON EDWARD J. PHELPS. 99 
 
 Mr. Phelps. — I will be ready in the morning to answer the question 
 definitely, but I am not at this moment. It is not in my mind, and what 
 I have said is upon my general understanding of the subject and may 
 be somewhat inaccurate. My general understanding is that they are 
 not much on shore, and certainly do not breed on shore, but that they 
 may come on shore at certain times may be true, as my learned friend 
 says, and is true if Professor Allen says so, as he is an authority on the 
 subject; but in all this mass of evidence I recall no statement by any 
 witness about any hair seal being ashore in Behring Sea — certainly not 
 on the Commander or Pribilof Islands with the fur seals, and I do not 
 think there is a statement by anybody as to having seen one ashore 
 anywhere else. 
 
 The propriety of those provisions is shown by the affidavits of a couple 
 of masters of sealing vessels which will be found at page 691 of the 2nd 
 United States Appendix. One of them says he has : 
 
 Been twenty four years prosecuting the seal fishery on the coast of Newfound- 
 land, Labrador, and Gulf of St. Lawrence, nine years of which I have commanded 
 a steamer. 
 
 I am opposed to second trips to the seal fishery, as I consider they are calculated 
 to destroy the species, as all the seals killed on such trips are old and mature seals, 
 and at least 75 per cent of them are female seals. 
 
 I am now speaking of harpseals ; they are principally shot on the ice, but when 
 the ice packs they are tilled with bats. When shot on open or floating ice a large 
 number of them escape into the water and die from bleeding. 
 
 I should say that for every seal shot and captured three escape wounded to die iii 
 the water. 
 
 That is when they are shot on the ice where, of course, it is easier to 
 hit them than when shooting at the head of animal that is swimming in 
 the water. 
 
 I have seen ten seals on one pan shot and wounded and all escaped. To kill and 
 capture the seal the bullet must lodge in the head ; if it strikes any part of the body, 
 the seal will manage to get to the edge of the pan and escape into the water. I 
 know from my own knowledge that the number of seals brought in on second trips 
 is yearly decreasing, and that the fishery is being depleted by the prosecution of 
 this trip. Apart from the number of old mature and female seals destroyed, the 
 hunting necessary for their capture prevent the male and female coming together. 
 
 Richard Pike testifies to the same effect. 
 
 I cannot speak of the percentage of seals taken on a second trip, nor of the sex. 
 Nearly all the seals taken are bedlamers and old harps. The second trip generaJly 
 covers the month of April. Nearly all the seals taken on the second trip are shot on 
 open and floating ice. Very few are shot in the water, for if hit there is very little 
 chance of their capture as they sink immediately. They are seldom or never fired 
 at in the water for unless they are very close there is very little chance of their being 
 recovered. Fully one third of the seals shot on the ice are lost, for when wounded 
 they manage to crawl to the edge of the pan and into the water and when once in 
 the water they sink or die from their wounds. 
 
 Seals shot in the water in the month of March can be recovered, as they are fat 
 and in good condition, and float, but in the latter part of April when shot they sink 
 immediately. I am strongly against second trips, as in my opinion they are causing 
 a rapid decline in the industry, likely to lead to the extermination of the species 
 by the killing of old and mature seals and the destruction caused by the use of fire 
 arms. 
 
 I refer to that to show what the point is of this statute enactment 
 against going out to the fishery before a certain period of the year and 
 against second trips. They are simply measures necessary for the 
 preservation of the seal. 
 
 The Greenland Fisheries, to which Senator Morgan referred, will be 
 found stated in the United States Case at page 227. I have a reference 
 to the State Papers on that subject, but the book accidentally has been 
 
100 ORAL ARGUMENT OF HON. EDWARD J. PHELPS. 
 
 left out, and I may have to recur to that again to-morrow. I will only 
 point out now what the character of this Legislation is. 
 
 This region in the open sea is embraced in the area lying between the parallels of 
 67° and 75° north latitude and the meridians of 5° east and 17° west longitude from 
 Greenwich. These fisheries were made the subject of legislative regulation, appli- 
 cable to their own subjects, by the Governments of Great Britain, Sweden and Nor- 
 way, Russia, Germany, and Holland, by a series of statutes passed by these several 
 countries during the years 1875, 1876, 1877, and 1878. The 3rd of April is estab- 
 lished as the earliest date each year on which the seals could be legally captured, 
 and penalties are fixed for a violation of the prohibition. 
 
 That shows the protection it has been found necessary by those 
 Governments to extend over a portion of the sea, so very large that no 
 one Government could undertake to assume it, because the water 
 washed equally the shores of others; and for Great Britain to have 
 said, "We will protect the seals clear across the north, up to the 
 coast of ]!forway", would be asserting to itself a right that Norway at 
 least might as well assert. The same with Holland; the same with 
 Eussia; the same with Belgium; the same with Germany, The conse- 
 quence is that those Nations, wisely enough, entered into an Agreement 
 by which they should all pass Statutes ; but when they have all passed 
 Statutes, how far have they reached an American, for instance ? 
 
 America has adopted no such Statute; France has adopted no such 
 Statute as far as I know. 
 
 Suppose an American or a French vessel sails up into these Seas and 
 says "We will capture these seals, in a close time even, although it 
 amounts to an extermination ; we care nothing for your Statutes. Half a 
 dozen nations can no more adopt a Statute that shall reach our citizens 
 than one nation can"; and that is quite true. The Statutes derive no 
 force, as against any other nation, by the participation of various coun- 
 tries in passing them, excepting only that each country which adopts 
 such a Statute excludes its citizens by agreement from participating in 
 the Fisheries. But suppose, I repeat, an American vessel is fitted out 
 and starts for these Jan Mayen Fisheries in defiance of all this, on the 
 high seas, is there any power of defense, or must all these nations 
 stand back? If somebody from Nantucket in Massachusetts thinks 
 proper to fit out a poaching expedition to go and destroy those seals in 
 the breeding time, — is there any redress? Would that be permitted? 
 What would be the usage and custom of nations in regard to this? 
 
 Senator Morgan. — I may say the point I was trying to settle in my 
 own mind was, I did not know how it was ; whether either of thesenations 
 that entered into this Convention had any piece of land or piece of terri- 
 tory within the area of latitude and longitude which had been covered 
 by the Convention upon which these seals were in the habit of resort- 
 ing and have made a home, or was it simply the open sea? 
 
 Mr. Phelps. — There is no such place to my knowledge. It is the 
 open sea that they cover. Where these seals have their rookeries, that 
 is to say if they have rookeries, I do not know, and I am not aware of 
 any evidence in the case that discloses it. 
 
 Senator Morgan. — It is the floating ice, I understand. 
 
 Sir Charles Eussell.— Yes; in the North Atlantic, if not exclu- 
 sively, at all events chiefly, — apparently on the floating ice. 
 
 Mr. Phelps. — I assumed so, because the area comprised by this lati- 
 tude and longitude is only Ocean, and as far as I am aware embraces no 
 land at all. 
 
 Senator Morgan. — It was an exercise of jurisdiction by Convention 
 over a part of the sea where there was no land at all? 
 
ORAL ARGUMENT OP HON. 
 
 Mr. Phelps. — Yes, and where either nation has no right tcMeg 
 except against its own subjects. And when various nations '^f^uf^^l';^ 
 they do not make the case any stronger against a non-concurring nSfcieB—" 
 than it would be if only one nation legislated. What 1 am upon is, what 
 is the usage and custom of mankind"? And if you have, in the pursu- 
 ance of the duty you have undertaken of deciding these questions, 
 to ascertain whether the freedom of the sea extends to this business, 
 and what is the general sense and sentiment and opinion of mankind 
 ill reference to it, this is among the instances from which you derive 
 the sense of mankind. There is the action of these nations over a 
 part of the high sea, expressing what? Their belief that protection 
 of this sort is necessary in the free open sea, even of those animals which 
 do not attach to any territory, have no home and no resort, and which 
 no nation is making a husbandry of on its own territory at all. 
 
 Now I was about to remark as to a question put by me before the recess, 
 as to what would take place in these waters" outside of the three-mile 
 limit covered and protected, or where the G-overnment had covered and 
 protected, as far as they could, the animal life — the fish or oysters, what- 
 ever it may be — what would take place if a vessel of some other nation, 
 notwithstanding that, sails into this area and says "I am on the high 
 sea — 1 will take these flish and care nothing for your Statute or Regula- 
 tions, and care nothing about what the consequence is." What would 
 take place? 
 
 " War" says the learned President, and in answering that question 
 in that way he touched the very point of this whole subject. What will 
 take place? The force of that nation will repel that aggression — that 
 nation will put a stop to that infringement of its rights and of those 
 instructions. Then if the nation to which this invading ship belongs 
 chooses to take the matter up, why it may or may not result in war. 
 There are such things as just causes of war recognized in international 
 law. If any nation should rise up and say if a predatory schooner of 
 one of our subjects goes up on to your coast in defiance of your Laws and 
 Regulations to exterminate there a fishery industry and you repel it by 
 force we will go to war, then it would stand in the judgment of mankind 
 how far it could maintain that proposition. It would be force in the 
 place of war. I would use the word " force ". 
 
 Well now when the United States put aside the right which in my 
 judgment it ought to have exercised, and refers it to this Tribunal, what 
 is the question that is referred? Is it not what would the United States 
 have been justified in doing for itself. The Award of this Tribunal 
 should give to the United States all they would have if they exercised 
 this right for themselves. That perhaps comes under a little later branch 
 of my Argument which more strictly deals with the subject of self- 
 defence than this does on the question of a property interest with which 
 I am now dealing. 
 
 The President. — It is a very interesting and ingenious exposition of 
 your views, but that is not quite an answer to another question on 
 which I should like to hear you, and which you put a few minutes ago : 
 what would happen in the case of the Jan Mayen Convention if an Amer- 
 ican boat was fitted out and was to interfere? You put the question, 
 but did not give us an answer. I would like to know your view, whether 
 the American government, not being a party to this Convention, would 
 stand exactly by the same obligations and have the same rights as those 
 other Grovernments which have been parties to the Convention. You 
 understand my meaning? 
 
102 OKAL ARGUMENT OF HON. EDWARD J. PHELPS. 
 
 Mr. Phelps. — Certainly, Sir, and while the answer will come in 
 appropriately a little later I am very glad to have the question put now; 
 I can answer it as well now as at any time. 
 
 There the case arises where these Governments are entitled to pro- 
 tect themselves against an aggression which is destructive to their 
 valuable industry, and which is without any warrant except the profit 
 that can be made out of it — except the profit to be made out of it by 
 the invading individual. That is a subject I shall deal with by and by. 
 
 Lord Hawnen. — And would have equal force if only two made such 
 a convention. 
 
 Mr. Phelps. — If only two or only one, provided always that the one 
 which makes it has a specific right growing out of its territorial interest, 
 to make it. 
 
 I do not mean to say that one nation or half a dozen can control the 
 open sea without any other cause than its interest in the open sea 
 which every body else has alike. I do not mean to say that. I mean 
 to say when the interest is attached to the territory and is in the terri- 
 tory — the source of a valuable husbandry, an interest by which a valu- 
 able animal is preserved coming within the purview of the case that I 
 have been discussing, there the Government has a perfect right to repel 
 by force, as it would, as it ought and as it always has, any invasion 
 of it. 
 
 Then applying that to this larger area where several nations have to 
 combine to protect this interest, although perhaps it does not attach 
 itself to the shore of either of them, I should say that the nations united 
 would have the same right of protection they would have if standing 
 alone, if the husbandry was peculiar and the interest was particular to 
 its own country; but it is not necessary for us in this case to go so far. 
 The question involves the discussion of rights further out at sea, and 
 separated from the particular territory of the nation. 
 
 1 am not prepared at this moment to say as a matter of fact how far the 
 hair seal fishery is protected by this legislation under the convention of 
 various countries. Here is an interest like the whale fishery, which is 
 pursued exclusively in the open sea, which attaches itself to no terri- 
 tory, and is the basis of no industry, of no protection. It is a right 
 that all mankind share in common. Then, when you come to interfere 
 with that in the open sea, by the concurrence of several nations, it may 
 well follow that only the subjects of nations so concurring are bound 
 by that. Why? Because no one of them has a greater right of pro- 
 tection than anybody else has; but the moment, instead of being a 
 pursuit that is in the opfen sea, it attaches itself to the territory and 
 becomes appurtenant to it, and is there made the foundation of a 
 husbandry, and there protected, and is there preserved from extermi- 
 nation, and there statutes of that sort are applied, then it comes within 
 the doctrine of self-defence, that I shall allude to by and by, of the 
 nation itself, whether it is made the subject of concurrent regulations 
 and statutes of various nations, or whether it stands alone. As if, for 
 instance, Eussia had joined with the United States, as it would have 
 joined if Great Britain had, when the settlement of this question was 
 first made in England in 1887; suppose Eussia and Great Britain and 
 the United States, the three countries principally interested, owning 
 all the territory that approximated to these waters — all the shores 
 that are washed by these waters — suppose they had joined together. 
 Technically, you may say the case is no stronger than it would have 
 been on behalf of each nation protecting its own industry, as if each 
 
OEAL ARGUMENT OF HON. EDWAKD J. PHELPS. 103 
 
 had separately legislated on the subject. But in another view of the 
 case it might have been regarded as proper. — 
 
 Senator Morgan.— In asking the question I did, and which was 
 for information, I did not have in my mind the running out of these 
 principles into the serious results which have been discussed, and 
 which are not within our purview or even within the purview of our 
 contemplation. 
 
 I was looking at the question as to the value of these arrangements 
 between these Great European Powers as a precedent on the subject ol 
 regulations that might be adopted by this Tribunal, affecting the rights 
 of Great Britain and the United States on the Pacific Ocean. 
 - Mr, Phelps. — It undoubtedly has an important bearing on that 
 branch of the case. But aside from the question of regulations, there 
 is no doubt at all that it has an important bearing, on the other ques- 
 tion, of the character of the conduct which is sought to be justified 
 here, whether it comes within the legitimate freedom of the sea or not, 
 as shewing what the seuse of mankind is upon that subject. It is 
 principally in those two connections that we have cited it, not because 
 it is in other respects at all analogous to the case that we have in hand. 
 
 The UrugTiay protection provisions will be found on page 449 of the 
 Book I have been reading from, the 1st United States Appendix, and 
 includes the Lobos Islands, where there are still, as we learn from the 
 testimony of the furriers, seals enough to afford a small annual profit, 
 not large commercially, but still appreciable. This comes from the 
 custodian of the Archives at Montevideo : 
 
 I have to inform you in compliance -witli the foregoing decree, that the taking of 
 seals on the islands called Lobos, Polonio, Castillos Grandes, and Coronilla, on the 
 coasts of the Rio de la Plata, and in that part of the Ocean adjacent to the depart- 
 ment of Maldonado and Rocha is done by contractors who obtain their contract for 
 periods of ten years each paying annually into the public treasury seven thousand 
 dollars in gold, and also the departmental duty of twenty cents on each seal-skin 
 and four cents on each arroba of oil. 
 
 A very similar arrangement to that which the Government of the 
 United States asks. 
 
 This duty was established (and provision made for the object to which it was to 
 be applied) by the Act of July 23rd 1857, and that of June 28th 1858, (Caraira, vol- 
 ume I, pages 440 and 448, Digest of Laws). The State guarantees to the contractors 
 that they shall carry on their industry without molestation. It does not permit ves- 
 sels of any kind to anchor off any of the said islands, and does not allow any works 
 to be constructed that might frighten the seals away. The catch begins June 1st 
 and ends October loth (Decree of May 17th 1876, page 1480 of Laws now in Force, 
 by Goyena). This is all that the undersigned has to communicate. God guard you 
 many years. 
 
 It is under that provision that the few seals left on the Lobos Islands, 
 (and some of the witnesses tell you what has become of the race that 
 was there in great numbers formerly,) are preserved. Anyone who 
 supposes that an individual can fit out a ship, to go down there and 
 destroy those seals out of the three mile line to the extent of extermin- 
 ation, would probably find out his mistake. ISTobody has attempted it. 
 Lobos Island used to be free plunder for seals till the seal was almost 
 exterminated, and since then the extermination has almost stopped? 
 Why is that? The sealers belong to other nations, not to Uruguay. 
 The sealers come from America largely. What has put a stop to it? 
 Why, the knowledge that it is forbidden and would not be tolerated; 
 and it would not be safe for anybody to take them. 
 
 The Presibent. — There is nothing here against Pelagic Sealing. 
 
104 ORAL ARGUMENT OF HON. EDWARD J. PHELPS. 
 
 Mr. Phelps. — I am aware of it. I do not know how far the sealing 
 was pelagic at the Lobos Islands ; but it is such protection as the case 
 requires; in the anchoring of vessels off there the three mile limit is 
 not observed, and it is very apparent under the eflfect of the Statute 
 which the Chief Clerk furnishes (he does not send the full Act) — no act 
 would be permitted to be done by foreigners which would tend to exter- 
 minate those seals, whatever it was; — it might be pelagic sealing; and 
 it would be no answer to say if a vessel were to go and anchor outside 
 the three mile line and take any measures that would tend to destroy 
 the seal, — it would be no answer to the Government to say they were 
 outside the line ; nor is there a geographical limit to the Act in question. 
 
 The case of Chile and the Argentine Eepublic Statutes will be found 
 on page 229 of our Case : 
 
 The Lobos Island rookeries have for over 60 years been protected by the Govorn- 
 ment of Uruguay. 
 
 And the return comes, as the Furriers testify, into the London market. 
 
 The Governments of Chile and the Argentine Republic have also recently given pro- 
 tection to the fur-seals resorting to their coasts in the hope of restoring their almost 
 exterminated rookeries. 
 
 In the second United States Appendix is a deposition on that point 
 fi-om a sealer I believe at page 597. 
 
 Sir Charles Eussell. — The Chilian law is expressly stated to be 
 territorial. 
 
 Mr. Phelps. — This is the deposition of George Cower. He is a resi- 
 dent of East Haddam Connecticut, and has been engaged in sealing in 
 the southern hemisphere for a number of years and has visited all these 
 places, and speaks of visiting these islands. He says: 
 
 About 1850 this island was visited by an American who practically cleaned off the 
 seals. The captain I shipped with Joseph Fuller visited the island in 1880 and took 
 3,600 seals practically all there were; and this was their increase for the 80 years 
 from 1850. While I was at Cape Town I saw a gang start out for sealing on that 
 coast; the rookery I understood to be about 25 miles from Cape Town. 
 
 They are in the possession or control of a Company, as I was then informed, which 
 has the exclusive right to take seals there. We did not dare go to those rookeries 
 because sealing was prohibited and we would not have been allowed to taKe them 
 in the waters adjacent thereto. Argentina also claimed possession of Staten Laud at 
 Cape Town and since about 1882 or 1883 we have not been allowed to take seals at 
 that point or in the waters near there, although the citizens of Argentina themselves 
 have taken seals there every year as I understand and believe. 
 
 That is all on that subject. It is simply to show the extent of this 
 protection. 
 
 The enactments of Japan are in the first United States Appendix, 
 page 449, and it is a prohibition entirely for the present, is general in its 
 terms, and simply shows the necessity for the protection in the judgment 
 of that government, and the protection that it received. 
 
 Now 1 come to the ground taken by Eussia in the possession and pro- 
 tection of these Commander Island Fisheries, in respect of which a good 
 deal has been said by my friends on the other side — I do not mean the 
 ancient protection — I mean the present protection — ^t^e recent protection 
 of the Commander Islands. ' 
 
 Senator Morgan. — Do they differ — the ancient and the present? 
 
 Mr, Phelps. — They do not differ, but I mean I will deal with the cir- 
 cumstances of the recent protection. I hope to show that they do not 
 differ from what has always been enforced by the Eussian Government. 
 Now in reply to what is said in the printed Argument of the United 
 States in reference to what is called there "the firm and resolute action 
 
ORAL ARGUMENT OF HON. EDWARD J. PHELPS. 105 
 
 of the Eussian Government in seizing several vessels", — Canadian ves- 
 sels I believe — perhaps one of them was an American — which were 
 engaged in sealing, my friend Sir Charles Kussell refers to a correspond- 
 ence with Secretary Prelinghuysen in 1882, and Secretary Bayard 
 in 1887. That would not at first sight be particularly apposite to the 
 seizures that took place in 1892, especially as those seizures were prin- 
 cipally of British vessels, and this correspondence appears to have been 
 with a former Secretary of State of the United States. No man is so 
 fertile in that special recourse of advocacy which transfers the dis- 
 cussion of a question to a different subject, as my learned friend Sir 
 Charles Russell. He answers what is said about 1892 by a reference to 
 a controversy on an entirely different subject several years before; and 
 it is not difficult to make such an answer quite successful, because you 
 get rid of the exact conditions under which the question arises in the 
 case in hand; and therefore if the case presents any difticulty it can 
 sometimes be successfully met by discussiag another case that stands 
 upon a different footing. 
 
 Now what was this correspondence in 1883 and 1887? It had noth- 
 ing to do with the taking of seajs. It was in reference to the whale 
 and cod fishing and the trade in arms and liquors with the natives on 
 the Eussian Coast. Now I respectfully ask : What has that to do with 
 the seizure of Sealing vessels in 1892? The San Francisco firm which 
 made the complaint upon which Secretary Frelinghuy sen's representa- 
 tion to the Eussian Government was presented, state explicitly that 
 they have nothing to do with the taking or purchase of furs, in their 
 complaint of the action of the Eussian Government — they take care to 
 clear themselves from the embarrassment of having it supposed that 
 they are interfering with the sealing. Then all that was said on that 
 subject had reference to an entirely different controversy. Lynde and 
 Hough's note to Mr. Folger who was the Secretary of the Treasury, is 
 the foundation of that controversy, which I shall pursue just far 
 enough to show that it has nothing whatever to do with any question 
 in this case. I read now from page 18 of Part 3 of Volume II of the 
 Appendix to the British Case. This letter is dated San Francisco, 
 February 15th 1882: 
 
 Sin: Tou will please pardon us for this seeming intrusion, but the matter in which 
 we now seek your aid and kind assistance is of great importance to ns. 
 
 We now are and have heen extensively engaged in the Pacific Coast Cod fisheries, 
 and, in fact, are among the very few who fifteen years ago started in a small way, 
 believing with energy and fair dealing we could work up an enterprise that would 
 be a benefit to the coast. Our ideas were correct. We have been yearly sending 
 vessels to the coast of Kamtchatka (Sea of Okhotsk) for fish. 
 
 We never have been molested in Eussian waters from catching cod-fish or procur- 
 ing bait, which are small salmon in the rivers, or filling fresh water for the use of 
 ship, but it appears now there is a law which has never been enforced against for- 
 eigners, the same we have recently noted, and which we have been apprised of, and 
 the substance is that foreign vessels must receive an order Irom the Governor of 
 Siberia, besides must pay a duty of 10 dollars per ton on all fish caught in Russian 
 waters. This decree, if sustained, is ruinous to one of thebest and rising industries 
 of the coast, and as we fit our vessels to sail about the 1st May, leaves us but 
 little chance to arrange matters this season save with your kind assistance in the 
 matter. Our business is fishing entirely. We do no trade with natives, having 
 nothing to do with the taking or purchasing of furs. At this time we are placed in 
 a very bad predicament. Trusting that you can relieve us from this embarrassment, 
 and receive an early reply on the subject, we are, etc. 
 
 (Signed.) Lynde and Hough. 
 
 P. S. — Our vessels fish from 10 to 55 miles from shore. 
 
 L. AND H. 
 
106 ORAL ARGUMENT OF HON. EDWARD J. PHELPS. 
 
 That is the foundation. The correspondence with Mr. Hoffman from 
 St. Petersburgh (who I believe was Oharg6 d'Affaires at that time), is 
 based upon this letter. I need not read through this correspondence. 
 It follows here in the British Case. There are several letters and 
 finally there is one (on page 19 of the 3rd Part of Volume II of the 
 Appendix to the British Case), from M. de Giers to Mr. Hoffman dated 
 May 8 (20), 1882, in which he says: 
 
 This measure 
 
 that is, the measure that was complained of by the merchants or ship- 
 pers that I read from just now — 
 
 this measure refers only to prohibited industries and to the trade in contraband; 
 the restrictions which it establishes extend strictly to the territorial waters of Rus- 
 sia only. It was required by the numerous abuses proved in late years and which 
 fell with all their weight on the population of our sea-shore and of our islands, 
 whose only means of support is by fishing and hunting. These abuses inflicted also 
 a marked injury on the interests of the Company, to which the Imperial Govern- 
 ment had conceded the monopoly of fishing and hunting ("exportation "J in islands 
 called the "Commodore" and the "Seals", 
 
 Now passing that for the present (with the privilege of referring to it 
 again tomorrow morning), you will find the view of the Eussiau Gov- 
 ernment as to pelagic sealing — (we are going back to the case of 1892) — 
 in the United States Appendix, Volume I, page 192 — in a letter enclosed 
 by Mr. Lothrop the Minister at St. Petersburgh to Mr. Bayard, secre- 
 tary of State, on the 8th December 1887, which I read to the Tribunal 
 on the first day I was addressing you. 
 
 Now until 1892 the sealing industry on the Commander Islands, 
 maintained by the Government of Eussia, was not attacked. Up to 
 that time there had been no pelagic sealing, I infer, that was particu- 
 larly mischievous to the Eussiau Government; and the British Com- 
 missioners at page 167 of their Eeport remark, referring to the Eussian 
 seal herd in its migrations to the Eussian seal islands: 
 
 It is a matter of some surprise that no attempt is made to take them in the open 
 sea, as is done on such a lar^e scale in the case of the seals resorting to the breeding 
 grounds of the eastern portion of Behrlng Sea. 
 
 Sir EiCHARD Webster. — That is not the British Commissioners 
 Eeport. 
 
 The President. — Is that the right reference? 
 
 Mr. Phelps. It is published in their report. It is a report — I was 
 wrong in saying it was the British Commissioners' Eepoi't. 
 
 Sir EiCHAED Webster. — It is in answer to enquiries that were 
 asked for. 
 
 Mr. Phelps. — It is a Eeport made by the British Secretary of Lega- 
 tion in Japan at the request of the British Commissioners dated T6ki6, 
 November 19th 1891. 
 
 Lord Hannen. — Where is it to be found. 
 
 Mr. Phelps. — At page 167 of the British Commissioners Eeport, or 
 of the Appendix or Addendum to the British Commissioners Eeport. 
 It is the Eeport, I repeat, of the British Secretary of Legation in Japan 
 in reply to the British Commissioners and published by the Commis- 
 sioners. It is not their own language but it answers sufficiently to 
 show the fact. 
 
 Then when the modus vivendi in 1892 was in force to a greater or less 
 extent, a great number of vessels resorted for the first time to the 
 vicinity of the Commander Islands, and then took place the seizures 
 by Eussia of those vessels — seizures which they had never had occa- 
 sion to make before because they had never been attacked, and which 
 
OEAX ARGUMENT OF HON. EDWARD J. PHELPS. 107 
 
 were made then, and have been the subject of so much observation — 
 very properly — by my learned friends in their Argument. And as I 
 have something to say upon that point that it would be quite impossible 
 to conchide at this late hour, with the permission of the Tribunal I 
 will defer it until tomorrow morning. 
 
 The President. — If you please; It is a very interesting subject. 
 We will hear the rest tomorrow. 
 
 [The Tribunal thereupon adjourned until Thursday the 29th of June 
 1893 at 11.30 a. m.l 
 
FORTY-SEVENTH DAY, JUNE 29™, 181J3. 
 
 lu pursuance of Senator Morgan's enquiry of yesterday, I read a few 
 words on the subject of the hair-seals from the 1st Volume of the United 
 States Appendix to the Case, page 367. It is a part of Dr. Allen's 
 Article on the natural history of these animals, which has been fre- 
 quently alluded to. 
 
 The great tribe of PiiinipedB is divisible into three quite distinct minor groups 
 termed families, namely, the -walruses (family Odobenidce), the eared-seals (family 
 Olariidw), and the common or earless seals (family Phooidce). Tliese groups differ 
 notably from each other in many points of structure. 
 
 Then passing over to page 381 of the same book: 
 The seals proper, or the hair-seals 
 
 This writer classes the hair-seals as the seal proper- 
 
 Have no external ears, are short-necked, rather thick-bodied, and have tie hind 
 limbs permanently directed backward and useless for terrestrial locomotion. They 
 vary greatly in size, and so forth. 
 
 Tlie seals (that is to say, this variety of seals, those that he calls " seals proper "), 
 unlike the walruses and eared-seals, are of almost worldwide distribution, being 
 found on the coasts of nearly all countries, except within the tropics; they also 
 ascend many of the larger rivers for long distances, and occur in some of the inland 
 seas, as the Caspian and others in Asia. 
 
 Then further down : 
 
 Seals, as a rule, are not polygamous, "(referring, of course, to the Phocidce, these 
 hair-seals)", and resort to the land or ice fields to bring forth their young, according 
 to the species. They are also more or less migratory. 
 
 Then in respect to the Harp-seal (on page 382 of the same Article) 
 which is a different species, classed as the Fhoea groenlandica, by this 
 writer. 
 
 BahUat: North Atlantic, from the Gulf of St. Lawrence and the North Sea north- 
 ward to the Arctic Sea; also Behring Sea. 
 
 The harp-seal, known also as the saddle-back, white-coat (when young), Greenland 
 seal, etc., is by far the most important commercially of all the true seals, being the 
 principal basis of the Newfoundland and Jan Mayen seal lisheries. 
 
 It is preeminently gregarious, migratory, and pelagic. It is nowhere a permanent 
 resident, and annually traverses a wide breadth of latitude. Although often met 
 with far out at sea, it generally keeps near the edges of drifting ice. It appears 
 never to resort to the land, and is seldom found on firm ice. 
 
 About the beginning of March, they assemble at their favorite breeding stations, 
 selecting for this purpose immense ice fields far from land. Their best known 
 breeding grounds are the ice packs off the eastern coast of Newfoundland and about 
 the island of Jan Mayen. Off the Newfoundland coast the young are chiefly bom 
 between the 5tli and 10th of March ; at the Jan Mayen breeding grounds between 
 the 23rd of March and the 5th of April. 
 
 The females take up their stations on the ice very near each other, the young being 
 thus sometimes born not more than 3 feet apart. The males accompany the 
 females to the breeding stations and remain in the vicinity, congregating mostly in 
 the open pools between the ice floes. The mothers leave their young on the ice to 
 fish in the neighborhood for their own subsistence, but they frequently return to 
 their young to suckle them. The young grow very rapidly, and when three weeks 
 old are said to be nearly half as large as the old ones. 
 
 The young are said not to voluntarily enter the water until at least twelve days 
 old, and that they require four or five days practice before they acquire sufficient 
 strength and proficiency in swimming to enable them to care for themselves. 
 
 108 
 
ORAL ARGUMENT OF HON. EDWARD J. PHELPS. 109 
 
 There is much more information in this article if anyone cares to 
 peruse it; but I will not take time to read farther. 
 
 On yesterday, in commenting upon what had been said by my learned 
 iriends on the other side in regard to the attitude of Eussia, I found 
 myself destitute at the moment of the reference I desired to make show- 
 ing that the seizures of American vessels referred to by my learned 
 Mend Sir Charles Eussell, the "Eliza" and "Henrietta", were the sub- 
 ject of a correspondence between the Eussian Government and the 
 United States Government, and had nothing at all to do with the busi- 
 ness of seal hunting. And I will now read, as it is not long, Mr. 
 Lothrop's letter, the Minister of the United States at St. Petersburg, 
 written in 1887 to the Secretary of State, in which he gives concisely 
 the whole facts in regard to those vessels and shows very clearly that 
 it had nothing to do at all with the subject on which we are engaged. 
 This is page 22 of volume 2, part 2, of the Appendix to the British Case : 
 
 I have the honor to transmit to you a translation of a communication received 
 from the Imperial Foreign Office on the 1st February instant, relative to the seizure 
 of the schooner "Eliza." The Russian Government claims that she was seized and 
 condemned under the provisions of an Order or Regulation, -which took effect at the 
 beginning of 1882, and which absolutely prohibited every kind of trading hunting 
 and fishing on the Russian Pacific coast without a special licence from the Governor- 
 General. 
 
 It is not claimed that the "Eliza" was engaged in seal fishing, but that she was 
 found engaged in trading with the contraband articles of arms and strong liquors. 
 
 She was condemned by a commission sitting on the Imperial corvette "Rasljoinik" 
 composed of the officers thereof. In this respect the case is precisely like that of the 
 "Henrietta" mentioned in my last preceding despatch No. 95 and of this date. 
 
 It will be noticed that Mr. Spooner, the owner of the Eliza, in his statement of his 
 claim, declares that the "Eliza" was "on a trading voyage, engaged in bartering 
 with the natives, and catching walrus, and as such did not come under the Notice of 
 the Russian Government, which was directed against the capture of seals on Copper 
 Robben and Behring Islands". 
 
 It will be seen that Mr. Spooner either refers to an Order of the Russian Govern- 
 ment different from the one mentioned by the Imperial Foreign Office, or he under- 
 stood the latter in a very different sense. 
 
 I may add that the Russian Code of Prize Law of 1862, Article 2, and now in force, 
 limits the jurisdictional waters of Russia to 3 miles from the shore. 
 
 As stated in my previous despatch, I have asked for a copy of the Order or Regula- 
 tion under which the "Henrietta" and "Eliza" were seized and condemned. 
 
 It is seen therefore by the statement of the American Minister in 
 regard to the claim of his own country, that the grounds on which these 
 vessels were seized were, that they were violating the Order against 
 trading with the natives, especially in fire-arms and spirituous liquors, 
 and the seizure by the Eussian Government was submitted to therefore, 
 by the United States Government, and the claims for compensation if 
 made were not insisted upon. 
 
 Now I come, as I am nearly through with what I may call the historic 
 instances of the protection of property of this description, to the recent 
 transactions, so recent that they have come before you by papers sub- 
 mitted by my learned friends since the argument was finished on their 
 side, or nearly so; at any rate at a late stage in the argument. They 
 have submitted two Parliamentary papers, Eussia No. 1, 1893, and 
 Eussia, 'So. 3, 1893, on this subject, printed after being laid before Par- 
 liament ; and my learned friends seem to be of opinion that what we had 
 said in the argument in respect of the firm and resolute action of Eussia 
 on this subject is refuted to some extent by the correspondence that is 
 shown to have taken place between the Governments in reference to that 
 action. On the cbntrary, in my judgment the position taken in the 
 argument is exactly confirmed by the correspondence, as I shall try to 
 point out, reading fcom the Parliamentary paper, No. 1, in the first place, 
 
110 OEAL ARGUMENT OF HON. EDWARD J. PHELPS. 
 
 page 11, the letter of Mr. Chichkine. I read from the translation of it. 
 The correspondence contains the letter in French and the translation 
 as well. It is addressed to the British Ambassador, and is dated the 
 12th February, 1893. Of course, I shall not read all these letters but 
 only such extracts as bear on the points I am concerned with. 
 
 While thanking you, Mr. I'Ambassadeur, for this action, of which the Imperial 
 Government takes note, I hasten to inform yon that the question of the measures to 
 be adopted to prevent the destruction of the seal species Las been under considera- 
 tion for some time past, and that 1 have been obliged to await the preliminary results 
 of this investigation before replying to the note which you were so good as to address 
 to me. 
 
 In approaching, on the present occasion, the question of the seal fisheries, I must 
 first of all point out to your Excellency that the insufficiency of the strict applica- 
 tion to this matter of the general rules of international law respecting territorial 
 waters has been proved by the mere fact that negotiations were commenced in 1887 
 between the three Powers principally, with the object of agreeing upon special and 
 exceptional measures. 
 
 That was, as you will readily perceive, with reference to the negotia- 
 tion initiated by Mr. Bayard. 
 
 The necessity for such measures has been more lately confirmed by the Anglo- 
 American agreement of 1891. 
 
 That is the modus vivendi. 
 
 Her Majesty's Government, by taking part in these negotiations and in this Agree- 
 ment, have themselves admitted the propriety of a possible departure from the general 
 rules of international law. 
 
 That is, as I understand it, the rule he has just referred to respecting 
 territorial waters, the 3 mile limit. 
 
 A further point to which it would seem important to call the special attention of 
 Her Majesty's Government is the absolutely abnormal and exceptional position in 
 which Russian interests are placed by the stipulations of the Anglo-American Agree- 
 ment. The prohibition of sealing within the limits agreed upon in the modus vivendi 
 of 1891 has, in fact, caused such an increase in the destruction of seals on the Rus- 
 sian Coast, that the complete disappearance of these animals would be only a ques- 
 tion of a short time unless efficacious measures for their protection were taken without 
 delay. 
 
 Then. 
 
 The number of seals to be killed annually is fixed by the Administration in pro- 
 portion to the total number of seals. In the years 1889 and 1890, before the estab- 
 lishment of the Anglo-American modus vivendi, the catch amounted to 55,915 and 
 56,833, while for the years 1891 and 1892 (after the above-mentioned Agreement) the 
 figures fell to 30,689 and 31,315. 
 
 And in another and very different connection, the importance of this 
 experience will come to be seen. I do not pause to remark upon it now. 
 
 On the other hand, according to the statistical information which the Imperial 
 Government has been able to obtain, the quantity of seal-skins of Russian origin 
 delivered by the sealers to the London market, increased during those two years in 
 an infinitely greater proportion. 
 
 That is to say that under the operation of the modus vivendi which 
 precluded the pelagic sealers from the American part of Behring Sea, 
 while the supply of Russian skins increased in London, it so decreased 
 on the Islands that they had to fall from 50,000 to 30,000. 
 
 According to the observations made by the local Administration, the number of 
 vessels engaged in sealing and seen in the neighbourhood of the Commander Islands 
 and Tul^new (Eobben) Island has also increased considerably. The barbarous and 
 illicit proceedings of these sealers are also proved by the fact, established by sei- 
 zures, that more than 90 per cent, of the seal-skins carried aWay by them are those 
 of female seals, who are hardly, if ever, found far from the shore during the sealing 
 season, and whose destruction entails that of all the young which they are suckling. 
 
ORAL ARGUMENT OF HON. EDWARD J. PHELPS. Ill 
 
 The destructive character of the fishery is also shown by the number of seals 
 wounded or abandoned on the shore or within territorial waters, and afterwards 
 found by the local authorities. 
 
 It will be seen from this that the moment a check to a greater or less 
 extent under the modus vivendi was put on the pelagic sealers on the 
 American side, Russia was put precisely in the position in which we 
 stand to day; instantly the number of seals they were able to take on 
 their Islands fell off, though the Eussian skins in market increased. 
 Immediately it became apparent that part of this catch was females, 
 and when taken away, their young perished, and of those shot near 
 shore the greater part was probably lost or abandoned. 
 
 This is the passage we come to : 
 
 Under these circumstances, we think ourselves justified, M. I'Ambassadeur, in 
 expressing our entire confidence that Her Majesty's Government will admit the 
 urgent necessi fcy of restrictive measures pending the establishment of international 
 sealing regulations between the Powers principally concerned. 
 
 The Imperial Government on their side do not hesitate to recognize the fact that 
 protection cannot be carried out in a really satisfactory manner unless it is preceded 
 by some such agreement. Accordingly, they are disposed to enter into negotiations 
 at once with the Governments of Great Britain and of the United States of America ; 
 but they recognize at the same time the absolute necessity of immediate provisional 
 measures, both on account of the near approach of the sealing season and in order 
 to be in a position to reply in good time to the question contained in your Excel- 
 lency's note of the 11th (23d) January. 
 
 With this object, and after thorough investigation, the Imperial Government has 
 thought it necessary to decide on the following measures to be in force during the 
 year 1893 : 
 
 They do not say: "We ask the consent of Great Britain" or "we 
 propose this measure;" they say after pointing out the necessity: 
 
 The Imperial Government has thought it necessary to decide on the following 
 measures. 
 
 1. No ship unprovided with a special authorization shall be permitted to hunt for 
 seals within a distance of 10 miles along all the coast belonging to Russia. 
 
 2. This prohibited zone shall be 30 miles wide around the Commander Islands and 
 TuWnew (Robben) Island according to the Russian official maps, which implies that 
 the passage between the Commander Islands will be closed to vessels engaged in 
 sealing. 
 
 With regard to the 10-mile zone along the coast, these measures will be justified 
 by the fact that vessels engaged in the seal fishery generally take up positions at a 
 distance of from 7 to 9 miles from the coast, while their boats and crews engage in 
 sealing both on the coast itself and in territorial waters. As soon as a cruizer is 
 sighted, the ships take to the open sea and try to recall their boats from territorial 
 waters. 
 
 With regard to the 30-niile zone around the islands, this measure is taken with a 
 view to protect the banks, known by the sealers as " sealing grounds," which extend 
 round the islands, and are not shown with sufficient accuracy on maps. These 
 banks are frequented during certain seasons by the female seals, the killing of 
 which is particularly destructive to the seal species at the time of year when the 
 females are suckling their young, or go to seek food on the banks known as " seal- 
 ing grounds." 
 
 While requesting you, M. I'Ambassadeur, to bring the foregoing considerations to 
 the knowledge of Her Majesty's Government, I think it important to insist on the 
 essentially provisional character of the above measures adopted under pressure of 
 exceptional circumstances which may be regarded as a case of force majeure, and 
 analogous to case^of legitimate self-defence. 
 
 It does not, of course, enter at all into the intention of the Imperial Government 
 to dispute the generally recognized rules with respect to territorial waters, In their 
 opinion, far from attacking these general principles of international law, the meas- 
 ures which they think necessary to take must be regarded as confirming them, as the 
 exception proves the rule. 
 
 Here you have stated over again on the part of Eussia the American 
 case: 
 
 The force of the arguments set forth above will certainly not escape the enlight- 
 enfld appreciation of Her Majesty's Government, and I am firmly convinced that they 
 
112 OKAL ARGUMENT OP HON. EDWARD J. PHELPS. 
 
 will not refuse to take steps with regard to the English sealing-vessels, in accord- 
 ance with the measures which the Imperial Government propose to take for the year 
 1893. 
 
 On their side, the Imperial Government will not fail to give to these measures, in 
 good time, the publicity which they require. 
 
 Besides this, and in order to prevent as far as possible any misunderstandings and 
 disputes in case of infraction of the above provisional measures, as well as of the 
 general rules of international iaw, the oruizers of the Imperial Government and also 
 the local authorities will receive precise instructions, clearly laying down the cases 
 in which the right of pursuit, of search, and of seizure of offending vessels should 
 be exercised. 
 
 As it is affirmed that the sealing-vessels, while themselves remaining outside 
 territorial waters and sometimes more than 10 miles from shore, dispatch a portion 
 of their crews and their boats to the coast, and within, or very nearly within, terri- 
 torial waters, the above-mentioned instructions will prescribe the pursuit and 
 search of all vessels whose boats or crews shall have been observed or seized while 
 sealing on the coast, or within the zone prohibited by the provisional measures for 
 1893. 
 
 As a strong presumption results from the mere fact of the presence of boats near 
 the coast or within the prohibited zone, even when it has been impossible at first to 
 decide whether these boats were engaged in sealing or not, it shall be permissible to 
 pursue and search the vessels to which such boats belong. 
 
 The seizure, on board vessels thus searched, of special implements employed in 
 sealing on shore, as well as of seal-skins the greater part of which are those of 
 females, will constitute sufficient grounds for the seizure of the vessel, in view of 
 the fact that the female seals, during the season of suckling their young, rarely, if 
 ever, depart further than 10 miles from the shore, excepting on the banks around the 
 islands. 
 
 "When informing the captains of English sealing-vessels of the provisional meas- 
 ures drawn up for the year 1893, Her Majesty's Government will perhaps think it 
 advisable to communicate to them likewise a summary of the instructions which 
 will be given to the Russian cruizers, aad to add that the right of surveillance will 
 also be given to vessels belonging to the coast on the mainmast of which the Gov- 
 ernor of the Commander Islands hoists the Russian Custom-house flag when he is on 
 board in the discharge of his duties. 
 
 When I wrote those lines which my learned friends criticise, in which 
 I referred to the firm and resolute action of Russia, these words had 
 not been written. They completely confirm what I said, not by the 
 strength of what she has said, but by the strength of what she has 
 done, which was more emphatic. When Eussia finds herself, for the 
 first time in her history, in the position in which the United States 
 are now in respect of this business of pelagic sealing, excepting that 
 her interest is much smaller than that of the United States, what does 
 she do ? Invite Great Britain to enter into some modus vivendi by which 
 the depredations may be suspended? Far from it. She says " We are 
 ready and anxious to enter into the Triple convention between the three 
 nations concerned, proposed in 1887. We ag-ree in the propriety of such 
 a Convention, — we are most desirous for it; but in the meantime direc- 
 tions will be issued to the cruisers of the Eussian Government and to 
 all vessels hoisting the Custom House flag, to seize every vessel that is 
 found within 30 miles of the Islands or 10 miles of the shore, and to 
 search and examine any vessel, or the boats of any vessel, which hov- 
 ering round there, gives reasonable grounds for suspicion as to the bus- 
 iness they are engaged in." That is the position of Eussiaj and, if 
 that had been the position of the United States I repeat, this Arbitra- 
 tion never would have taken place. There is the difference. We had 
 invited the Convention and, as I pointed out to you, it had been con- 
 ceded and agreed upon and then was arrested by the objections of 
 Canada, They had participated in 1887, as the correspondence shows 
 you, in the same negociations and manifested the same willingness; 
 but when that fell through on account of the objection of Canada, Eussia 
 said: " in the meantime this infamous business is not to go on." That 
 was their position; and what is the consequence. The consequence ig 
 
OEAL AEGUMBNT OP HON. EDWARD J. PHELPS. 113 
 
 that while we are here at this late period begging of this Arbitration 
 some measure of protection that may preserve this herd of seals, they 
 obtained from the British Government instantly all that they claimed. 
 I refer you to Lord Eosebery's letter in reply. I say they obtained it as 
 a temporary measure; but see what follows? The Earl of Eosebery, 
 with the diplomatic skill for which he is so justly distinguished, writes 
 this sentence; and, if literature of this kind were ever amusing, one 
 might be excused for indulging in a smile on reading this. 
 
 The Earl of Eosebery to Sir E. Monier, that is the British Minister 
 at St. Petersburgh : 
 
 Sir: Her Majesty's Governmeut Uave given their most careful consideration to the 
 note of M. Chichkine of the 12tli (24th) ultimo inclosed in your Excellency's de- 
 spatch of the following day and stating the measures which the Russian Government 
 deem necessary for the protection of their sealing interests in the North Pacific dur- 
 ing the approaching fishery season and which are submitted to Her Majesty's Gov- 
 ernment with a view to their acceptance. 
 
 Then he repeats the measures I have just read. 
 
 Her Majesty's Government take note of the statements made in M. Chichkine's 
 note, that the Russian Government have no intention of disputing the generally 
 recognized rules of international law as to territorial waters, that these measures, 
 of an exceptional and provisional nature, are designed to meet a pressing emergency, 
 and that Russia is desirous of entering at once upon discussions with the Govern- 
 ments of Great Britain and the United States with a view to an agreement between 
 the Powers principally interested for the proper control of the sealing industry. 
 
 While Her Majesty's government have not committed themselves to a decided 
 opinion as to the absolute necessity of any particular class of regulation for the 
 preservation of the seal species, they have more than once expressed their willing- 
 ness to take part in the framing of a general scheme for the protection of the seals 
 which shall have due regard to the various interests concerned. 
 
 They quite recognize that the provisions of the modus vivendi agreed upon between 
 Great Britain and the United States tends to drive the sealing-vessels of both those 
 nations, which have been accustomed to resort to the eastern part of Behring Sea, 
 to the waters adjacent to the Russian coasts. 
 
 And so on. I need not read all that unless it is particularly desired. 
 Sir Charles Eussbll. — The next sentence I should be glad if you 
 would read. 
 Mr, Phelps. — I will read anything that is desired certainly. 
 
 Her Majesty's Government could not admit that Russia has therefore the right to 
 extend her jurisdiction over British vessels outside the usual territorial limits, but 
 they are anxious to afford all reasonable and legitimate assistance to Russia in the 
 existing circumstances. They are ready to enter at once into an agreement with 
 tho Imperial Government for the enforcement of the protective zones proposed in 
 M. Chichkine's note on conditions similar to those of their modus vivendi with the 
 United States, which it will be observed are of a reciprocal character. 
 
 That reads a little like accepting an invitation that has not been 
 issued. I find nothing in the note of Mr. Chichkine that invites from 
 Great Britain consent to these Eegulations. I find a courteous and 
 respectful notification that they will be propounded and insisted upon 
 and carried into efi'ect, with the expression of a confidence that Her 
 Majesty's Government will see the necessity and the propriety of them. 
 
 The result of the correspondence then, for I must not take up too 
 much time with this unless my learned friend desires me to read some- 
 thing more of it, is that the measures Eussia propounded are agreed 
 to, with the single addition that they will on the Islands refrain from 
 taking more than 30,000 seals. It had already appeared that for the 
 last two years they had only been able to get a little more than 30,000, 
 and that proposal of Great Britain they accept. Bat Mr. GLicRkme 
 appeared to take the view that I do of this invitation; and he replies 
 
 B S, PT XV- 
 
114 ORAL ARGUMENT OF HON. EDWARD J. PHELPS. 
 
 to Lord Eosebery most courteously to the effect tbat the acceptance of 
 the invitation is extremely pleasant, though he must point out to him 
 that it had not been given. 
 
 I cannot discuss the subject, Mr. I'Ambassadeur, without calling your attention 
 in the first instance to this fact, viz., that the object of my note of the (12th) of 
 February was to warn the British Government of certain legitimate measures of 
 defence necessitated for the moment by exceptional circumstances, and not to lay 
 down the basis of a regular modus Vivendi, that is to say, of a bi-lateral arrange- 
 ment, which might be prolonged until the question was definitively settled. 
 
 The only idea was to provide a minimum of protective measures, intended to pre- 
 vent the disappearance of the subject of the dispute, even before the negotiations 
 with regard to it were commenced. In view of the near approach of the fishing 
 season 
 
 If it had been intended to lay down basis of a modus vivendi of this kind, the 
 Imperial Government would not have failed to claim that a restriction of territorial 
 rights, that is to say, the engagement to limit the number of seals to be killed on 
 land, should in equity carry with it the corollary of a complete suspension of pelagic 
 sealing in the open sea. 
 
 He informs Lord Eosebery that, if the purpose of his communication 
 had been to enter into negotiations, he should have demanded very 
 different terms. The object of it was to inform the British Government 
 of the minimum of protective measures which they would accept. 
 
 They would have especially regarded it as indispensable to make their reservations 
 as regards the definitive settlement of the seal question, in order to retain their entire 
 freedom of view as to the measures to be agreed upon for the preservation of the 
 seal species, whether by the prohibition or regulation of sealing in the open sea, or 
 by the extension of special rights of protection of that species beyond the various 
 distances commonly designated as the limits of territorial waters. 
 
 Yet, after making these observations, I am authorized, Mr. I'Ambassadeur, to 
 inform your Excellency that the Imperial Government, being anxious to meet half 
 way any conciliatory offer on the part of the British Government, are ready to accept 
 the proposal made in Lord Rosebery's despatch, with the exception of some modifi- 
 cations on the first point. 
 
 That is, the limit of killing on the Islands; and a British agent is to • 
 be allowed to visit the Islands to see that that is complied with. 
 
 The arrangement agreed upon would have no retrospective force, because the dif- 
 ferent cases of seizures effected last year have been already examined by a special 
 Commission on the basis of the general principles of international law. 
 
 Finally, in regard to the first point of the proposal contained in Lord Rosebery's 
 despatch, 
 
 that is that any vessel seized should not be carried into a Eussian Port, 
 but should be handed over to a English cruiser, 
 
 The Imperial Government are of opinion that it would be quite impossible to 
 apply it as it stands, at any rate under the circumstances existing for the present 
 fishing season, especially as to the engagement to hand over to the ICnglish cruizers or 
 to the nearest British authority the English vessels caught trespassing outside terri- 
 torial waters within the forbidden zones of 30 and 10 miles. 
 
 It may be that means may hereafter be found by common consent to remedy the 
 practical difiiculties in the way of such an undertaking; but for the moment, there 
 is no doubt that it would completely paralyze the action of the cruizers of the 
 Imperial navy, and render illusory the supervision which they should exercise along 
 the coast and round the islands. 
 
 In practice, any Russian cruizer which had captured an English vessel would have 
 to choose between the alternatives of searching for an English cruizer, which might 
 take a long time, considering the extent of the coast, or else of undertaking a voyage 
 of 3,000 miles to conduct the captured vessel to the nearest port, that of Victoria in 
 Columbia. 
 
 The Russian cruizers would thus "be exclusively occupied in looking for the 
 English cruizers, or in making voyages to Port Victoria and back throughout tho 
 fishing season; and the "co-operation" of the cruizers of two nations could, there- 
 fore, only be a nominal one. 
 
 Under these circumstances, and without insisting for the moment on another 
 essential point — that of the absolute absence of reciprocity in the British proposal, 
 as there are not, nor can there be, any vessels under the Russian flag engaged in 
 sealing — the Imperial Government consider that for the current year it would be 
 
ORAL ARGUMENT OF HON. EDWARD J. PHELPS. 115 
 
 more simple and practical to submit the new prohibited zones, as is the case as 
 regards territorial waters, to the exclusive supervision of the cruizers of the Imperial 
 navy, who would continue to conduct to Petropaulovsk all vessels caught trespassing 
 until the conclusion of an ulterior agreement. 
 
 The correspondence proceeds; and that is the modus agreed upon for 
 one year only, reserving all rights to the Eussian Government, treating 
 this purely as an intermediate provision, the least, as they say, which 
 they could accept for their protection. 
 
 The President. — The enactment is not for quite a full year; it is to 
 the 31st of December. 
 
 Mr. Phelps. — You are quite right. It is not quite a full year. I 
 speak of it in general terms. 
 
 Then on pages 27 and 28, the last I have to read from this document, 
 is another letter from Mr. Ohichkine, and he says they preferred to 
 leave this subject on the basis of an exchange of notes, and not to draw 
 it up in the form of an agreement. 
 
 Because the too concise wording of the above-mentioned draft would leave room 
 for certain misunderstandings, and perhaps even for complications, which it would 
 be desirable to avoid; 
 
 Because the Imperial Government could not agree to the draft in question without 
 some reservations designed to safeguard their freedom of judgment iu the future. 
 
 It is understood that the agreement to be arrived at between our two Governments 
 will leave intact all the rights of Russia in her territorial waters. 
 
 As to our reservations, they refer to the points mentioned below: 
 
 1. In consenting to hand over to the British authorities the English ships engaged 
 iu sealing within tlie prohibited zones, we do not wish to prejudice, generally, the 
 question of the rights of a riverain Power to extend her territorial jurisdiction in 
 certain special cases beyond waters properly called territorial. 
 
 2. The Imperial Government desire to preserve complete liberty of action as to 
 choosing in the future between the two sj'stems of protecting seals, either by the 
 method of a prohibited zone, or by the method of entirely prohibiting pelagic seal- 
 ing, or regulating it in the open sea. 
 
 3. The present arrangement cannot in any manner be considered as a precedent, 
 . and will be loolted upon by us as of an essentially provisional nature, intended to 
 
 meet present circumstances. 
 
 With these reservations, we accept the British proposal in the following terms : 
 
 These are then repeated, which I need not take up your time by 
 reading again except the second and third (as they have been the 
 subject of some discussion) as they finally found expression: 
 
 English vessels engaged in hunting within the aforesaid zones. 
 
 That is, ten miles from that shore and thirty miles from the island: 
 
 Beyond Russian territorial waters may be seized by Russian cruizers, to be handed 
 over to English cruizers or to the nearest British authorities. In case of impedi- 
 ment or difficulty, the Commander of the Russian cruizer may confine himself to 
 seizing the papers of the afore-mentioned vessels, in order to deliver them to a 
 British cruizer, or to transmit them to the nearest English authorities, on the first 
 opportunity. 
 
 3. Her Majesty's Government engage to bring to trial before the ordinary Tri- 
 bunals, offering all necessary guarantees, the English vessels which may be seized 
 as having been engaged in sealing within the prohibited zones beyond Russian terri- 
 torial waters. 
 
 And that is agreed to. 
 
 Sir Charles Eussbll. — There is the final passage in Lord Eose- 
 bery's note: — "With regard to the reservation", on the same page. 
 
 Mr. Phelps. — This is from Lord Eosebery to Mr. Howard who, I 
 suppose, was the Charg^. 
 
 Sir Charles Eussell. — Yes. 
 
 Mr. I'HELPS. — 
 
 With regard to the reservations made in Mr. Ohichkine's Note, you will state that 
 Her Majesty's Government has taken note of them, but does not at present propose 
 to discuss them. 
 
116 ORAL ARGUMENT OP HON. EDWARD J. PHELPS. 
 
 There is nothing to discuss. No discussion had been invited. They 
 had been stated by the Eussiau Government as the measures to wliich 
 they proposed to resort. 
 
 That on the other hand they must adhere to the reservation previously made by 
 them and contained in your Note of the 12th of this month, and that it is understood 
 tbat the rights and position of either Power are in no way affected by the conclusion 
 of this provisional arrangement; 
 
 which is just what Eussia had said very emphatically. 
 
 Now I repeat, Sir, with great respect, was I right or not in forecasting 
 this correspondence which, as I have said, did not then exist, based 
 upon the action of Eussia, in characterizing her action as firm and 
 resolute, and in saying that in consequence of that firm and resolute 
 action, pelagic sealing had come to an end in the vicinity of these 
 Islands to any extent that was regarded as detrimental? Was I right 
 in calling attention to the different positions which these two great 
 nations occupy today on that subject? The United States deprived of 
 the benefit of a convention that had once been really agreed on, and left 
 to prosecute this claim before an Arbitration ; Eussia instantly accorded, 
 not what they asked, but what they notified Great Britain they should 
 insist upon, giving the reasons and grounds of the demand. If my 
 learned friend says the Eussian (jovernment, (as he did say in the course 
 of his observations) has the advantage of the advice of a gentleman of 
 large reputation in international law, I agree with him that there 
 could be no better evidence of it than this correspondence and its result 
 afford, that the Eussian Government knew in this matter precisely what 
 they were about, what they had a right to claim, and what it was neces- 
 sary for them to assert if they meant to defend or protect their interests. 
 
 Now we come to this No. 3. I shall not apologize for the time I am 
 taking upon this point, because it is important it should be understood. 
 
 The President. — Might we, Mr. Phelps, infer from your last words 
 that the agreement entered upon between England and Eussia would 
 in your eyes be considered sufficient for the protection of fur seals. 
 
 Mr. Phelps. — No, that is a very different question, to which, in a 
 later stage of the- argument, I will address myself. They got what 
 they demanded, the 30 mile zone and the 10 mile zone. They got 
 what they thought was sufficient. I mean for the temporary period. 
 Whether it was sufficient or not, that is to say, whether they were mis- 
 taken or not in the geographical limits in which they bounded their 
 right, is another question. 
 
 1 come now to this last correspondence, the purport of which is — and 
 I need hardly read anything from it — that on the Eeport of this Com- 
 mission Eussia made compensation to Great Britain or agreed to make 
 it, and I, of course, suppose will make compensation for two out of six 
 or eight vessels. 
 
 Sir EiCHARD Webster. — Five. 
 
 Mr. Phelps. — Well, out of five vessels that were seized, she has 
 agreed to make compensation for two, and it has been, if not directly 
 urged, left to be inferred that that amounted to a concession oii the 
 part of Eussia that she had no right to defend herself against these 
 aggressions outside the territorial limit, which, as you observe from one 
 passage in one of these letters I have been reading, is fixed as three 
 miles. It concedes nothing of the sort. Strong as my views are on 
 this question, I am free to say that if I had been upon the Commission 
 to determine as between Eussia and Great Britain whether those two 
 vessels or rather the owners of them must be compensated, I should 
 have decided as the majority of the Committee to which it was referred 
 
ORAL ARGUMENT OF HON. EDWARD J. PHELPS. 117 
 
 by Russia decWed. It is stated that the majority of the Committee 
 thought they should be paid. I should have been with the majority, 
 and why? Pelagic sealing never had been practised, as you see, prior 
 to 1892. On these Islands no statute existed on the subject which 
 would be notice to the world. Ko regulations had been promulgated. 
 No notice had been given. These vessels came across in the pursuit of 
 the business of pelagic sealing which they had been accustomed to 
 conduct with impunity on the other side, without any notice or warn- 
 ing or statute, and without crossing the territorial limits; these two 
 vessels that are paid for did not by themselves or their boats cross the 
 territorial line of three miles. That was not all. When they were 
 captured by the Eussian vessels, it does not appear that they were 
 engaged in pelagic seahng — they had been, but it nowhere appears that 
 they were caught flagrante delicto. But on examination it was found 
 by the contents of the vessels that they had been so engaged. 1 make 
 no account of the earlier correspondence given in the United States 
 Counter Case— the earlier claims on the part of the sealing caj)tains 
 that were captured of ill treatment by the Eussian officials, and the 
 confiscation of their personal property and the indignity that had been 
 put upon them. It is published in the Victoria News, rending from page 
 201 of the Counter Case Appendix, the head lines being: 
 
 Russian Piracy. — Sealers taken in the open sea. — Three Victoria craft 
 
 SEIZED AND THEIR CKBWS THREATENED WITH SIBERIA. — A FRISCO VICTIM ALSO. 
 
 Startling story of outrage, insult and pillage.— The captured crews turned heart- 
 lessly adrift. 
 
 That proves nothing. I take no account of that, because the cor- 
 respondence and the Eeport of the Committee, as far as it appears, does 
 not justify it. How much that entered into the case or how little I do 
 not know. The Eeport of the Committee is not here; the evidence is 
 not here; nothing is here except the result. The results of the Eeport 
 are stated in the letter of Mr. Chichkine to which I will allude in a 
 moment, in No. 3. General Foster reminds me that they had the affi- 
 davit in the Counter Case Appendix as to the locality where these 
 vessels were seized far out at sea, 30 or 40 miles. Now, even divesting 
 it of all these charges of special injury and unauthorized conduct, of 
 which we do not know whether they entered into the account or not, I 
 say upon the grounds that do appear, and this will become more clear, 
 I am sure, in what I shall have occasion to say hereafter, the payment 
 for the vessels was right. 
 
 Such regulations must first be necessary. Without that postulate, 
 you do not advance a step towards justification. No nation can stretch 
 out its hand on the high sea, at its own caprice, for its own convenience, 
 and lay hands upon the vessel of another nation sailing under its own 
 flag. Before that can be done, the measure must be shown to be nec- 
 essary; just as self-defence by an individual, which may go to the extent 
 perhaps of taking the life of the assailant in the public highway where 
 the assailant has a right to be, must be shown to be necessary, and the 
 man who assumes to assert it takes the risk of being able to show it. 
 In the next place, when it is necessary, the means by which it is enforced 
 must be reasonable. These vessels, as I have said, are seized without 
 warning, either actual or constructive, engaged in a business which 
 their Government asserts they have a right to engage in; engaged in a 
 business which they have practised with impunity elsewhere, and the 
 loss falls upon them, not upon the Government to which tliey belong. 
 
] 1 8 ORAL ARGUMENT OF HON. EDWARD J. PHELPS. 
 
 Why, wliat is the rule in the case of blockade? The- perfectly well 
 established rule is, that any vessel may be captured that undertakes to 
 run a blockade; but it must have notice, actual or constructive, such 
 as amounts to presumptive notice, and the innocent vessel not aware 
 that a blockade has been established, going in on a business that it has 
 a right to suppose is lawful, cannot be captured, — it can only be turned 
 off. The blockade must be declared in such a way that the world is 
 bound to take notice of it. 
 
 jSTow, under the circumstances, is it not perfectly plain that on the 
 question for compensation to the owners of these Canadian schooners 
 there is something else to be considered besides the right of self-defence 
 of Eussia? Mr. Blaine did the same thing; that is to say, he substan- 
 tially agreed to do the same thing, as I have pointed out to the Tribunal 
 in the discussion of the preliminary question, when Sir Julian Pauncefote 
 first approached the American Government with the proposal to renew 
 the negotiation that had been commenced by Mr. Bayard in 1887. 
 One prominent feature put forward by Sir Julian was the demand of 
 the British Government for satisfaction for the vessels that had been 
 seized in 1886 and 1887. What was the reply of Mr. Blaine to that? 
 I will not detain you by reading the correspondence; it has been read 
 and is before you. Why, said Mr. Blaine, sbrong and resolute as he 
 was, and I need not say that in this correspondence he goes clear up to 
 the line of diplomatic reserve and courtesy in his very strong assertion 
 of the rights of the United States to protect itself, even he, at the very 
 threshold, meets it with language which is substantially this: 
 
 Why, that is a small matter, the whole amount is not large. It falls 
 upon men who perhaps thought they were doing what they had a right 
 to do. We will pay that, if we can arrange for the future. It is not 
 worthy of a moment's dispute between two great nations. Whether the 
 sealing owners shall be indemnifled or not, is not the question between 
 the Governments. We are concerned with the future; let us make an 
 arrangement for the future preservation of the seals. We shall not 
 debate with you over the value of two or three schooners under the 
 circumstances. 
 
 And it is perfectly plain that if they had been fortunate enough to 
 have disposed flf the main subject of dispute at that time, the question 
 about compensation for these seizures, which is now in a very indirect 
 way before you, would have disappeared. It would have been the 
 proper acknowledgment, the proper confirmation of a friendly agree- 
 ment on an important subject, to make such a payment, and to forego 
 any dispute on the subject. So that the payment for these vessels, 
 under the circumstances, proves, in my judgment, nothing at all. 
 
 General Poster puts into my hands a summary of the report of these 
 Commissioners. There were nine vessels seized. 
 
 Two were released soon after they examined the facts; two the Com- 
 missioners recommended should receive compensation for seizure, and 
 in five the condemnation was confirmed ; and it is only right to say that 
 in respect of those five, it was asserted by the committee not that they 
 had been withinthe line, but that they found that their boats had crossed 
 the three-mile line. I leave that subject, and I claim that out of the cor- 
 respondence which has taken place, some of it since we have been sitting 
 here and all of it while we were on our way, the ground that we have 
 taken in respect to Eussia is completely confirmed, and the ground that 
 we take here in our own behalf is completely sustained by the conduct 
 of Eussia and the claims of Eussia so far as they constitute any author- 
 ity or precedent worthy of consideration. 
 
ORAL ARGUMENT OF HON. EDWARD J. PHELPS. 119 
 
 Now a word upon one more of these instances of protection of marine 
 property, whicli is the last in the somewhat long list with which I 
 wearied you yesterday, and which is afforded to whales by Norway in 
 the fiords of that country— those broad arms of the sea that run up into 
 the country. A whale, in the classification of Natural History, not 
 strictly a fish, is to all intents and purposes a fish. Its home is in the 
 open sea. It breeds there— it is attached to no shore; nevertheless, in 
 Norway, it appears that these animals find their way up to the fiords 
 where they become the basis of an important husbandry, industry, and 
 means of subsistence. 
 
 Now surely it would be impossible to name in the way of illustration, 
 any animal that would be further away from the lines upon which 
 these rules of law proceed, than the whale. It may be well said that 
 the whale is with the mackerel, the salmon and the cod; he belongs in 
 the sea always; he is appurtenant to no territory; he has no animus 
 revertendi; he is brought under no confinement or restriction; there is 
 no time that you can put your hand upon him except as you can put 
 your hand upon any fish in the sea; and yet in the statement that Mr. 
 Gram was kind enough to furnish the Tribunal with, the ground taken 
 by Norway is pointed out. Even that animal, under those circum- 
 stances, is brought -into the category of those to which we claim the 
 seals belong; and perhaps as it is stated so much more clearly than I 
 can state it, as well as being so much better authority than any view of 
 mine can be, I may be excused for reading a few words of this statement, 
 and that will be all I have to say upon this point. 
 
 The peculiarity of the Norwegian law quoted by Counsel for the United States, 
 consists in its providing for a close season for the whaling. As to its stipulations 
 aboiit inner and territorial waters, such stipulations are simply applications to a 
 special case of the general principles laid down in the Norwegian legislation con- 
 cerning the gulfs and the waters washing the coasts. A glance on the map will be 
 sufficient to show the great number of gulfs or fiords, and their importance for the 
 inhabitants of Norway. Some of these fiords have a considerable development, 
 stretching themselves far into the coqntry and being at their mouth very wide. 
 Nevertheless they have been from time immemorial considered as inner waters, and 
 this principle has always been maintained, even as against foreign subjects. 
 
 More than twenty years ago, a foreign Government once complained that a vessel 
 of their nationality had been prevented from fishing in one of the largest fiords of 
 Norway, in the northern part of the country. The fishing carried on in that neigh- 
 bourhood during the first four months of every year, is of extraordinary importance 
 to the country, some 30,000 people gathering there from South and North, in order to 
 earn their living. A Government inspection controls the fishing going on in the 
 waters of the fiord, sheltered by a range of islands against the violence of the sea. 
 The appearance in these waters of a foreign vessel pretending to take its share of 
 the fishing,^ 
 
 . (not to destroy the fishing for ever — ) 
 
 was an unheard of occurrence, and in the ensuing diplomatic correspondence the 
 exclusive right of Norwegian subjects to this industry was energetically insisted 
 upon as founded in immemorial practice. 
 
 Besides Norway and Sweden have never recognized the three miles limit as the 
 confines of their territorial waters. They have neither concluded nor acceded to 
 any treaty consecrating that rule. By their municipal laws the limit has generally 
 been fixed at one geographical mile, or one-fifteenth part of a degree of latitude, or 
 four marine miles; no narrower limit having ever been adopted. In fact, in regard 
 to this question of the fishing rights, so important to both of the United kingdoms, 
 the said limits have in many instances been found to be even too narrow. As to this 
 question and others therewith connected, I beg to refer to the communications pre- 
 sented by the Norwegian and Swedish members in the sittings in the Institut de Droit 
 International in 1891 and 1892. I wish also to refer, concerning the subject which I 
 have now very briefly treated, to the proceedings of the Conference of Hague, in 
 1877 (Martens. Nouveau recueil g^niral, 11" s6rie volume IX), containing the reasons 
 ■why Sweden and Norway have not adhered to the Treaty of Hague. 
 
120 ORAL ARGUMENT OP HON. EDWARD J. PHELPS. 
 
 Kot a word could be added to that. Put in the place of the whale, 
 which, as I have said, in no way attaches itself to or becomes appurte- 
 nant to any particular property — the seals, if they found in the fiords 
 of Norway precisely the home that they find in the Pribilof Islands and 
 there became the basis of the same important industry as the whales 
 are, I should like to know what would be the course of the Government 
 of Norway? What ought it to be — what would it be, beyond question 1 
 
 Would not that case be a great deal stronger than the one we are 
 concerned with? 
 
 Mr. GrRAM. — I beg only to observe that that fishery which t have 
 been stating there, which gave use to Diplomatic Correspondence is 
 Cod fish — ^not whales. 
 
 Mr. Phelps. — I beg your pardon. Sir, I did not understand it cor- 
 rectly. 
 
 Sir Charles Russell. — It applies to all fishing I understand. 
 
 Mr. Gram. — It applies to all fishing; bat that instance which I 
 quoted, which was mentioned in the Diplomatic Correspondence, was 
 Cod fishing. 
 
 Mr. Phelps. — That is a fact which I did not understand. I Tiad not 
 read that, perhaps, as attentively as I should; and indeed, being so 
 ignorant of the surroundings, I might readily fall into an error of that 
 kind. That fact strengthens what I was saying — it carries the prin- 
 ciple further than if it had been limited, as I supposed, from reading the 
 memorandum of Mr." Gram, it was limited, namely, to the case of whales. 
 
 Lord Hannen. — As I understand, it is based on this view, that those 
 fiords are territorial waters. 
 
 Sir Charles Eussell. — Quite. That is the real point — -just as the 
 large bays in America are claimed. 
 
 Senator MorGtAN. — There are no territorial waters four miles out, 
 are there? 
 
 Mr. Phelps.— Wliat is the authority for that? 
 
 Sir Charles Eussell. — The statement. 
 
 The President. — That may be a case for discussion between nations. 
 It is the assertion of the Norwegian Government. 
 
 Mr. Phelps.— That is exactly what it is. 
 
 Lord Hannen. — I only meant to point out they did not base it upon 
 an industry, but they say that it is within their territorial waters. 
 
 Mr. Phelps. — With great submission. My Lord, I respectfully insist 
 that it is exactly the industry upon which they base it. That is all 
 there is of it. What Mr. Gram says is, that they have never adopted 
 the three mile limit. He says some of these fiords, as the map 
 shows, are very wide. I do not find anything in this memorandum, or 
 in the statute, or anywhere else, and I have been commended to noth- * 
 ing by my friend's argument, to indicate that they should maintain 
 that, or would undertake to maintain it upon the mere territorial limit 
 which the world generally has adopted of three miles wide. It is 
 because those fisheries are made the subject, as is said here, of a great 
 and valuable industry, that they decline to discuss the question whether 
 they are exactly within, or exactly without, a limit which is not for 
 Norway alone to fix. It is not in the power of any one country to fix, 
 in the face of the world, what the territorial limit must be — that must 
 come by the consent of nations. If Norway was to undertake to assert, 
 or any other country, that the limit should be 50 miles, that would not 
 make it so. No other seafaring nation would be bound by that, if that 
 were all. Nor have they undertaken so far to put forth any assertion 
 in respect to it. Without discussing how wide the fiord is, without dis- 
 
ORAL ARGUMENT OF HON. EDWARD J. PHELPS. 121 
 
 cussing how wide the territorial line may be, which is adopted by the 
 consent of nations, and which, as Mr. Gram says, N^orway has never 
 estopped itself by agreeing to, whatever that may be, they will notper- 
 mit foreign vessels to come there and destroy the industry on which 
 their people depend. 
 
 The Peesidbnt.— But, Mr. Phelps, whether the assertion is founded 
 on the principle of extension of territorial waters— whether it is 
 founded on the defence of a national industry — do not you think that 
 concurrence with the views from other nations is equally necessary? 
 
 Mr. Phelps. — I do, and that is the very strength of the position that 
 I have been attempting to maintain. Your question, Sir, anticipates 
 the remark with which I was going to take leave of this branch of the 
 case, upon which I hope it will not be thought I have taken more time 
 than is necessary, although I fear I have. What do we claim from it 
 all — from everyone of these cases where in so many nations, in so many 
 waters, so many kinds.of marine, or semi-marine, or submarine prop- 
 erty (the foundation of industry and husbandry), have been success- 
 fully protected, and are protected, to this day — what is it that we claim 
 from that? We claim that it shows that in egery such case it has been 
 necessary for the nation to assert, and the nation has asserted, a prop- 
 erty interest, well described by Mr. John Quincy Adams as an interest 
 that may, perhaps, be an iwcorporea? interest. The term "property" is 
 large. It is indefinite: it is broad. Nations have been compelled to 
 assert, and in every case they have asserted, such a property interest in 
 an industry founded upon these animals as entitles them to protect it 
 from destruction; and in every case the whole world has so far 
 acquiesced and assented to that assertion, whether it has had the neces- 
 sity to make similar assertions for itself or not. So completely that the 
 exhaustive diligence with which this case has been prepared has not 
 shown you one instance of any claim to the contrary, except the solitary 
 one (if it comes up to that), which Mr. Gram referred to, when, to the 
 surprise of his people and his Government, a foreign vessel made its 
 appearance, and proposed to take part in their fisheries, in violation 
 of the regulations which are there established. There is not another 
 instance in the whole length and breadth of this case. 
 
 There is not another instance, either, where a nation having this prop- 
 erty has failed to assert it, or where any other nation, or individual of 
 any other nation, has openly ventured, dared, or proposed to infringe 
 it — not one. Of those few instances, principally of the seals in the 
 southern hemisphere, where a nation regardless of its interest, perhaps 
 at a day when the interest was not so valuable — has omitted in respect 
 to the seals to make that assertion which would have been respected as 
 it always is if it had been made — what is the consequence 1 The animal 
 has perished off the territory where it belongs. Therefore these three 
 postulates may be drawn, without any contradiction, from this long 
 series of cases : first that the property interest is always asserted where 
 it exists; secondly, that it is always respected where it is asserted; 
 thirdly, that in a few instances where it has been omitted, not from fear 
 of the right of asserting it, but from neglect, perhaps from the com- 
 parative unimportance of the industry — the consequence has been that 
 it has gone; and if it had not been for the statutes I have referred to, 
 there would not at this day have been a pearl oyster bed, nor a coral 
 bed, nor a seal, on the face of the earth. And then the Herring Fish- 
 eries — even those pure fisheries of the open sea that I do not pretend 
 come within the purview of this principle, except in a very wide view 
 of it unnecessary for us to take here — even there it is questionable 
 
122 ORAL ARGUMENT OF HON. EDWARD J. PHELPS. 
 
 wlietlier tbe places that know them now where they form so important 
 a part of the existence and the industry of the people, would know 
 them at all. I do not mean to say that those fish would have been 
 exterminated from the earth, because all seas are their home. They can 
 go elsewhere. They needno particular shoal. I do not say the herring 
 and the cod would have disappeared from the earth, but they would have 
 disappeared from those shores where they constitute the commercial 
 interest, the industry, the means of subsistence. And I say, there- 
 fore as the conclusion of this, that when it is adjudged, if it is ever 
 adjudged — that the fur-seal — more valuable than any one of these pro- 
 ducts, more closely attached to the soil where it propagates and belongs, 
 ten times over, — is to be excluded from protection, and that the right of 
 extermination is in any individual man who chooses to go there and 
 perpetrate it, you have then placed this animal, which should be the 
 very first to come within the purview of these principles, upon a footing 
 upon which no similar animal, no similar product stands or ever has 
 stood, and you doom him to immediate destruction. We may talk 
 about Regulations — which as a substitute for a dispute, as a means by 
 which nations could bury the dispute, and come together and agree 
 by convention upon what Vould have "been the right of either to have 
 enforced as against the other, if it thought proper, — that has its merits 
 when it comes about in that way; but as the substitute for that right 
 which alone has ever been sufQcient to protect any such property, it is 
 a mere rope of sand; and nothing that I could say would demonstate 
 that so completely as the arguments of my friends on the other side, 
 who day after day have been addressing you and urging that under 
 the guise of Eegulations you should adopt a series of measures that 
 would defeat the very end which, theoretically, they are intended to 
 subserve, which would promote the very business we are endeavoring 
 to restrict — ^pointing out in every step of their argument, the embar- 
 rassments, the difficulties, the vexations and uncertainties that would 
 attend any effort to enforce any sort of a Code which the learning and 
 skill of the ablest men in the world would be able to prescribe. 
 
 Now a few words on the question of law — on a question of law that 
 like so many questions of law in this case, is, in my humble judgment, 
 quite likely to be mistaken, if considered outside the necessities of the 
 case. — Upon what theory do statutes of the sort we have been perusing 
 ever since yesterday morning take effect? Says my friend: A statute 
 has no operation outside of the jurisdiction of the country that enacts it. 
 
 That is very true. That is a mere axiom in the law. How then do 
 the statutes protect these seals? They protect them upon either of 
 two theories, either of which is satisfactory — both of which are abun- 
 dantly supported by authority. They go sometimes upon one ground; 
 sometimes upon another. It is immaterial upon which ground they 
 stand, as long as they do stand. A statute — a municipal statute — 
 which has effect of course only within the jurisdiction of the territory, 
 and upoTi nationals outside the jurisdiction — how does that operate? 
 In the first place, what is the jurisdiction? To begin with, the juris- 
 diction of a nation is to the water line — that is plain enough. Then 
 it has come to be understood and considered that it extends a cer- 
 tain distance into the open sea — the "high sea", for certain purposes 
 only. The general jurisdiction of a nation through its statutory enact- 
 ments does not extend an inch beyond the water line — low water mark. 
 It cannot forbid, for instance, any vessel to sail up as near the shore as 
 it can, assuming that it does no harm. It cannot exclude vessels from 
 coming within three miles that is perfectly certain and agreed upon 
 
OBAl. ARGUMENT OF HON. EDWARD J. PHELPS. 123 
 
 everywhere. To exclude them you must connect their presence with 
 some mischief, some harm, some clanger; the iurisdiction for the three 
 miles, or the cannon shot, or whatever indefinite distance it may be, is 
 not a general jurisdiction, it is a jurisdiction for all necessary purposes, 
 leaving to the nation a very liberal discretion in determining what " neces- 
 sary purposes" are, — and nothing else. Thus, the jurisdiction of a 
 nation outside of the water line it will be perceived is a special juris- 
 diction. Inside of its territory it may pass any law it pleases; beyond 
 the water line it has a jurisdiction up to a certain extent for certain 
 proper purposes — revenue, quarantine, pilotage, everything that a 
 reason can be given for; and an exclusive right, unquestionably, of 
 fishing and hunting and to the products of the sea. 
 
 Then, does this special jurisdiction terminate on the three mile line? I 
 shall have occasion to point out, upon the very highest and most recent 
 authority, how utterly vague and uncertain this idea of a three mile 
 line is. But call it three miles for the purpose of my present discus- 
 sion, and assume that the whole world have agreed to call it just three 
 miles — ^110 more — no less, — does the right stop there? How comes it there 
 at all beyond the shore line? — Because it is found necessary, by uni- 
 versal agreement, that nations, for their own protection, should have 
 that much ; and therefore it has become settled by the usage of nations 
 that they shall have it; in other words that they shall add three miles 
 of the high sea to their territory for certain purposes only. Does it 
 stop at this limit of three miles? It does not stop there if there is a 
 just necessity in particular cases for extending it further; and I shall 
 cite authorities to show that while beyond the three mile line the juris- 
 diction becomes still more special than it was inside, and is still more 
 restricted, nevertheless, when it comes to pass that the three mile limit 
 is not enough to answer the purposes for which it is accorded, but that 
 for special occasions, perhaps revenue, perhaps quarantine, perhaps 
 lighthoiises, perhaps anything that is really necessary, the jurisdiction 
 of that nation — I mean the special jurisdiction — the jurisdiction over 
 waters, on the sea, goes farther still in the adjacent waters — goes as 
 far as may be necessary. It has been extended to twelve miles and to 
 various distances. And that while national jurisdiction is not complete 
 within the three mile line because it only extetids to proper subjects 
 and proper cases, then when the real necessity of the case extends fur- 
 ther, the jurisdiction of the nation goes with the necessity; in other 
 words that the limit of the jurisdiction of a maritime nation upon the 
 high sea is the limit of the actual necessity of the protection of its 
 interests. 
 
 That is the proposition. It is not a geographical limit — it never was ; 
 it never can be — it is a limit of propriety— a limit of reasonable neces- 
 sity. Of course as I said before on this subject of self defence, the 
 nation that undertakes to assert that, must be prepared to justify it. I 
 do not at all say that because a nation chooses to assert that a six mile 
 limit or a ten mile limit, for certain purposes, are essential to its pro- 
 tection, that it is thereupon entitled to possess itself of that limit. It 
 asserts it, and the judgment of the world is the tribunal. When a 
 nation in the exercise of its governmental power makes such an asser- 
 tion as that, it brings its case before the tribunal of the world, and 
 there it will be decided one way or the other. It will be determined 
 by the repudiation of nations, — the refusal of nations, the dissent of 
 nations from such a proposition and the refusal to respect it, and then 
 it perishes. It is a mere assertion that is found in the judgment ol 
 mankind to be an unwarranted assertion, and it falls to the ground. 
 
124 ORAL ARGTTMENT OF HON. EDWARD J. PHELPS. 
 
 On the ofher baud, when it is seen by the civilized world that this 
 extension in a particular case is proper, is right, is necessary, works 
 no harm or injustice to anybody, does give the nation its just and 
 necessary protection — then it is affirmed, and, by the acquiescence of 
 mankind it conies to be established as law — it comes to be established 
 precisely as what is called the "three mile limit" has come to be estab- 
 lished, and it derives, undoubtedly, additional force from the number of 
 cases in which it is embodied in treaties, which, while they do not 
 make law for any but the parties to the treaties, nevertheless shew the 
 recognition of the proprieties, the justice, of certain propositions by the 
 nations of the world, 
 
 If it is convenient to you. Sir, to adjourn now, it would be agreeable 
 to me. 
 
 The President. — Certainly. 
 
 [The Tribunal then adjourned for a short time.] 
 
 Mr. Phelps. — I had stated. Sir, before the adjournment this morn- 
 ing, one of the theories upon which, as it appears to me, both upon 
 principle and authority, the efficacy of municipal statutes or regula- 
 tions adopted for the preservation and protection of marine or semi- 
 marine products appurtenant to the shore beyond the ordinarj' territorial 
 line may depend. That is to say, that the question involves the enquiry, 
 what is the necessary line for such purpose. I postpone referring to 
 various authorities in support of that view until I have stated another 
 theory, equally applicable and equally supported by authority, because 
 the authorities I propose to refer to "belong so generally to both these 
 propositions, that they can be more advantageously taken up after 
 both have been stated. 
 
 jSTow a statute, as it appears to us — a municipal statute, which takes 
 effect within any line of territorial jurisdiction, say for instance, a three- 
 mile line or a cannon-shot line, or whatever line may be prescribed — ^is 
 enforced by judicial process, is law whether it is necessary and proper 
 and just or not, and does not depend upon the executive authority of 
 the country at all. That is to say, in a representative Government, 
 where there is a legislative power within the territory, it is the absolute 
 and positive law. It is the business of the executive to enforce it, if 
 his interposition is necessary. It is the duty of the Courts of Justice 
 to give effect to it, whenever the case arises. Outside of the jurisdic- 
 tion it has the same effect as far as those subject to the national juris- 
 diction are concerned. The ships of that power on the high sea are 
 still subject to that municipal law. Then when it takes effect, as we 
 have seen these always do take effect somehow by the consent of the 
 world outside of the ordinary territorial line, and upon those who are 
 not nationals, or under that jurisdiction, they may be said not to take 
 effect as statutes, but as what may be called "defensive regulations". 
 The term is not material. It expresses the idea I am trying to con- 
 vey. There is no magic in the term; there is no authority in the term. 
 It becomes a regulation which the executive of the country may or 
 may not enforce in its discretion. It is no longer a statute which must 
 be enforced. It is a provision which may be enforced or may not be 
 enforced. In order to justify to other nations its enforcement, the con- 
 ditions unnecessary to its efficacy within the jurisdiction must occur — 
 first, that it is necessary, then that it is reasonable. So that this pro- 
 vision, or regulation, which takes effect as a statute and by judicial 
 enforcement within the jurisdiction, becomes without, only the guide, 
 the measure of the executive authority which the executive might 
 adopt if there were no statute at all, subject to a qualification which I 
 
©RAL ARGUMENT OF HON. EDWARD J. PHELPS. 125 
 
 shall state in a moment. It is a part of the defence of the country 
 which is in the hands of its Government, which may be legislated upon 
 undoubtedly, but which whether legislated upon or not, must always 
 be enforced by the executive department of the Government, which 
 has control of the arm of the national force. Because as the writ does 
 not run on the high sea except as against nationals, and the sheriff of the 
 county or the marshal of the district cannot go there with his process, 
 when such a regulation is enforced at all, it must be enforced by the 
 executive power of the Government. Because the right of self-defence 
 is declared to be the paramount right. It is not merely the right of 
 an independent nation; it is the paramount right to which all others 
 give way. 
 
 It is the first duty of the executive, in the necessary case and by the 
 proper means, to exert the arm of power to protect the interest of the 
 Government; and that duty would be not the less if the legislative 
 Department of the Government had failed to interpose. It would still 
 remain. On the other hand, it is not lost if the legislative Department 
 does interpose. As it is not necessary that they should confer it, so it 
 is impossible that they should take it away. But the propriety of a 
 statute in such a case, the necessity of which does exist, is in order to 
 make the act which is necessary likewLsie reasonable. It is not the 
 statute that makes it necessary; the necessity comes from without. The 
 statute neither gives it nor takes it away; but when as against another 
 nation the act of defence is exerted, it must not only be necessary, it 
 must be reasonable. Eeasonable in the manner of its exercise; reason- 
 able in the thing that is done. Where the necessity of a case will be 
 answered by capturing a ship, for instance, and bringing it in, a nation 
 is not to sink that ship into the ocean with all on board, to burn it, to 
 execute or even to imprison, as has been well enough said by my learned 
 friend in reference to a judgment in this case that I shall have occasion 
 to allude to. The manner of the self-defence, even when the necessity 
 is conceded, must be reasonable in view of the usage of nations as far 
 as there is a usage that applies, — reasonable in its adaptation to the 
 necessity, not transgressing the necessity; just as in the case of indi- 
 vidual self-defence where the necessity for it arises, it must stop when 
 the exigency is met. 
 
 Now, one of the incidents that must always attend, and the least 
 reflection will show that it is an indispensable requisite, is that before 
 measures of force are resorted to in defence of a natimi, reasonable and 
 proper notice, or information shall be given to the world of the objection 
 that exists to what is being done, and of the regulation or the defence 
 that it is proposed to exert. Why, it was a part of my learned friend's 
 argument, in dealing with these seizures in the Behring Sea, "You 
 have seized these vessels without giving notice to Great Britain that 
 you were going to do so ". Well, if that had been true, I mean by that 
 if the facts that had taken place did not amount to sufficient knowledge, 
 there would be great force in my learned friend's suggestion. This was 
 the very point that, as I have remarked this morning, was the infirmity 
 of the seizures that were made by Eussia of the Canadian vessels for 
 sealing. A vessel came there with no notice whatever that sealing in 
 the high sea was going to be prohibited, and it had not been prohibited 
 elsewhere; and the first warning that the vessel had was this seizure. 
 Eussia may well say that it was necessary to do it. " We cannot pre- 
 serve this industry in any other way ". " Yes, but is it necessary that 
 you should resort to the extreme measure of capture of a vessel before 
 you had given notice not to do here as they could do elsewhere, and had 
 
126 ORAL ARGUMENT OF HON. EDWARD J. PHELPS. 
 
 given them a fair opportunity to withdraw", as it is presumed that they 
 would withdraw when they found that the nation affected objected to it; 
 then when they declined to withdraw and persevered in face of the 
 objection and the notice, it wonld be time to go a step further and 
 enforce your Eegulations by actual seizure. 
 
 That is what a statute does, and that would be the weakness of the 
 position of the President of the United States, if without any act of 
 Congress which by its publicity gives notice to the world, without any 
 proclamation or declaration he sends a vessel of the navy which is 
 under his command to seize a vessel and bring it into Court. It may 
 be necessary that measures be resorted to to stop the depredation of 
 that vessel, but it is not reasonable that it should be done until notice 
 has been given to the nation or to the vessels of the nation, and there- 
 fore you see transpiring in this very correspondence, that whenever a 
 statute of that kind is passed, or a proclamation of that kind is made, 
 the Government whose vessels are abroad and likely to be affected by 
 it, immediately give notice. It becomes then the duty of the nation 
 who finds that these acts are forbidden, to give notice to its subjects, 
 and to inform them that if they go on they go on at their own risk; 
 unless the nation prefers to take the ground of insisting that such a 
 statute is inoperative, and that it will not submit to it and that it will 
 justify and back up its vessels in disregarding it. 
 
 If the nation chooses to take that ground, that is one thing; but if it 
 is not proiJer to take that ground, if it is even uncertain whether it wiU 
 justify itself, or whether as a matter of policy, even aside from the 
 question of right, it will go that far, then it gives notice to the sliii)s, 
 "you must beware". That is the object of the statute. Another 
 object that makes it reasonable is this: — it is not reasonable to ask 
 nations to refrain on the high seas on the grounds that the acts they 
 do there are destructive to a national interest, when the subjects of the 
 nation that demands it are not required to refrain, though their action 
 would be just as mischievous. Ko nation could justify that. When 
 the objection of the nation is the killing of these animals, at such times, 
 in such places, and in such manner as is destructive, and, we insist, as 
 a matter of national defence, that the subjects of other nations shall not 
 do it, we cannot justify that proposition if we permit our own citizens 
 to go out and wreak the very destruction which they object to in other 
 people. Therefore, as the first step in the reasonableness of such a 
 proposition or regulation as that, you must show that we have pro- 
 hibited it to our own citizens. That we have made it a crime wherever 
 our writ runs; wherever the jurisdiction of our Court reaches. 
 
 The next thing is that we give notice to the world, by these public 
 statutes, that we propose to require other nations to desist from doing 
 that which is a destruction of our interests, and which we have made 
 criminal as against our own citizens. Then the foundation is laid for 
 saying that such an act is, in the first place, necessary, which, of course, 
 remains to be seen, and which the nation takes the risk of. In the first 
 place it is necessary, and in the next place it is made reasonable when 
 we have required our own citizens to abstain, at whatever cost or detri- 
 ment and when we have notified to the world what we propose to do. 
 That can only be done by a statute; I mean, the first of those requisites 
 can only be done by a statute, restraining their own citizens and their 
 own ships; and the statute, though not the only means of giving notice 
 to the world, is, perhaps, the best means. Then, suppose that Congress 
 or Parliament, perceiving the necessity of such restriction, passes such 
 statutes, it still remains for the executive of the country to enforce them, 
 
ORAL ARGUMENT OF HON. EDWARD J. PHELPS. 127 
 
 outside the jurisdiction, because they can be enforced in no other way. 
 If he declines to send the ship, or the cruiser, or the armed force, then 
 it is not enforced; but if he sends it, then it is enforced; and then the 
 question arises between that nation and the other that is affected, " Is 
 this a necessary thing to do in protection of your interest? Is it a 
 reasonable thing to do?" The regulation then becomes, in the first 
 place, through the statute, obligatory upon the citizens. It becomes 
 in the second place notice to the world. It becomes, in the third place, 
 the guide and the measure for the action of the executive, not necessarily 
 to control it, because he must act upon his own discretion ; but the guide 
 and the measure that is suggested to him, which is analogous to what 
 is enforced against his own people. 
 
 ^ow, I have dwelt longer than I intended upon a distinction that 
 is without a substantial difference, a distinction that is technical, that is 
 theoretical, as to the precise legal ground upon which this exercise of the 
 right of defence stands. It may be supported and it is supported by the 
 most respectable authority, upon either of these two theories, — either in 
 the proper case, in the necessary case, that the jurisdiction of the Gov- 
 ernment itself goes far enough, or that, if you terminate the jurisdic- 
 tion at an arbitrary line, then the power of the Government in the 
 exercise of self-defence, as suggested and guided and directed by the 
 provisions of the statute, is made reasonable, is notified to the world, 
 and is enforced in that way. 
 
 Ifow, still a little further on this subject of national self-defence in 
 respect to its theory. What is the right and the limit of national self- 
 defence? As I have said before, it is the first of all national rights; it 
 is the most important of all, — it may be the most necessary of all. It 
 goes, or it may go, to the existence of the nation ; it may stop much 
 short of that. 
 
 Perhaps you will pardon me for reading some extracts. I read first 
 from Vattel : 
 
 Since, then, a nation is obliged to preserve itself, it has a right to everything 
 necessary for its preservation, for the law of nature gives us a right to everything 
 ■without which we can not fulfill our obligations. 
 
 A nation or state has a right to everything that can help to ward off imminent 
 danger and to keep at a distance whatever is capable of causing its ruin, and that 
 from the very same reasons that establish its right to things necessary to its pres- 
 ervation. 
 
 Says Mr. Twiss, part I, section 12, of his book on International Law : 
 
 The right of self-defence is, accordingly, a primary right of nations, and it may 
 be exercised, either by way of resistance in an immediate assault or by way of pre- 
 caution against threatened aggression. The indefeasible right of every nation to 
 provide for its own defence is classed by Vattel among its perJfect rights. 
 
 And Phillimore, International Law, chapter 10, sections 111 and 112 
 says: 
 
 The right of self-preservation is the first law of nations, as it is of individuals. For 
 international law considers the right of self-preservation as prior and paramount to 
 that of territorial inviolability. 
 
 And says Mr. Hall in his Treatise on International Law: 
 
 In the last resort almost the whole of the duties of states are subordinated to the 
 right of self-protection. Where law affords inadequate protection to the individual, 
 he must be permitted, if his existence is in question, to protect himself by whatever 
 means may be necessary. There are, however, circumstances falling short of occa- 
 sions upon which existence is immediately in question, in whreh, through a sort of 
 extension of the idea of self-preservation to include self-protection against serious 
 hurts, states are allowed to disregard certain of the ordinary rules of law, in the 
 same manner as if their existence were involved. 
 
 If a nation is obliged to preserve itself, it is no less obliged carefully to preserve 
 all its members. The nation owes this to itself, since the loss even of one of its 
 
128 OEAL AEGUMENT OF HON. EDWAED J. PHELPS. 
 
 members weakens it and is injurious to its preservation. It owes this also to the 
 members in particular, in consequence of the very act of association ; for those who 
 compose a nation are united for their defence and common advantage, and none can 
 justly be deprived of this union and of the adyantages he expects to derive fromit, 
 while he, on his side, fulfils the conditions. The body of a nation cannot, then, 
 abandon a province, a town, or even a single individual who is a part of it, unless 
 compelled to it by necessity, or indispensably obliged to it by the strongest reasons 
 founded on the public safety. 
 
 It will be seen, therefore, that the right of self-defence is not confined 
 to the mere defence of the existence of the nation, as from an enemy that 
 threatens its conquest or its destruction. It extends to every interest 
 of the nation that is worth protecting, to every individual of the nation, 
 to every part of the nation, and it is a paramount right. What is the 
 limit and where is the limit of the place of its exercise? Must the 
 nation remain on its soil and stand on the defensive until it is attacked ? 
 ]:!rothing is more fundamental, than that the right of self-defence may 
 be exerted wherever it is necessary to exert it, on the high sea, even 
 on the territory of a friendly nation. You may even invade the terri- 
 tory of a nation with which you are at peace, to do an act which the 
 just defence of the country really renders necessary. So far from there 
 being any objection to enforcing this right upon the high sea, it may 
 be enforced upon foreign territory. Says Vattel on this subject, page 
 128, section 289 — and I read from page 148 of the argument: 
 
 It is not easy to determine to what distance the nation may extend its rights over 
 the sea by which it is surrounded. 
 
 And Chancellor Kent made the same observation in different lan- 
 guage. We have cited a number of cases on this point, and among 
 them the case of Church v. Hubbard, the decision of the Supreme Court 
 of the United States when Chief Justice Marshall presided over it, and 
 which my learned friend in his observations on the case, thinks was not 
 only right, but was so plainly right, that he could hardly think it 
 necessary for the Chief Justice to have delivered an opinion in support 
 of this conclusion. I agree with him. IJJ^ow what was that case exactly? 
 It was a case where a country had undertaken by one of its municipal 
 regulations to prohibit trade with its colony, and the right of a nation 
 to do that has become sufficiently recognized to be entirely established. 
 A ship set out to infringe that Eegulation by trading with a port of 
 that country. It was captured on the high sea by the nation whose 
 Eegulation was about to be infringed. The evidence was sufficient to 
 show that the presence of the vessel near the coast did have for its 
 object and intent, a trading voyage to the prohibited port. It had 
 infringed the Eegulation by coming within the line which the Eegula- 
 tion prescribed, but which was a line upon the high sea twelve miles 
 out — it had not infringed the territory of the nation — it had infringed 
 the Eegulation which took effect, if it took effect at all 12 miles out at 
 sea, and the question was whether the capture was justified by the law 
 of nations. The question arose in such a manner that it could not be 
 justified at all, except upon established princijjles of law, because the 
 question arose in an action upon a policy — an action upon a contract, 
 in which the rights of the parties, whatever the rights of the nation 
 may have been thought to be, must be determined by the existing and 
 established law. 
 
 The Chief Justice makes it so clear, as he always made every thing 
 clear in regard to Vhich he spoke or wrote — he made it so plain that 
 by the established principles of international law that riglit of self 
 defence could be exerted on the high sea, that the vessel could be cap- 
 tured and brought in and condemned, that it never has been questioned 
 
ORAL AEGUMENT OF HON. EDWARD J. PHELPS. 129 
 
 from that time to this by any authority that is produced for our con- 
 sideration except a dictum of Mr. Dana, or possibly one or two of these 
 American Jurists I alluded to yesterday, who have been introduced 
 into public notice by my learned friends. If any person doubts that 
 proposition I commend him to a reading of the luminous judgment of 
 Chief Justice Marshall and his eminent associates, because it was not 
 his judgment alone — the entire Court concurred in it. 
 
 That self-defence, it will be observed, was not of the existence of that 
 nation. Nobody pretended that was in any danger. It was not a right 
 in time of war. It was a period of profound peace. It was simply a 
 protection of themselves against the comparatively insignificant conse- 
 quences of one ship trading at one colonial port; and involved no ques- 
 tion of existence, and no question of serious danger. Therefore, there 
 cannot be supposed a case that is more completely and entirely in point 
 than this case, if it is right. As we have pointed out, Lord Chief Jus- 
 tice Cockburn in his judgment, in the leading case of the Queen v. Keyn, 
 speaks of this as declaring the law, and recognizes the ground upon 
 which Chief Justice Marshall puts the case. He says: 
 
 Hitherto legislation, so far as it relates to foreigners in foreign ships in this part of 
 the sea, has been confined to the maintenance of neutral rights and obligations, the 
 prevention of breaches of the revenue and fishery laws, and, under particular circum- 
 stances, to cases of collision. In the two first, the legislation is altogether irrespective 
 of the three mile distance, being founded on a totally different principle, viz the right 
 of the state to take all necessary measures for the protection of its territory and rights, 
 and the prevention of any breach of its revenue laws. This principle was well 
 explained by Marshall, C. J., in the case of Church v. Hublart. 
 
 I There is the difference, very clearly pointed out by the Lord Chief 
 Justice, between the defensive regulation in its operation, and the stat- 
 ute itself. The opinion of Chief Justice Marshall is also cited as stating 
 the law, by Chancellor Kent, by Mr. Wharton, and by Mr. Wheaton. 
 Then it was followed by the case of Hudson v. Guestier, in which the 
 question was as to the jurisdiction of the French Court, in the matter 
 of a seizure at sea — whether it could be made beyond the limits of the 
 territorial jurisdiction, for breach of a municipal regulation. That case 
 went up twice, and it went upon a different state of facts, that is, a sup- 
 posed different state of facts. It went up the first time, and it appeared 
 that the seizure was within the territorial limits. Then, on a new trial, 
 other proof showed that it was outside. Then it came up to the Supreme 
 Court of the United States a second time, and there it was held, as was 
 held before in the former Case, that the seizure on the high seas, for 
 breach of a municipal regulation, was valid; that it was an exertion of 
 the right of self-defence. Then a previous case to that, which was an 
 intermediate case, I believe, after the decision of Church v. Subiard, and 
 before the decision of Hudson v. Guestier, was Bose v. Himely, in which 
 under a similar law a seizure had been made on the high seas, but never 
 consummated by carrying the vessel into port. The question was 
 whether that was a justifiable act of self-defence. The Court divided 
 on that question, and the majority of the judges held that it was not 
 justifiable without carrying the vessel in; in other words the vessel 
 should not be seized without carrying out and continuing that seizure 
 up to the point that would give the parties a chance to be heard on the 
 question of whether the vessel was violating the regulations in question. 
 One of the judges. Judge Johnson, held that, notwithstanding that, the 
 capture was legal, and he has given an opinion which we have taken 
 the pains to quote, and which wiU be found in the Appendix to the 
 Argument, in which he reasons out the conclusion that this act" of self- 
 defence did not depend, for its justification, upon bringing in the vessel, 
 3 S, PT XV 9 
 
130 ORAL ARGUMENT OF HON. EDWARD J. PHELPS. 
 
 but that the seizure was valid. The remainder of the Court thought 
 otherwise. They did not base it upon the question of the validity of 
 the seizure, but they held that the seizure was never consummated in 
 the way that international law required; that the captors had stopped 
 short of the point which was necessary to their justification. 
 
 The President. — That is a rule of prize jurisdiction of which you 
 speak. 
 Mr. Phelps.— Yes, but subsequently, in the case of Hudson v. Gues 
 
 tier to which I have just alluded, 
 
 Mr. Justice Harlan. — That is in the 6th Oranch. 
 Mr. Phelps. — Yes, the case of Church v. Hubbard is in the 2nd Oranch. 
 Bose V. Himely is in the 4th Oranch, and the final Oase of Hudson v. 
 Guestier is in the 6th Oranch. Now it is said the case of Hudson v. 
 Guestier over-rules the decision of Bose v. Himely and there is a line in 
 the report of the judgment of Chief Justice Marshall, that says in terms 
 that the case of Base v. Himely is over-ruled. If so, then the doctrine 
 of Judge Johnson (which goes further than it is necessary for us to go 
 here) becomes the law. I confess from the report of the case I cannot 
 see in what particular Hudson v. Guestier over-rules Bose v. Himely but 
 that is quite foreign to my purpose. Perhaps it over-rules the dicta. 
 If it is not so, the authority of the case of Bose v. Himely will show that 
 the judges who thought that seizure was not lawful, put it exclusively 
 upon the ground that it was not consummated by carrying the vessel 
 into the Court of the country, and Judge Johnson alone thought it 
 valid without. 
 
 Hudson V. Guestier only holds that a seizure which is carried into 
 Court, as it happened to be in that case, is valid. But it is quite imma- 
 terial to our present inquiry whether the one case over-rules the other, 
 or not, because both cases concede our point. 
 
 From that time to this, in no authority that is brought forward, and 
 none that I have ever seen or heard of, have the doctrines established 
 there been questioned. But again and again, by writers and judges of 
 the greatest eminence, they have been recognized and declared to be 
 right. Mr. Dana alone who edited an edition of Wheaton's International 
 Law over-rules the author whom he edits on this point, who had stated 
 this decision as stating the law, and thinks that the Supreme Court of 
 the United States was mistaken. Now in Wheaton, the author whom 
 Mr. Dana has edited, chapter 1st, part 4, page 290 of this edition, which 
 is the 8th— and this is Mr. Dana's edition, by the way— it is said: 
 
 The independent societies of men called States, acknowledge no common arbiter 
 or judge except such as are constituted by special compact. The law by which they 
 are governed, or profess to be governed, is deficient in those positive sanctions which 
 are annexed to the municipal code of each distinct society. Every state has, there- 
 fore a right to resort to force as the only means for redress for injuries inflicted 
 upon It by the others, in the same manner as individuals would be entitled to that 
 remedy were they not subject to the laws of civil society. Each State is also enti- 
 tled to judge for itself what are the nature and extent of the injuries which will 
 justify such a means of redress. Among the various modes of terminating the 
 differences between nations by forcible means short of war are the following, 
 
 giving several methods of embargo and taking possession of things 
 and retaliation and reprisal. 
 The second of these is : 
 
 By taking forcible possession of the thing in controversy by securing to yourself 
 by force, and refusing to the other nation the enjoyment of the right drawn in 
 
 "^^Another is embargo; another is retaliation, and the fourth is reprisal, 
 Mr. Justice HarlAN. — Are those extracts embodied in your brief 
 anywhere? 
 
ORAL ARGUMENT OF HON. EDWARD J. PHELPS. 131 
 
 Mr. Phelps. — 'Ho. I think that this was not noticed in the written 
 Argument. 
 
 Mr. Justice Harlan. — Then will you give me the page? 
 
 Mr. Phelps. — It is part lY, chapter 1, section 290, page 290 likewise, 
 of the 8th edition of " Dana's Wheaton". 
 
 Sir EiCHARD Webster. — In the chapter about belligerent rights ? 
 
 Mr. Phelps. — It is " International rights of States in their hostile 
 relations"- Section 292, on page 292 also, says: 
 
 Any of these acts of reprisal or resort to forcible means of redress between nations 
 may assume the character of war in case adequate satisfaction is refused by the 
 offending State. Reprisals, says Vattel, are used between nation and nation in 
 order to do themselves j ustice when they cannot otherwise obtain it. If a nation 
 has taken possession of what belongs to another, if it refuses to pay a debt, or repair 
 an injury, or give adequate satisfaction for it, the latter may seize something belong- 
 ing to the former, and apply it to its own advantage till it obtains payment of what 
 is due together with interest and damages, or keep it as a pledge till the oflending 
 nation and so forth. 
 
 That refers more particularly to a past injury than the prevention of 
 a present. 
 
 The case of the Marianna Flora, in the 11th "Wheaton's Eeports of 
 the Supreme Court of the United States, in which the opinion was 
 delivered by Mr. Justice Story, is to the same effect as the decisions I 
 have previously quoted, though considerably later in the history of the 
 Court, on the point of the right of self-defence; and the case will be 
 found an instructive one as to the extent to which the ship of a nation 
 may go on the high seas in the right of self defence against the armed 
 vessel of another nation with which it is at peace. I cannot read that 
 long opinion; but I venture to commend it to the perusal of anyone to 
 whom it is not already familiar. The facts are that a vessel of the United 
 States Government was approached by the vessel of another nation, a 
 Portuguese armed ship, and approached so near that finally a shot was 
 fired, I believe from the Portuguese vessel. It was really an offensive 
 act by the Portuguese ship, perhaps not intended as offensive but rather 
 ill-advised, and the result of it was that Captain Stockton, who com- 
 manded the American vessel, captured the vessel and brought her into 
 port. The question came up in a double aspect; first, whether the ship 
 could be held or confiscated; secondly, if not, whether Captain Stock- 
 ton was liable in damages for having made the seizure. It was claimed, 
 on the one side, that the vessel was open to condemnation, that it had 
 made an assault upon an armed vessel of the United States, and could 
 be condemned as a prize. It was claimed, on the other hand, that that 
 was not so, and that really the seizure was so unjustifiable by Captain 
 Stockton, that he was liable in damages. It was not a naval vessel of 
 the Portuguese Government. It was an armed vessel. 
 
 The Supreme Court of the United States dismissed both those appli- 
 cations. They held, in the first place, that Captain Stockton was 
 within the exercise of his right of self-defence of the honour of his Gov- 
 ernment. He was not placed in any danger. His vessel was the supe- 
 rior force. He did not require to defend himself or his ship, and, if he 
 did, it was not necessary to capture the other ship. But the Court put 
 it upon the ground that an officer of the Navy of the United States 
 had a right to protect the honour of his flag against being assaulted and 
 fired upon, and that, therefore, under the circumstances, he was right 
 in capturing the vessel; and was not responsible in damages. They 
 held, on the other hand, that in view of what the mistake really was 
 on the part of the foreign vessel, upon an examination of the facts, not 
 as they appeared to Captain Stockton, but as they actually took place, 
 
132 ORRL ARGUMENT OF HON. EDWARD J. PHELPS. 
 
 the vessel could not be condemned and the vessel was discharged. It 
 is a most instructive case, because the opinion of Mr. Justice Story, 
 like all his opinions, was very able, and had the concurrence of the 
 whole Court. 
 
 The case of the schooner Betsey in Mason's Eeports, page 354 is a 
 decision to the same effect by Mr. Justice Story sitting by himself in 
 the Circuit Court over which he presided. 
 
 On page 148 of the American Argument is a citation from the first 
 of Kent's Commentaries; page 31: 
 
 And states may exercise a more qualified jurisdiction over the seas near their 
 coast for more than the three (or five) mile limit for fiscal and defensive purposes. 
 Both Great Britain and the United States have prohibited the trans-shipment within 
 four leagues of their coast of foreign goods without payment of duties. 
 
 That illustrates what I was saying this morning as to the right of a 
 state to extend its jurisdiction beyond the three mile limit. And in 
 the notes you will find several citations on that point. Mr. Twiss says 
 in his volume of International Laws : 
 
 Further, if the free and common use of a thing which ia incapable of being appro- 
 priated were likely to be prejudicial or dangerous to a nation, the care of its own 
 safety would authorize it to reduce that thing under its exclusive empire if possible, 
 in order to restrict the use of it on the part of others by snch precautions as pru- 
 dence might dictate. 
 
 That English author has applied this rule to the very case that we 
 have in hand, where the free and common use of a thing which is 
 incapable of being appropriated was likely to be prejudicial or disas- 
 trous to a nation. 
 
 Wildman, on the same point says: 
 
 The sea within gunshot of the shore is occupied by the occupation of the coast. 
 Beyond this limit maritime states have claimed a right of visitation and inquiry 
 within those parts of the ocean adjoining to their shores, which the common cour- 
 tesy of nations had for their common convenience allowed to be considered as parts 
 of their dominions for various domestic purposes, and particularly for fiscal and 
 defensive regulations more immediately affecting their safety and welfare. 
 
 Creasy, on International Law, remarks 
 
 States may exercise a qualified jurisdiction over the seas near their coasts for 
 more than the three (or five) miles limit, for fiscal and defensive purposes, that is, 
 for the purpose of enforcement of their revenue laws, and in order to prevent for- 
 eign armed vessels from hovering on their coasts in a menacing and annoying 
 manner. 
 
 Halleck says, in his book on International Law, 
 
 The three-mile belt is the subject of territorial jurisdiction. Even beyond this 
 limit states may exercise a qualified jurisdiction for fiscal and defensive purposes. 
 
 Then referring again to the language of Lord Chief Justice Cock- 
 bum, who quotes from Chief Justice Marshall's opinion in Church v. 
 Hubbard. 
 
 To this class of enactments belong the acts imposing the penalties for the viola- 
 tion of neutrality and the so-called "hovering acts" and acts relating to the customs. 
 Thus, the foreign enlistment act (33 and 54 Vic. C. 90) which imposes penalties for 
 various acts done in violation of neutral obligations, some of which are applicable 
 to foreigners as well as to British subjects, is extended in S. 2 to all the dominions 
 of Her Majesty, "including the adjacent territorial waters". 
 
 In the Appendix to this argument, on page 183, we have taken the 
 pains to bring together a number of citations from Continental Courts. 
 What we have cited before has been from English or American authori- 
 ties, either judicial or writers of distinction. Says Azuni : 
 
ORAL ARGUMENT OF HON. EDWARD J. PHELPS. 133 
 
 Every nation may appropriate things, the use of which, if left free and common, 
 would he greatly to its prejudice. This is another reason why maritime powers 
 may extend their domain along the sea coast, as far as it is possible, to defend 
 their rights. . . It is essential to their security and the welfare of their dominions. 
 
 Then Plocque, after discussing the limits of the territorial sea, and 
 pointing out the great divergence of opinion that has existed on the 
 point, says : 
 
 Moreover, in custom-house matters, a nation can fix at will the point where its 
 territorial sea ceases; the neighhouring nations are supposed to be acquainted with 
 these regulations, and are consequently, obliged to conform the'reto. As an example, 
 we will content ourselves with quotin<^ the law of Germinal 4th, year II, Art. 7, 
 Tit. 2 : ' Captains and officers and other functionairies directing the custom-house, or 
 the commercial or naval service, may search all vessels of less than 100 tons burden 
 when lying at anchor or tacking within four leagues from the coast of France, 
 cases of vis major excepted. If such vessels have on board any goods whose impor- 
 tation or exportation is prohibited in France, the vessels shall be confiscated as well 
 as their cargoes, and the captains of the vessels shall be required to pay a fine of 
 500 livres'. 
 
 There is an example of a statute operating territorially outside the 
 ordinary three miles, about three times as far. 
 
 Says Pradier-Fod6r6 (Traits de Droit international, Vol. II, sect. 633) : 
 
 Independently of treaties, the law of each State can determine of its own accord 
 a certain distance on the sea, within which the state can claim jurisdiction, and 
 which constitutes the territorial sea, for it and for those who admit the limitation. 
 This is especially for the surveillance and control of revenues. 
 
 And in a note to this passage he says : 
 
 It eflfiBct, in the matter of revenue, a nation can fix its own limits, notwithstand- 
 ing the termination of the territorial sea. Neighboring nations are held to recognize 
 these rules, and in conseqaence are considered to conform to them. On this point 
 the French law of the 4th Germinal, year II, can be cited. 
 
 This law fixes two myriameters, or about twelve English miles as the limit within 
 which vessels are subject to inspection to prevent fraud on the revenue. 
 
 La Tour (De la mer territoriale, page 230), speaking of the exterritorial 
 effect of the French revenue laws at four leagues from the coast, thus 
 justifies them. 
 
 Is not this an excessive limit to which to extend the territorial sea ? No, we assert. 
 At the present day this question will hardly bear discussion, on account of the long 
 range of cannon; and though we should return to the time when that range was 
 less, we should still undertake to justify this extension of the custom-house radius; 
 and for this it is sufficient to invoke the reasons given in matters of sanitary police. 
 It does not involve simply a reciprocal concession of states, or a tacit agreement 
 between them, but it is the exercise of their respective rights. . . 
 
 The American and English practice allows the seizure, even outside of the ordi- 
 nary limit of the territorial waters, of vessels violating the custom laws. 
 
 Says M. Calvo (Le droit international, sec. 244) : * 
 
 In order to decide the question in a manner at once rational and practical, it 
 should not be lost sight of at the outset that the state has not over territorial sea a 
 right of property but a right of inspection and of jurisdiction in the interest of its 
 own safety, or of the protection of its revenue interests. 
 
 The nature of things demonstrates then that the right extends up to that point 
 where its existence justifies itself, and that it ceases when the apprehenson of serious 
 danger, practical utility, and the possibility of effectively carrying on definite action 
 cease. . 
 
 Maritime states have an incontestable right however, for the defence of their 
 respective territories against sudden attack, and for the protection ot their interests 
 of commerce and of revenues, to establish an active inspection on their coast and its 
 vicinity, and to adopt all necessary measures for shutting off access to their terri- 
 tory to those ■whom thiey may refuse to receive, where they do not conform to estabr 
 lished regulations. It is a natural consequence of the general principle, that what- 
 ever anyone shall have done in behalf of his self-defence he will be taken to have 
 done rightly. 
 
134 ORAL ARGUMENT OF HON. EDWARD J. PHELPS. 
 
 Every nation is thus free to establish an inspection and a police over its coasts as 
 it pleases, at least where it has not bonnd itself by treaties. It can, according to 
 the particular conditions of the coasts and waters, fix the distance correspondingly. 
 A common usage has established a cannon shot as the distance which it is not per- 
 mitted to overleap, except in the exceptional case, a line which has not alone received 
 the approval of Grotius, Bynkershiik, Galiana, and Kluber, but has been confirmed 
 likewise by the laws and treaties of many of the nations. 
 
 Nevertheless we can maintain further with Vattel that the dominion of the state 
 over the neighboring sea extends as far as it is necessary to insure its safety, and as 
 far as it can make its power respected. And we can further regard with Rayneval 
 the distance of the horizon which can be fixed upon the coasts as the extreme limit 
 of the measure of surveillance. The line of the cannon shot, which is generally 
 regarded as of common right, presents no invariable base, and the line can be fixed 
 by the laws of each state at least in a provisional way. (Heiiter, Int. Law, Sees. 
 74-75.) 
 
 Blantcchli says (Int. Law, Book it, sec. 322) : 
 
 The jurisdiction of the neighboring sea does not extend further than the limit 
 judged necessary by the police and the military authorities. 
 
 And section 342: 
 
 Whenever the crew of a ship has committed a crime upon land or within water 
 included in the territory of another state and is pursued by judicial authorities of 
 such state, the pursuit of the vessel may be continued beyond the waters which are 
 a part of the territory, and even into the open sea. 
 
 And in a note he says : 
 
 This extension is necessary to insure the efficiency of penal justice. Tt ends with 
 the pursuit. 
 
 Carnazza-Amari, after citing from M. Oalvo tlie passage quoted above 
 says: 
 
 Nevertheless states have a right to exact that their security should not be jeopard- 
 ized by an easy access of foreign vessels menacing their territory; they may see to 
 the collection of duties indispensable to their existence, which are levied upon the 
 national and foreign produce, and which maritime contraband would doubtless 
 lessen if it should not be suppressed. From all these points of view it is necessary 
 to grant to each nation the right of inspection over the sea which washes its coasts, 
 within the Umits required for its security, its tranquillity, and the protection of its 
 wealth. . . . States are obliged, in the interest of their defence and their exist- 
 ence, to subject to their authority the sea bordering the coast as far as they are able, 
 or as far as there is need to maintain their dominion by force of arms. . . 
 
 It is necessary to concede to every nation a right of surveillance over the bordering 
 sea within the limits which its security, its tranquillity, and its wealth demand. -. . . 
 Balde and other authorities place the line at 60 miles from the shore. Gryphiander 
 and Pacuinez, at 100. Locennius, at a point from which a ship can sail in two days. 
 Bynkersheck maintains that the territorial sea extends as far as the power of artil- 
 lery. This limit is regarded as the correct one, not because it is founded on force, 
 but because it is the limit necessary for the safety of the state. 
 
 One other case I will cite upon this point, and that is the Case of 
 Manchester v, Massachusetts, in the 13th United States Supreme Court 
 Eeport; and the law on this subject is so well stated by Mr. Ohoate in 
 his argument, that«we have cited his language as well as the opinion 
 of the Court which sustained his contention. It is page 151 of the 
 argument and the report is at page 240 of the 139th Supreme Court 
 Eeports. 
 
 Without these limits were the " high seas", the common property of all nations. 
 Over these England, as one of the common sovereigns of the ocejin, had certain 
 rights of jurisdiction and dominion derived from and sanctioned by the agreement 
 of nations expressed or implied. 
 
 Such jurisdiction and dominion she had for all purposes of self-defence, and for the 
 regulation of coast fisheries. 
 
 The exercise of such rights over adjacent waters would not necessarily be limited 
 to a 3-mile belt, but would undoubtedly be sanctioned as far as reasonably necessary 
 to secure the practical benefits of their possession. If self-defence or regulation of 
 fisheries should reasonably require assumption of control to a greater distance than 
 3 miles, it would undoubtedly be acquiesced in by other nations. 
 
 The t.Mrine league distance has acquired prominence merely because of its adoption 
 
DEAL AEQUMENT OP HON. EDWARD J. PHELPS, 135 
 
 as a boundary in certain agreements and treaties, and from its frequent mention in 
 textbooks, but bas never been established in law as a fixed boundary. 
 
 Tbese rights belonged to England as a member of the family of nations, and did 
 not constitute her the possessor of a proprietary title in any part of the high seas 
 nor add any portion of these waters to her realm. In their nature they were rights 
 of dominion and sovereignty rather than of property. 
 
 Mr. Justice Blatchford, in delivering the opinion of the court, says: "We think 
 it must be regarded as established that, as between nations, the minimum limit of 
 the territorial jurisdiction of a nation over tide-waters is a marine league from its 
 coast ; that bays wholly within its territory, not exceeding two marine leagues in 
 width at the mouth, are within this limit ; and that included in this territorial juris- 
 diction is the right of control over fisheries, whether the fish be migratory, free- 
 swimming fish, or free-moving fish, or fish attached to or embedded in the soil. The 
 open sea within this limit is, of course, subject to the common right of navigation, 
 and all governments, for the purpose of self protection in time of war or For the 
 prevention of frauds on its revenue, exercise an authority beyond these limits. 
 
 Now, Sir, by these various authorities, at the risk of being tedious 
 upon a point that, if it had not been controverted on the other side, I 
 should have thought was elementary, I have endeavored to sustain the 
 proposition I advanced in respect to the two different theories, applica- 
 ble to different cases, arising under the same rule, iu which the statutes 
 or regulations, or action without statutes or regulations, of a nation in 
 its own defence do take effect, and are recognized by the established 
 principles of international law as effectual, outside of any arbitrary 
 line of three mile distance or cannon shot. 
 
 They show that, in the first place, for all purposes of self-defence — 
 defence of revenue, of fishery, of industries and of everything that is 
 worth defence, the effect of these statutes goes out beyond any arbitrary 
 line," goes out as far as is necessary in the case where it is necessary. 
 We have shown likewise — and I have not attempted to separate them 
 because they are not easily separable — ^that without any special statute, 
 wherever the protection of an interest, if it is only an interest of com- 
 merce or industry, requires it, the strong arm of the nation may be 
 extended, as in the cases in question in these decisions iu the Supreme 
 Court, upon the high seas; that a vessel may be pursued and arrested, 
 or may be arr^stpd when caught in the actual occupation of infringing 
 one of these regulations. 
 
 Now a word or two about the three mile line so often spoken of. It 
 is often recognized in treaties; it is sometimes referred to in statutes; 
 it has come to pass that it is quite generally recognized, and therefore 
 with that class of superficial minds that have occasion, (or think they 
 have), to talk about this subject, it is regarded as an arbitrary and fixed 
 distance which limits the authority of a Government; that it is an 
 annexation of three miles to the territory within which a nation can do 
 anything, without which it can do nothing. The moment that point is 
 examined, and it is examined with the very highest ability and fairness 
 in the case of The Queen v. Keyn, 2 Exchequer, not only by the Lord Chief 
 Justice Cockburn but by all the judges of England— I think everyone 
 of them delivered an opinion in that case and there is no one of these 
 opinions that may not be usefully perused — it is shown that the whole 
 idea of the three mile jurisdiction, instead of being the limit of a nation's 
 power of self defence is, itself, only an incident of the general power of 
 self defence. 
 
 Mr. Justice Haelan.— Justice Blatchford used the word " minimum". 
 
 Mr. Phbjlps. — Yes. The suggestion is as pertinent as the language-- 
 which is very pertinent. That is given as the distance which is ordi- 
 narily necessary. Up to that point, no question will be made but that 
 the necessity of self defence will extend to it, and yet as I remarked 
 
136 ORAL ARGUMENT OP HON. EDWARD J. PHELPS. 
 
 this morning it is but a qualified jurisdiction within the three miles, 
 because as the judges in that case point out, innocent navigation of 
 vessels within three miles can not be excluded. It is only for the purpose 
 of self defence; and the whole theory of the three mile line is but an 
 incident of the right of self defence for which it is given, so far as it 
 goes, but which does not limit the right itself. It is the off-spring of 
 the necessity and does not limit the principle from which it springs. 
 
 Senator Morgan. — In this Treaty, Mr. Phelps, in the only instance 
 in which it is mentioned, it is called the "ordinary" three mile limit. 
 
 Mr. Phelps. — Tes. That language is often used and it is correct, 
 because it is ordinary; but the word "ordinary" is a very different 
 word from "exclusive". 
 
 Now, Sir, you will perhaps pardon me — (because I can really mate 
 this clearer by using the language of great jadges than in any words of 
 my own) for reading a little from Lord Chief Justice Cockburn's opinion 
 in the case of the Queen v. Keyn. The Lord Chief Justice, after review- 
 ing with great fulness and learning the whole subject of the three mile 
 limit, from end to end, and referring probably to every respectable 
 authority which at that time existed on the subject, in a long opinion 
 and a very voluminous one, sums it up in this way. 
 
 From the review of these authorities we arrive at the following results: There 
 can be no doubt that the suggestion of Bynkershoek that the sea surrounding the 
 coast to the extent of cannon range should be treated as belonging to the state owning 
 the coast, has, with but very few exceptions, been accepted and adopted by the 
 publicists who have followed him during the last two centuries. But it is equally 
 clear in the practical application of the rule in the respect of the particular qt dis- 
 tance, as also in the still more essential particular of the character of sovereignty 
 and dominion to be exercised, great differences of opinion have prevailed and still 
 continue to exist. As regards distance, while the majority of authors have adhered 
 to the three-mile zone, others, like Mr. Ortolan and M. Halleck, applying with greater 
 consistency the principle on which the whole doctrine rests, insist on extending the 
 distance to the modern range of cannon — in other words, doubling it. This differ- 
 ence of opinion may be of little practical importance in the present circumstances, 
 inasmuch as the place at which the offence occurred was within the lesser distance: 
 but it is nevertheless not immaterial as showing how unsettled this doctrine still is. 
 The question of sovereignty, on the other hand, is all important and here we have 
 every shade of opinion. . . 
 
 Then omitting a passage and reading lower down, he says : 
 
 Looking at this we may properly ask those who contend for the application of the 
 existing law to the littoral sea, independently of legislation, to tell us the extent to 
 which we are to go in applying it. Are we to limit it to three miles, or to extend it 
 to six? Are we to treat the whole body of the criminal law as applicable to it, or 
 only so much as relates to police and safety? Or are we to limit it, as one of these 
 authors proposes, to the protection of fisheries and customs, the exacting of harbour 
 an'i like dues, and the protection of our coasts in time of war? Which of these 
 writers are we to follow ? 
 
 The Lord Chief Justice, in that opinion, points out the great differ- 
 ence between the authors, some of whom have assumed this distance to 
 be to the horizon line — some as far as one can see — some 200 miles — 
 one 100 miles — another 60 miles and so on; but he says that tlje major- 
 ity of publicists have rather settled down on the ordinary line of three 
 miles ; but later in the opinion, on the question of what a nation may do 
 within the three mile limit, on the point whether they can exclude 
 foreign ships from iimocent passage, he says it is a "doctrine too 
 monstrous to be admited". And again he says: 
 
 No nation has arrogated to itself the right of excluding foreign fvessels from tho 
 use of the external littoral waters for the purpose of navigation. , 
 
OKAL ARGUMENT OP HON. EDWARD J. PHELPS. 137 
 
 And Sir Eobert Phillimore, in his opinion in that case (which is 
 quoted in the note to page 146 of our Argument), uses this language: 
 
 The souBd conclusions which result from the investigation of the authorities which 
 have been referred to appear to me to be these: The consensus of civilized inde- 
 pendent states has recognized a maritime extension of frontier to the distance of 
 three miles from low water mark, because such a frontier or belt of water is neces- 
 sary for the defence and security of the adjacent state. 
 
 It is for the attainment of these particular objects that a dominion has been 
 granted over these portions of the high Hcas. 
 
 This proposition is materially different from the proposition contended for, viz : 
 that it is competent to a state to exercise within these waters the same rights of 
 jurisdiction and property which appertain to it in respect to its lands and its ports. 
 There is one obvious test by which tlie two sovereignties may be distinguished. 
 
 According to modern international law it is certainly a right incident to each state 
 to refuse a passage to foreigners over its territory by land, whether in time of peace 
 or war. But it does not appear to have the same right with respect to preventing 
 the passage of foreign ships over this portion of the high seas. 
 
 In the former case there is no jus trannitus ; in the latter case there is. 
 
 The reason of the thing is that the defence and security of the state does not 
 require or warrant the exclusion of peaceable foreign vessels from passing over these 
 waters, and the custom and usage of nations has not sanctioned it. 
 
 Kor is there any author that I know of, that has ever claimed any 
 such right of a nation of jurisdiction over the three mile limit itself. 
 
 The President. — Would not it be perhaps that it would be more 
 against the right of the comity of nations than against the right of the 
 sovereign nation, as a matter of theory? 
 
 Mr. Phelps. — "With much deference you will find it to be put in all 
 these cases by the English, American and Continental publicists, upon 
 the grouud of right. That word is used over and over again — ^it is a part 
 of the right of the nation. The three mile line is a measure of defence. 
 So long as defence can be adequately and sufficiently con'ducted within 
 it, there is no apology for a nation going outside it. The necessity 
 fails. When necessity passes the limit, the right of defence is co-exten- 
 sive with it, and goes as far as that goes. 
 
 I propose, on the next occasion — I should not have time to enter 
 upon it to-day intelligently — to show the extent to which this right of 
 defence may be exercised upon the sea — all the authorities that I have 
 cited thus far refer to the sea — what may be done outside of the three 
 mile, or "cannon-shot" line, I shall purpose to show that the same 
 right extends and is exercised and is justified and sustained by 
 eminent statesmen and diplomatists— not only asserted on the one 
 side but conceded on the other, even to go into foreign territory if it is 
 necessary. It must be an extreme case, I am sure, that justifies a nation — 
 that is to say, that makes it necessary for a nation, in time of peace, 
 to trespass on the territory of another nation in order to exert its right 
 of self defence — a case of rare occurrence — and yet a case that does 
 occur, and when it occurs I do not think anybody has ever questioned 
 that the right to go on to such territory exists. It has been exerted by 
 various nations, by Great Britain, by the United States, in various 
 instances, it has been exerted by the one against the other, and by 
 both against other nations; and the only question that could be raised 
 in any of these cases would be upon the facts of the particular case. 
 
 Ttie right is always conceded. The dispute arises in respect of the 
 particular necessity, and that, of course, is always a grave question. 
 But when you have established the necessity— when it is necessary for 
 Great Britain to enter the territory of the United States to exert its 
 just and proper right of self defence in time of peace, then it has not 
 'been denied by either nation, and it cannot be denied, that the right 
 exists; and I shall propose when I have the honour to address you fur- 
 ther, to point out instances of a larger and wider nature, so as to show 
 
138 ORAL AEGUMENT OF HON. EDWARD J. PHELPS. 
 
 that there is absolutely no limit to the thing which may be defended — 
 the property right — the industry — the possession; and there is no limit 
 to the place where it may be exerted, and there is no limit to the man- 
 ner in which it may be exerted, subject all the time to the primary 
 condition that what is undertaken to be done is necessary to be done, 
 and, the way in which it is undertaken to be done is reasonable and 
 just. 
 
 The President. — The Tribunal will adjourn to Monday next at half 
 past 11 instead of to-morrow. 
 
 [The Tribunal adjourned accordingly to Monday the 3rd July 1893, 
 at 11.30 a. m.] 
 
FORTY-EIGHTH DAY, JULY s^t, 1893. 
 
 Mr. Phelps. — In order, Sir, to recall the line of argument I was pur- 
 suing before it was interrupted by the recess of the Tribunal, I may 
 perhaps in a very few words recapitulate the propositions I had 
 endeavoured to support, setting out with the proposition that it was for 
 those who claimed the right to inflict upon the United States, not to 
 say the world, the injury which we claim results from this business of 
 pelagic sealing, to establish its justification; that in support of the 
 attempted justification they had rested their argument on two principal 
 propositions; first, that these animals are/er«; naturce in the legal sense 
 of that term and, therefore, open to pursuit in any place where the pur- 
 suer has a right to be; and, in the next place, that the sea is free, and 
 that a pursuit of this sort is incident to the freedom of the sea and is, 
 therefore, a part of the common rights of mankind. 
 
 In respect to the first proposition, I had contended at some length 
 that these animals are not ferw naturce in the legal acceptation of that 
 term, but that they were in the place, under the circumstances, in con- 
 nection with the industry that has been established there upon the 
 United States' territory, the property within the legal meaning of that 
 term of the United States, I had nearly concluded all that I desired to 
 say upon that particular branch of the case. In the effort, however, to 
 explain the legal operation of the numerous statutes which were cited 
 last week, which afford protection to similar property in many countries 
 and under many circumstances, I was drawn, somewhat out of the log- 
 ical line of my argument, to consider the subject of the right of self- 
 defence, to which I shall have to recur again in its more appropriate 
 connection, without, of course, repeating what I have already said. 
 Only two topics connected with the subject of property, I had desired 
 to observe upon before taking leave of it; and one of those, on account 
 of a mistake as to some references I desire to consult, I must pass this 
 morning in its regular order; that is a subject that has been discussed 
 on both sides of to the Newfoundland Fisheries as the rights were 
 claimed by Great Britain and the United States to exist at the time of 
 the Treaty of 1783, following the American Kevolution, and the Treaty 
 of 1818 which followed the war of 1812 between those Countries. Only 
 one other topic in that connection I desire to refer to, and that is what 
 has been called the right of the Indians to pursue the taking of the 
 seals in the water. You will bear in mind that in the Eegulations, a 
 draft of which was submitted on our side, there was an exception made 
 in favour of the Indians to a certain extent. 
 
 It is said by my learned friends on the other side that if we concede 
 the right to the Indian to take the seals, we concede the whole case — 
 that the right of the Indian is no greater than the right of the white 
 man — that the right to take at all, involves the right to take to any 
 extent which is profitable and desirable to the pursuer, and that there 
 is an inconsistency therefore — an irremediable inconsistency in the 
 judgment of my learned friends, between the position of the United 
 
 139 
 
140 ORAL ARGUMENT OF HON. EDWARD J. PHELPS. 
 
 States that this right of fishery does not exist, and the concession to 
 the Indians. It does not seem to me that the suggestion has given or 
 will be likely to give the Tribunal much trouble. What is conceded to 
 the Indian is not a right — it is a toleration — it is a charity — it is a pro- 
 vision which the nations are bound to make for their wards. That is 
 all. If we come to the question of strict right, an Indian has no more 
 right to pursue this business than a white man. He has as much ; he 
 has no more. 
 
 They are a people who stand by themselves, and will not stand very 
 long. They are a relic of a race that belongs to that Continent. Its 
 original denizens, its original proprietors, who have almost entirely 
 passed away and will soon be gone. They must be provided for by the 
 nation who under the necessities of civilization has taken from them 
 their homes, their means of subsistence. They must be provided for 
 in their own way, because civilization is to them a curse. If they are 
 to live at all, they must be permitted to live, as far as possible in the 
 changed condition of human affairs, in their own way, and to get their 
 subsistence from the table of the Almighty, and not from any of the 
 conventional arrangements of civilization. They are the gleaners 
 that follow the harvest, not upon a legal right, but upon a toleration 
 that all the world approves of. They are like the recipients of your 
 charity who, if they undertake to demand it, become highwaymen 
 and are dealt with accordingly. Again, nothing that these Indians 
 have ever done in their aboriginal condition as Indians, before they 
 become the instruments, the paid employes of others who are entered 
 upon a very different business — nothing they ever did for their own 
 subsistence — their food, their clothing — perhaps the simple barter to 
 provide them with other necessities, ever worked the least appre- 
 ciable harm to this herd. The great fact on which the case of the 
 United States depends, that the right which is asserted against them 
 is, as I have said, the right of extermination, does not apply as against 
 these Indians. No possible scrutiny would ever discover in the diminu- 
 tion of this herd the consequence of any inroad upon them which they 
 have made, and the reason why we have put into the regulations this 
 exception in favor of the Indian, is in order to enable them to continue 
 harmlessly that simple pursuit which is necessary to their subsistence, 
 which, if it were withdrawn, must be supplied by the Government with 
 some new means — some new and, to them, unnatural means — of pro- 
 vision. That, Sir, concludes, with the exception I have stated, to 
 which I shall have to ask your indulgence to reier, perhaps to-morrow, a 
 little out of its order, what I desired to say upon the principal question 
 of how far these animals are to be regarded as feroe naturce. Here comes 
 in. Sir, in my apprehension, with propriety, as corroborating and sus- 
 taining the proposition we have advanced on this subject of property, 
 the questions that are submitted in this Treaty regarding the former 
 Eussian occupation of the islands, and the extent to which we, the 
 United States, derive any claim from it. 
 
 I said in the opening that those questions were necessarily subordi- 
 date, not because they were made so by one side or the other, but because 
 they must be so ; because they are of no sort of consequence except so 
 far as they may help to throw light upon the claims of the one side or 
 the other; because as you will readily see. Sir, if you are to answer 
 those questions, all of them, in favor of the contention of the United 
 States, and yet decide that we have no right to protect ourselves against 
 this business, we have gained nothing by that decision. On the other 
 hand, if you should decide them all in favor of the contention of Great 
 
ORAL ARGUMENT OP HON. EDWARD J. PHELPS. 141 
 
 Britain, and yet decide that we possess the right we contend for, Her 
 Majesty's Government has gained nothing by such a decision. This 
 will be seen upon a moment's reflection. But, as I said, they are not 
 without their importance. In the first place, they are propounded in 
 the Treaty, and a specific answer is requested, a request that it will 
 be, of course, the desire of the Tribunal to comply with, if they find 
 themselves able to determine the questions. 
 Lord Hannen. — It is more than a question. It is required. 
 Mr, Phelps. — I think that is correct, my Lord. I used the word 
 because I supposed all that was desired of this Tribunal was expressed 
 in that sense. Although the request comes from a nation, it is but a 
 request, at any rate to those members of the Tribunal who owe no 
 allegiance or service to either of the contending nations. Ordinary 
 diplomatic courtesy would require that the invitation to decide these 
 questions addressed to eminent gentlemen not belonging to either of 
 the two contending countries, should be put in the form of a request. 
 
 Lord Hannen. — I was only referring to the words of the Treaty — 
 " shall "- It is difference between " may" and " must". If you discharge 
 your duties you must answer these questions. 
 
 Mr. Phelps. — I am quite aware of that my Lord, and in using the 
 word "request" I used it in the sense your Lordship gives, which under 
 other circumstances might have been called "requires." They must be 
 answered, and not only that, but whether they are to be answered or 
 not specifically, even if the Tribunal can construe this Treaty to admit 
 of their passing them over in silence, nevertheless they need to be 
 considered, because in our estimation, and as we shall contend, the 
 answer to them, or the facts upon which the answer depends, strongly 
 corroborate and confirm the American title. 
 
 As I have said before, our learned friends were extremely dissatisfied 
 that we did not rest our whole claim on the right to shut up Behring 
 Sea, and then rest our right to shut up Behring Sea upon the former 
 usage of Eussia. We have declined both these propositions. We do 
 not claim, as you have long since perceived, to shut up Behring Sea. 
 We do not claim that Russia ever claimed the right to shut up Behring 
 Sea; nevertheless. Sir, in respect to what Eussia did claim, I shall, 
 briefly I hope, invite your attention this morning. 
 
 There is no human right of property, I respectfully suggest, direct or 
 indirect, — ^which is not influenced, controlled and ultimately determined 
 by what is called prescription, occupation and the flight of time. How 
 far that applies between nations I shall consider presently. I state now 
 the general principles of municipal law, and a principle which finds its 
 analogy, as far as it is possible to find it in international law. It has 
 been eloquently said by a countryman of my learned friend the Attor- 
 ney General, whose countrymen have said so many eloquent things, 
 that in the policy of the law the hour-glass which Time is represented 
 as holding in his left hand, takes the place of the memorials and the 
 evidence that the scythe which he carries in his right sweeps away. 
 It is a figurative, still it is an exact statement, in my apprehension, of 
 the foundation and the result of this policy of the law; and, there- 
 fore, although in this instance we have expressly disclaimed reposing 
 the title of the United States on the former occupation and claims of 
 Russia, although we have preferred to rest it upon the stronger, the 
 more equitable, the clearer grounds that, as it seems to us, it stands 
 upon in their own right, and not in any derivative right, it is neverthe- 
 less true that the position they take derives the strongest corroboration, 
 confirmation and sujjport from the previous history of this subject, and 
 
142 OKAL ARGUMENT OF HON. EDWARD J. PHELPS. 
 
 the occupation of this property and this industry by our predecessor 
 whose title we have derived. That is the place that, in our estimation, 
 these questions take; that is the purpose for which a decision of them 
 was desired — required, if you please — from this Tribunal, and the only 
 purpose. 
 
 I need not say in completing the statement of this general principle, 
 what all lawyers understand, that while the effect of prescription, of 
 possession, of occupation is in due time to create titles, to ripen into 
 titles, so that the greater part of the property of this world to-day 
 undoubtedly reposes in its last resort upon that principle — yet the pos- 
 session short of that, if it has been of any considerable duration. If it 
 has been under the proper circumstances and the proper claim, is 
 regarded in all Courts of Justice as strengthening, and conlirming titles. 
 We have the familiar principle of Courts of Equity in respect to the 
 operation of time short of any Statute of Limitations, short of any abso- 
 lute prescription which makes a title — the lapse of time, the acquies- 
 cence, the omission to assert claims — as turning the scale upon doubtful 
 questions of fact. Many a case which, upon the elements of its precise 
 right as between the parties as it stands, might be questionable and 
 doubtful, is set at rest by the consideration of the passage of time, long 
 enough not to form an absolute legal bar, but to characterize the claim 
 to such an extent as to turn the scale. Now as to these questions there 
 are four in the Treaty which I shall refer to briefly. The first is : 
 
 What exclusive jurisdiction in the sea now known as the Behring's Sea, and what 
 exclusive rights in the seal fisheries therein, did Russia assert and exercise prior and 
 up to the time of the cession of Alaska to the United States t 
 
 Now I need not say, that the only sense and purport of that question 
 in its place on this subject is in reference to the seal fishery. The 
 question is not made here of the right of exclusive jurisdiction over 
 the sea, but the main purport of the question is, what exclusive 
 rights in the seal fishery did Eussia assert and exercise? And that 
 will be made plain enough by supposing for the moment, that Eussia 
 did not assume for herself an exclusive right over the seal fishery, 
 but did assert certain exclusive rights in the sea, not comprehending 
 the fishery; it would be manifest that would have no effect at all 
 upon the determination of this case. And on the other hand, suppose 
 it is found by the Tribunal, as it seems to me it must be found, that 
 exclusive rights to this seal fishery were asserted and maintained from 
 the original occupation of the Islands down to the cession to the United 
 States in 1867, then of what consequence does it become to the decision 
 of this case, what rights Eussia did or did not assert as to the whale 
 fishery, or to any other interest or right in the Behring Sea? It is 
 plain, therefore, that this question is to be read under the contention of 
 this case, in as much as there is no contention of the right of mare 
 clausmn, what exclusive right in the seal fishery did Eussia assert and 
 exercise down to this time, and it is only in that connexion that I shall 
 consider it. 
 
 The President. — I believe what you have Just stated is quite con- 
 firmed by the leading phrase of Article VI: 
 
 " In deciding the matters submitted to the Arbitrators", we are not 
 to construe the five following questions in any other purport than that 
 which is a matter submitted to us. 
 
 Mr. Phelps. — That is a very pertinent suggestion. Sir, and it makes 
 clear what I was contending for, that these questions are submitted to 
 the Arbitrators only for the purpose of determining the principal ques- 
 tions in the case. 
 
ORAL ARGUMENT OF HON. EDWARD J. PHELPS. 143 
 
 Question 2 is in other words this question. 
 How far were the claims of Russia affected by the Treaties of 1824 and 1825 1 
 
 That is the second question, because Great Britain and the United 
 States recognized the claims of Eussia just as far as they were included 
 in that Treaty, and no further. Just so far as the original claims of 
 Eussia were taken back, diminished, modified, altered by the Treaties 
 of 1824 and 1825, so far those countries declined to recognize what 
 Eussia had previously asserted. Just so far, on the other hand as by 
 the provisions of those Treaties the original pretensions of Eussia were 
 left undisturbed, just so far both those countries recognized and acceded 
 to it. Nothing can be plainer than that. So that the actual reading 
 of Question IsT" 2 is what I have stated— how far were the original 
 claims of Eussia in respect to these seal fisheries withdrawn or modi- 
 fled by the Treaties of 1824 and 1825* 
 
 Then the third question — and I go through with these in order to 
 make clear what I desire to say, that all these four questions resolve 
 themselves into a very simple enquiry, as far as the purpose of this 
 case is concerned, which is, whether the body of water now known as 
 Behring Sea was included in the phrase "Pacific Ocean" as used in 
 the Treaty of 1825. That is the same question that I just stated, over 
 again, in a different form and having reference to some of the actual 
 contentions in the negotiation. Question 3 states over again Question 2. 
 
 How far were the pretensions of Russia withdrawn, or modified, and 
 how far were they acceded to? The controlling enquiry, putting it in 
 other words, and coming to the actual terms of the negotiation, is, was 
 Behring Sea included or was it not? If it was included, then it is not 
 to be denied that Eussia's original pretensions were more or less con- 
 siderably modified. If it was not included, then it is plain that any 
 original assertion of Eussia on the subject of this seal fishery never 
 was affected at all by anything that took place between the countries, 
 and I respectfully submit that this conclusion will be found to be inevi- 
 table. 
 
 The fourth question, as to whether the rights of Eussia as to jurisdic- 
 tion passed to the United States, is no question, because both parties 
 concur that, whatever rights Eussia had, passed to us by the Cession. 
 That would be very plain without admission; but it has been admitted 
 by Lord Salisbury, and has been admitted by my learned friends. We 
 are not at issue about the fourth question, but the question is " What 
 rights did Eussia possess?" and that depends first on the claims she 
 had asserted originally and maintained by her possession, secondly, 
 upon the question how far, if at all, were those claims affected by the 
 remonstrances of Great Britian and the United States and the modifi- 
 cation, if there is a modification, that is contained in the Treaties of 
 1824 and 1825, 
 
 Then you see, if I am correct in what appears to me very plain, when 
 we come to analyse those questions and to deal with them in the light 
 of the controversy in this case and the great question that has to be 
 decided, you must state these questions again in another form, and 
 still they remain the same in effect. Did or did not Eussia throw open 
 to Great Britain and to the United States, by the operation of these 
 Treaties, the right to this seal industry and pursuit which she had 
 formerly possessed? Because it is not open to question that these 
 Islands were discovered by Eussia, a discovery, as you will remember, 
 upon a voyage that was undertaken, or rather the last of a succession 
 of yoysiges that were undertaken for the purpose of discovering the 
 
144 ORAL ARGUMENT OF HON. EDWARD J. PHELPS. 
 
 home of the seals. It was observed by navigators and by those who 
 had given some attention to it that there must be somewhere in that 
 region of the world a breeding ground whence the seals came; and you 
 will remember from the correspondence that has been read, that it is in 
 consequence of that idea that the voyage was undertaken, which 
 resulted in the discovery of the Pribilof Islands. Then it will be borne 
 in mind that from that time, or soon after, before or about the beginning 
 of the present century the business of taking the seals was pursued by 
 Russia through the Eussian American Company, which was first char- 
 tered in 1799 with very large powers, excluding foreigners, excluding 
 all Russian subjects except the grantees or lessees, whatever you choose 
 to call them, of the Russian Government, It was pursued not intelli- 
 gently, because the subject was then unstudied; but still it was pur- 
 sued, and we shall see in another connection with what results, from the 
 time of the original discovery down to about the year 1847, when the 
 present method by designation and killing only the young males was 
 entered upon. 
 
 The Ukase of 1821 was the very first occasion on which any ques- 
 tion arose, either by any attempt by private individuals to go there and 
 participate in this business, or by any assertion on the part of any nation 
 of any right in Behring Sea, Down to the Ukase of 1821 the possession 
 of Russia had been absolutely unbroken; a possession under a claim of 
 exclusive right, a possession enforced by its laws, its Government, its 
 authority; a possession with which nobody in the world undertook to 
 interfere. 
 
 The case is therefore very plain till you come down to the Ukase of 
 1821, because there is no conflicting evidence. Then the Ukase of 1821 
 was put forth, which was ill-advised in its phraseology, beyond ques- 
 tion. The Emperor was made to assert what he did not mean to assert, 
 and it is beyond question that the document in its legal and actual 
 effect, when it was applied to the region to which it had reference, did 
 have an effect by its terms much beyond what it was either the neces- 
 sity of Russia or its intention to assert. That brought out a remon- 
 strance from both countries, and that remonstrance resulted in a nego- 
 tiation in which the subject gradually grew less and less clear, as is 
 very apt to be the case in diplomatic correspondence. What seems to 
 us, in the light in which we look back upon this, as a very simple 
 proposition, gradually became more and more obscure as these formal 
 letters passed between the parties; but, at last, we have an exit out of 
 all this, because the parties ultimately came together; they came to a 
 conclusion that was satisfactory to the three parties, and has remained 
 undisturbed ever since, without any question that we hear of between 
 either of these three nations down to the time when pelagic sealing was 
 begun by the Canadians. The settlement of the matter that is tbund 
 in those Treaties was, therefore, not only satisfactory then, but it has 
 remained satisfactory ever since, till it is brought into consideration in 
 this present connection. 
 
 I need not detain you by referring to those passages which have 
 already been read, illustrating what I have said about the claims of 
 Russia. You will remember the terms of the Ukase of 1799, under 
 which the Russian American Company was chartered. Perhaps a few 
 words will illustrate better what I say, and recall to your minds what I 
 mean. The first, second, third, fourth and tenth Articles in the Char- 
 ter of 1799, which will be found in the first volume of the American 
 Appendix, pages li and 15, are those to which I refer; and it will be 
 seen by reading them that the right asserted by Russia then, in the origin 
 
ORAL ARGUMENT OF HON. EDWARD J. PHELPS. 145 
 
 of this business, to this industry and to all industries there, was an exclu- 
 sive right, and that in the strongest terms the right was conveyed to the 
 Eussian American Company to the exclusion of all others, and very 
 large and stringent powers were conferred upon tbem for the purpose 
 of enabling them to maintain it. The language of the Ukase has like- 
 wise become familiar to the Tribunal. In 1821 the exclusive claim is 
 there re-asserted, and it is in terms said that the Russian American 
 Company have these industries, or opportunities and facilities of hunt- 
 ing and fishing, to the exclusion of all others. So that there cannot be 
 a question that down to and including the Ukase of 1821 in the first 
 place the right asserted was an exclusive right; in the second place, 
 that right was neither challenged nor interfered with by anybody in 
 the world, either nation or individual. 
 
 Now, pausing there, in illustration of what I have said about the lan- 
 guage of the Ukase of 1821, I refer to a letter from Mr. Middleton, I 
 believe it was, or it might have been from the British Minister at St. 
 Petersburg (in which he speaks of this Ukase of 1821, and says the same 
 thing), — I do not quote his very words, but he says this was probably 
 surreptitiously obtained from the Emperor; and that the language car- 
 ried an assertion which it was not the intention of the Government 
 really to make: that it was drawn up (that is what he intimates by the 
 word "surreptitiously") and the signature obtained to it, without it 
 being perceived by the Emperor or his immediate advisers to go much 
 further than the language went, than it had any occasion to go, or 
 than he could maintain himself against the other nations of the world 
 in going. 
 
 Let us suppose that the Ukase of 1821 had been simply a claim to 
 the exclusive use of the seals in Behring Sea. Suppose instead of say- 
 ing that no ship will be permitted to come within 100 Italian miles of 
 the coast, which if literally construed shuts up the Sea altogether 
 because no ship could get in or being in could get out again, — instead 
 of using language which when it came to be applied to the very imper- 
 fectly known country at that time really amounted to a shutting of it 
 up at the north and at the south, the Ukase had simply asserted the 
 right of Eussia to the exclusive property in the seals ou the Pribiloff 
 Islands, had, in other words, asserted just what we assert today for the 
 United States ; would that have been challenged by Great Britain or 
 by the United States? Go back to the correspondence which has been 
 before you, and see what were the objects of the United States, and see 
 what were the objects of Great Britain ; and see what were the inter- 
 ests, the claims, the supposed rights of those countries; and in the 
 light of all that was said on this subject as well as in the still more 
 striking and conclusive light of the Treaties themselves, enquire whether 
 if Eussia in the Ukase 1821 had simply put forth in regard to the seals 
 in Behring Sea what we claim to day, the property right which entitles 
 us to protect them against extermination by foreigners, it would have 
 been challenged on either side. 
 
 There is nothing in the whole case that is more plain than that; and 
 the more carefully the diplomatic correspondence of the three natious is 
 scrutinized, the more clearly it comes out that, if that had been all, 
 nobody would have objected. In the first place, they had no wish 
 and no interest to object; and, in the second place, it would not have 
 occurred to them, if we may judge from anything they said, that they 
 had a right to dispute a claim of that character. 
 
 When Eussia put forth this, she claimed down to the 51st degree of 
 north latitude, almost the entire part of what is now British America, 
 
 B S, FT XV 10 
 
146 ORAL ARGUMENT OP HON. EDWARD J. PHELPS. 
 
 and fhen on down to 45° 50' on the Asiatic side, still lower. But this was 
 not only a claim virtually to shut up Behring Sea, that is in its results, 
 (though the Eussians themselves said they did not claim any such thing 
 as that,) but it was a claim which included down to a point which the 
 British Government could not concede without giving away their terri- 
 tory, and which the United States Government as it then claimed the 
 line, could not give away, because you will remember that until in 1846 
 the line between Great Britain and the United States was adjusted 
 where it is now, the American claim was considerably farther to the 
 north than it was ultimately settled, by a wise and friendly compromise 
 between the two nations. 
 
 The only importance of it now is as bearing on the quarrel of 1821. 
 When Eussia made this assertion it not only took what the British 
 claimed as their territory, but would have included what the United 
 States then claimed as their territory, not as it is now adjusted by the 
 boundary line, but as was then claimed. Therefore you see — and that is 
 the only importance of it, on both these grounds a challenge by these 
 two nations to the language of the Ukase of 1821 and to the boundary 
 which it extended was inevitable, and immediately took place; and 
 the only consequence now is whether it went far enough to cover the 
 fur-seal industry which we are concerned with. If it did, then it has a 
 material bearing; if it did not, it left undisturbed the rights which, as 
 I pointed out, Eussia had held without disi)ute down to that time. 
 
 Then the question comes to this — whether or not by those Treaties 
 was surrendered to these Governments or either of them by Eussia any 
 part of her claim to the fur-seal business, or fishery as it was called. If 
 she did, then she modified this claim of exclusive possession that down 
 to that time she had maintained. If she did not, then that claim 
 remained undisturbed down to the time of the cession in 1867. In the 
 first place, what is that which it is now proposed to be inferred Eussia 
 surrendered? What is it that it is now claimed she virtually gave up 
 without being asked — because you will see from the correspondence 
 that no such claim was set up either on the part of Great Britain or the 
 United States — what is it that she gave away under this Treaty which 
 she had held, I repeat, without dispute down to that time? Pressed 
 with that enquiry, and seeing at the threshold that it is a very grave 
 proposal to establish that she gave away all this industry, my learned 
 friends have remarked that it was not regarded as of any substantial 
 value; that down to the time of the purchase, the fur-sealing business 
 was not thought much of. 
 
 That it was not thought anything of by Great Britain and the United 
 States will be plain enough when you refer to the correspondence. 
 But what was it to Eussia? Up to the date of the negotiation of those 
 Treaties over 3,000,000 skins of the fur seal had been taken by Eussia 
 out of the Behring Sea from the herd that frequent the Pribilof Islands, 
 more than has been taken ever since by the United States. In the 
 speech of Mr. Sumner in 1867, which has been introduced into the Brit- 
 ish Case with high commendations of its authority, vol. 1, page 79, you 
 will find it stated that from 1787, the year after the Islands were dis- 
 covered till 1817, which was seven years before the first Treaty and 
 eight before the second, 2,500,000 seal skins had been taken, besides 
 700,000 thrown into the sea because they were badly cured and did not 
 pay to send to market. Therefore the statement of 3,000,00 is under 
 rather than above, because adding the 700,000 to the 2,500,000 taken 
 down to 1817, there were over 3,000,000 down to 1817 and then there 
 were seven years afterwards. In the United States Case, vol. 1, page 
 
ORAIi ARGUMENT OF HON. EDWARD J. PHELPS. 147 
 
 261, these facts are conflrmed by Mr. Byrne and by Veniaminoff, and by 
 Lutjens, and by other authorities, and that is at pages 126 and 164. 
 
 The profits of the Eussian- American Company up to 1821, when the 
 Ukase was issued, had been 30 per cent on its capital, and in the sec- 
 ond period of its lease following 1821, It was 55 per cent. Tou will find 
 those figures in the United States Case, vol. 1, page 266, and at the 
 time of the negotiation of these Treaties, the sea otter had almost 
 entirely disappeared and the fur-seal product was the chief source of 
 its industry. 
 
 It is that business which we are asked to infer was conceded — thrown 
 open to the world, or to these countries, which constituted the world so 
 far as that subject was then concerned — it is that business and that 
 property which we are invited to believe was given away by Russia, 
 when, as you perceive by the correspondence, no such demand was 
 made, and the subject of the fur-seal does not appear in the entire lim- 
 its of the correspondence. 
 
 Senator Morgan. — Are those facts disputed about the number of 
 seals taken by Russia in that period? 
 
 Mr. Phelps. — I do not understand them to be disputed, because we 
 have given in our case — in the Appendix — the reference I have just 
 made. But they are the evidence on the side of Great Britain, and I 
 am aware of no evidence to the contrary. That is the condition of 
 things in which we approach the question of the construction of the 
 Treaties that followed the Ukase of 1821. 
 
 Now referring to this correspondence — some confusion in my judgment 
 has been thrown upon this branch of the case, by trying to consider the 
 negotiation between Great Britain and Russia, and the negotiation 
 between America and Russia at the same time; — they were entirely sep- 
 arate as you will remember. 
 
 The American negotiation was first; it resulted in the Treaty of 1824. 
 The British negotiation was subsequent — not subsequent to 1824, but 
 subsequent to the American negotiation — and related to the Treaty of 
 1825. To understand what the parties did we must take it in the order 
 of time and consider these negotiations separately. Let us find out in 
 the first place what Russia and America did, and then we shall be a 
 long way towards determining what Great Britain and Russia did. I 
 confine myself, therefore, in the first place to the negotiation between 
 the United States and Russia, and leave Great Britain quite out of the 
 enquiry for the present moment. What did Mr. Adams object to in the 
 first place in his very first letter to Mr. de Poletica, the Eussian Minis- 
 ter, when the language of the Ukase of 1821 was brought to his atten- 
 tion. On page 132 of the 1st. United States Appendix you will see 
 this first letter dated February 25th 1822: 
 
 I am directed by the President of tlie United States to inform you that he has seen 
 with surprise in this edict the assertion of a territorial claim on the part of Russia, 
 extending to the fifty first degree of north latitude on this continent, and a regula- 
 tion interdicting to all commercial vessels other than Russian, upon the penalty of 
 seizures and confiscation the approach upon the high seas within 100 Italian miles of 
 the shores to which that claim is made to apply. The relations of the United States 
 with his Imperial Majesty have always been of the most friendly character; and it is 
 the earnest desire of this Government to preserve them in that state. 
 
 It was expected, before any act which should define the boundary between the ter- 
 ritories of the United States and Russia on this continent, that the same would have 
 been arranged by treaty between the parties. To exclude the vessels of our citizens 
 from the shore, beyond the ordinary distance to which the territorial jurisdiction 
 extends, has excited still greater surprise. 
 
 This ordinance affects so deeply the rights of the United States and of their citi- 
 zens that I am instructed to inquire whether you are authorized to give explanations 
 of the grounds of right upon principles generally recognized by the laws and usages 
 of nations which can warrant the claims and regulations contained in it. 
 
148 ORAL ARGUMENT OP HON. EDWARD J. PHELPS. 
 
 IJfow, Sir, there is stated, in the first place, in the very clear language 
 of Mr. Adams, the Minister of the United States, exactly what it was 
 that the United States complained of in the Ukase of 1821 ; and pardon 
 me for pointing this out on the map with a little particularity, because 
 it is the statement of the controversy which you do not find modified; 
 you find it talked about, discussed aTid rediscussed, and as I said made 
 perhaps more obscure in the course of the diplomatic correspondence. 
 He says Eussia by the Ukase has claimed down to the 51st degree of 
 north latitude, thus fixing arbitrarily a boundary between Eussia and 
 the United States which had never been agreed upon by treaty, in this 
 new and comparatively undiscovered country that was principally unoc- 
 cupied. He says: You have asserted without any agreement, as a 
 boundary, that which we cannot agree to; and then what? Ton have 
 excluded the Government of the United States and its citizens from 
 resorting to the shores affected within 100 miles, and therefore you have 
 interfered with our rights. 
 
 Now is it not clear in this case that at that time no United States 
 vessel had ever gone into the Behriug Sea or gone up there [Indicating 
 on the plan] ? They had no settlements ; they had no trade, but they had 
 a trade that had b^gun to be important as you will remember from the 
 evidence along this shore [Indicating on the map]. What did Mr. 
 Adams mean when he said that the rights of the United States were 
 affected by exclusion from the shores, in the language I have just read ? 
 Did he mean that they were excluding the United States from taking 
 fur-seals in the Pribilof Islands, or in Behring Sea? There is no sug- 
 gestion of such a thing. 
 
 What is the reply of Mr. de Poletica to that. It will be found in the 
 following passage: 
 
 I shall be more succinct, Sir, in tte exposition of the motlTes which determined 
 the Imperial Government to prohibit foreign vessels from approaching the northwest 
 coast of America belonging to Russia within the distance of at least 100 Italian miles. 
 This measnre, however severe it may at first appear, is, after all, but a measure of 
 prevention. It is exclusively directed against the culpable enterprises of foreign 
 adventurers, who, not content with exercising upon the coast above mentioned an 
 illicit trade very prejudicial to the rights reserved entirely to the Russian-American 
 Company, take upon them besides to furnish arms and ammunition to the natives in 
 the Russian possessions in America, exciting them likewise in every manner to resist 
 and revolt against the authorities there established. 
 
 The American Government doubtless recollects the irregular conduct of these 
 adventurers, the majority of whom was composed of American citizens. 
 
 Has been the object of the most pressing remonstrances on the part of Russia to 
 the Federal Government from the time that Diplomatic Missions were organized 
 between the countries. 
 
 Is it pretended there was ever a remonstrance from Eussia to the 
 interference of the United States vessels in Behring Sea? 
 Then the letter continues : 
 
 These remonstrances, repeated at different times, remain constantly without effect. 
 
 Then it says : 
 
 The Imperial Government saw itself under the necessity of having recourse to the 
 means of coercion, and of measuring the rigor according to the inveterate character 
 of the evil to which it wished to put a stop. 
 
 In other words, this is what the Eussian Minister says, if you inter 
 pret it by the language that is put into his mouth now: "The object of 
 this provision in the Ukase of 1821 is to put a stop to depredations in 
 Behring Sea which have become injurious, although nobody has ever 
 attempted to enter the sea at all." He would contradict himself, in the 
 language that he utters, if you attribute that language to the interior 
 
ORAL ARGUMENT OP HON. EDWARD J. PHELPS. 149 
 
 of Behriug Sea, rather than to the real North-west coast. He says he 
 must request the Secretary to consider that the ordinary conditions of 
 a shut sea attend the case, and that the Russian Government might well 
 have claimed it, but he says : 
 
 But it preferred only asserting its essential rights without taking any advantage of 
 localities. 
 
 IJir ow what is Mr. Adams' reply to that f It will be found on page 134. 
 Of course, I do not read it all. 
 
 This pretension. 
 
 having recited what I have just quoted from M. Poletica. 
 
 Is to he considered not only with reference to the question of territorial right, 
 hilt also to that prohibition to the vessels of other nations, including those of tlie 
 United States, to approach -within 100 Italian miles of the coasts. From the period 
 of the existence of the United States, as an independent nation, their vessels have 
 freely navigated those seas, and the right to navigate them is a part of that inde- 
 pendence. 
 
 Then further down he says: 
 
 The light of the citizens of the United States to hold commerce with the aborig- 
 inal Natives of the north west coast of America without the territorial jurisdiction 
 of other nations even in arms and munitions of war, is as clear and indisputable as 
 that of navigating the seas. That right has never been exercised in a spirit unfriendly 
 to Russia; and although general complaints have occasionally been made on the 
 subject of this commerce by your predecessors no specific ground of charge has ever 
 been alleged by them of any transaction in it which the United States were, by the 
 ordinary laws and usages of nations, bound either to restrain or to punish. 
 
 IS'ow is it possible to doubt what those gentlemen were talking about 
 in such language as that? What locality did they refer to. Did they 
 refer to a locality which \he United States vessels had never invaded, 
 where they had no trade, and no business — where no remonstrance ever 
 could have been made, or did they refer to the shore to which alone such 
 language had any sensible application? 
 
 Then comes M. de Poletica's reply, and this is the last letter in this 
 connection that I have occasion to read. He says : 
 
 As to the right claimed for the citizens of the United States of trading with the 
 natives of the country of the north-west coast of America, without tlae limits of the 
 jurisdiction belonging to Russia, the Imperial Government will not certainly think 
 of limiting it, and still less of attacking it there. But I cannot dissemble. Sir, that 
 this same trade beyond the 51st degree will meet with diflSculties and inconven- 
 iences, for which the American owners will only have to accuse their own imprudence 
 after the publicity which has been given to the measures taken. 
 
 Now what i derive from this, Sir, is that in the origin of this contro- 
 versy between America and Great Britain when the language of the 
 Ukase of 1821 was first challenged, the claim of the United States by 
 language which cannot be mistaken because it was only one subject that 
 it had application to was, first: "You have extended your boundary 
 without authority to a limit that we do not agree to." Secondly : " You 
 have undertaken to put a stop to the business which the United States 
 vessels have long been carrying on in trading with natives on their coast 
 and to exclude us from coming within 100 miles of that coast, and that 
 assertion we altogether deny". 
 
 Now I repeat, Sir, what I said a little while ago : suppose all there 
 had been in the Ukase of 1821 was: "we assert the exclusive right to 
 fur-seals in Behring Sea", is there any reason to suppose that what Mr. 
 Adams said or what he ever said or what any American has ever said 
 who corresponded on this subject — either that the Government had any 
 desire to controvert that or any personal interest in converting it, or 
 that such an assertion of right would have been for a moment chal- 
 
150 ORAL ARGUMENT OF HON. EDWARD J. PHELPS. 
 
 lenged? Ton will observe, Sir — you have not failed to observe I am 
 sure in what has been derived from this correspondence — that the 
 inclusion of the Behring Sea in the result of this correspondence is 
 altogether by inference; and — I am speaking now of the American 
 negotiation — with respect to the American negotiation the controversy 
 was entirely in regard to what is called "the north-western coast" in 
 this controversy, as it would seem to be, in contradistinction to what I 
 have called the " north-eastern coast". The controversy was altogether 
 in regard to the actual rights and occupation of the United States on 
 the north western coast, and the boundary line; and we only bring 
 Behring Sea into that controversy by assuming that the general lan- 
 guage which is employed speaking of the the northwest coast would 
 include it — not that it did include it in the estimation of the parties, 
 because the use they were making of the language shewed that it was 
 not included at all. 
 
 This runs through the correspondence. I could cite much more, if I 
 cared to read over again, what has been read; but my eye now falls 
 upon the passage I alluded to a little while ago. It is in Mr. Middle- 
 ton's letter at page 136 of the first volume of the United States Appen- 
 dix, where Mr. Middleton writes to Mr. Adams how this strong 
 language of the Ukase of 1821 came to be employed. He says: 
 
 For some time past I began to perceive that the provisions of the Ukase would 
 not be persisted in. It a;ppear8 to have been signed by the Emperor without suffi- 
 cient examination, and may be fairly considered as having been surreptitiously 
 obtained. There can be no doubt therefore that with a little patience and man- 
 agement it will be moulded into a less objectionable shape. 
 
 Ton see then. Sir, in approaching this subject, first how little prob- 
 able it was that Eussia would have readily given away this valuable 
 industry; secondly, that it was not intending to give it away; that 
 the United States never had sought to interfere with it in any way, but 
 confined its remonstrance to other points; so that when you come to 
 read the article of the Treaty which was very readily agreed on, the 
 longer this correspondence proceeded the plainer it became that it 
 was a controversy over words and not over rights — that Eussia never 
 intended the full meaning of the words of the Ukase of 1821 — it dis- 
 claimed it from the outset; it was only bringing the parties together, 
 and if it had been done, as I have said, directly, instead of through the 
 convolutions of a long correspondence, with the embarrassments that 
 always attend such correspondence that must be made public, it would 
 have been done even still more readily than it was ; and when you 
 come to the actual concurrence between Eussia and the United States 
 there really was no difficulty at all, and all the discussion that had 
 taken place was as to the claims which were made in terms, and not 
 intended to be made or to be insisted upon in reality. 
 
 Then comes this Treaty. You, Sir, I am sure (whose diplomatic 
 experience has suggested to you the extreme difficulty that attends 
 even the reducing to form of a Treaty which has substantially been 
 agreed upon), will have been surprised to see how easily this negoti- 
 ation between Eussia and the United States resulted in the Treaty of 
 1824 — how neither party gave away anything that it had insisted upon 
 in reality — how Mr. Adams, having stated his objection, was met at 
 once by the explanation from Eussia — "Well, but we never meant 
 that: we did not mean to insist upon that; what we meant was so and 
 so." "Well, so and so", rejoins Mr. Adams, "we have no .quarrel 
 about: we have made no point about. This is what we claim — the 
 adjustment of the boundary, and that our legitimate trade on the coast 
 
OEAL ARGUMENT OF HON. EDWARD J. PHELPS. 151 
 
 shall not be Interfered with." "That, we never intended to interfere 
 with", says Eussia, and the Treaty of 1824 results, without the least 
 compromise. Eussia gives away nothing, except, as Mr. Middleton 
 points out, the unfortunate phraseology which went a great deal too 
 far. Mr. Adams obtained all he claimed. I should modify that obser- 
 vation by saying that the only thing in this Treaty which was any- 
 thing else than an explanation, was the provision that for 10 years the 
 ships of neither party should be interfered with in certain trading 
 rights which are not material to this point. 
 Now the Treaty of 1824 proceeds thus : 
 
 It is agreed that in any part of the Great Ocean, commonly called the Pacific 
 Ocean, or South Sea, the respective citizens or subjects of the High Contracting 
 Powers shall he neither disturbed nor restrained, either in navigation or in fishing, 
 or in the power of resorting to the coasts, upon points which may not alreadj' have 
 been occupied, for the purpose of trading with the natives, saving always the 
 restrictions and conditions determined by the following Articles". 
 
 Senator Morgan. — That is the 4th Article? 
 
 Mr. Phelps. — No, that is the 1st Article. The 4th Article is this: 
 
 It is nevertheless understood that during a term of 10 years, counting from the 
 signature of the present convention, the ships of both Powers, or which belong to 
 their citizens or subjects respectively, may reciprocally frequent, without any hin- 
 drance -whatever, the interior seas, gulfs, harbors, and creeks, upon the coast men- 
 tioned in the preceding article, for the purpose of fishing, and trading with the 
 natives of the country. 
 
 Senator Morgan. — Why did they limit the right of fishing and trad- 
 ing with the natives for a period of 10 years, and make it reciprocal, if 
 those rights were surrendered by Russia into the hands of the other 
 two Governments? 
 
 Mr. Phelps. — Because the provisions of Article 10 refer to a liberty 
 that the respective nations should have, to go to the shores of each 
 other and Article 1 undertakes to define what those shores are. 
 
 Senator Morgan. — And it seems to relate also to the right of fishing 
 as well as resorting to the shore. 
 
 Mr. Phelps. — Certainly it does. Article I provides that both shall 
 have the right — that is to say that neither shall be disturbed, or 
 restrain the other — neither in ten years nor in any other time. That 
 is only a diiference of phraseology from saying both sides shall have 
 the right "in that part of the Great Ocean." 
 
 Whether that includes Behring Sea is the question I am coming 
 to. Then it says that for 10 years neither party shall be restrained 
 from visiting the interior seas. That is article 4. Of course, I should 
 refer to article 3 which gives the boundary line, and that makes the 
 two intelligible. I read the 1st article first, and then article 4, with- 
 out reading article 3. Article 3 says this : 
 
 It is moreover agreed that, hereafter, there shall not be formed by the citizens 
 of the United States, or under the authority of the said states, any establishment 
 upon the north west coast of America, nor in any of the islands adjacent, to the 
 north of fifty-four degrees and forty minutes of north latitude; and that, in the 
 same manner, there shall be none formed by Russian subjects, or under authority of 
 Russia, south of the same parallel. 
 
 Senator Morgan. — The difficulty in my mind is this. If the rights 
 in article I and Article IV are identical, why should these two Govern- 
 ments first agree that they should be surrendered absolutely and for- 
 ever, and then afterwards agree that a limit of ten years should be put 
 on them. 
 
 Sir Charles Eussell. — Article IV applies to territorial waters — 
 "interior seas, gulfs, harbors, creeks, and so on." 
 
152 ORAL ARGUMENT OF HON. EDWARD J. PHELPS. 
 
 Mr. Phelps. — I suppose this is the reading of the Treaty in plain 
 words, as I construe it— of course it will be for the better consideration 
 of this Tribunal. Like many Treaties it is not very plainly expressed, 
 among -which might be included the one that has constituted this Tri- 
 bunal. The parties are so afraid of giving something away that it 
 results in obscurity; but I understand this to be the meaning of the 
 Treaty, bearing in mind that it was largely an unoccupied and partly 
 undiscovered country at that time: liussia shall have the exclusive 
 right to make settlements down to 54° 40' — in other words, that shall 
 be considered the territory of Eussia, and you shall not come above 
 that: Below that, as far as Russia and the United States are concerned 
 at any rate, (because the rights of Great Britain do not come in here) 
 it shall be considered the territory of the United States, and Eussia 
 will not go below 54° 40'. Now you have a boundary line. This hav- 
 ing been dejtermined, for 10 years the ships of the two countries may 
 enter each other's territorial waters and the islands in the interior seas 
 and gulfs for the purposes of certain trade and subject to certain 
 restrictions. That is the meaning of the Treaty. 
 
 Senator Mor&an. — And after that, they may enter Eussian waters 
 permanently for the same purpose? 
 
 Mr. Phelps. — Oh no. Articles I and III draw the territorial line. 
 Then Article IV provides that that territorial line may be invaded by 
 both sides by mutual consent for certain purposes. That is the way I 
 read the Treaty; and all that we have to do with it here for the pur- 
 pose of elucidatiug the question we are charged with, is to find out 
 whether Bchring Sea was or was not included within the terms of this 
 Treaty; and the difference that makes is this; if Behring Sea was 
 included within the meaning of the term in the 1st Article of this 
 Treaty, thcTi it is open to be argued by implication, and not directly, 
 that Eussia did throw open to the United States a right of fishing and 
 so forth, in the Behring Sea which might be argued to affect the exclu- 
 sive right to this fnr seal fishery, though it does not say so. On the 
 other hand, if Behring Sea is not included within the terminology of 
 this Article of the Treaty then the Treaty has nothing to do with the 
 case whatever. 
 
 Lord Hannen. — ^Nothing to do with Behring Sea. It would have to 
 do with the question of fishing in whatever is the proper meaning of 
 the words "Pacific Ocean". 
 
 Mr. Phelps. — Yes ; not with Behring Sea. 
 
 Lord Hannen. — Yes, that is what I say. 
 
 Mr. Phelps. — That is what I mean; it has nothing to do with this 
 case so far as Behring Sea is concerned. That is what I meant to say. 
 I will repeat that, in order that we may start in what I am imperfectly 
 trying to say with a perfectly clear conception of what I am contend- 
 ing for : That Eussia had had exclusive occupation and exclusive claim 
 to the fur-seal fishery at least, probably to more than that, down to 1821, 
 is not disputed. It cannot be disputed because there is no evidence to 
 dispute it upon. Now if Eussia ever gave away her claim on that sub- 
 ject she gave it away when she signed this Treaty with the United 
 States and afterward with Great Britain. If she gave it away then 
 directly, or by implication to any extent, then the Treaty touches the 
 question of Behring Sea in this case. If she did not, that possessioii 
 continued unbroken down to 1867 when she conveyed it to the IJnited 
 States. It all turns then — all these questions that are submitted to 
 you except so far as the facts are undi!»puted because the possession is 
 undisputed, — it all turns upon the question whether in the treaties of 
 
ORAL ARGUMENT OF HON. EDWARD J. PHELPS. 153 
 
 1824 and 1825 Eussia. did throw open to these countries the only right 
 that she had previously asserted to be exclusively in herself? If she 
 did, that is one thing. If she did not, then those Treaties so far as the 
 Behring Sea is concerned disappear out of this case. 
 
 Senator MoRaAN. — I understand your contention to be, that in order 
 to throw open, as you say those rights, there would have to be a distract 
 and affirmative expression in the Treaty? 
 
 Mr. Phelps. — Yes, Sir, or else a toleration of an invasion of it. It 
 may be expressed or implied. It is expressed when the nation puts it 
 into a Treaty or a convention : it is implied when she permits the world 
 to come there and interfere with, and participate in, the fisheries. As 
 I pointed out, there is no evidence of actual interruption down to 1867, 
 and therefore if Russia has done anything to weaken her claim she did 
 it by the provision of a Treaty, which, as we shall see, never was acted 
 upon in that sense by either of the parties to it. These two questions 
 then : What is meant by the "North West Coast", and whether Behring 
 Sea is included in the term "Pacific Ocean" and "Great South Sea" 
 are the same question. You are again stating the same thing in differ- 
 ent words. If Behring Sea is included, then you may say the North 
 West Coast runs up and attaches the Western Coast of Behring Sea — 
 what is now Alaska. If Behring Sea was not included, then the North 
 West Coast was limited as we say it was limited. The two inquiries 
 are the same. 
 
 The President. — You are of opinion, at any rate, that the Treaty of 
 1824 has nothing to do with the eastern coast, with the Siberian Coast. 
 
 Mr. Phelps. — I think it has nothing to do with the Siberian Coast. 
 
 The President. — Then Article I would not apply to the Coast of 
 Kamschatka? 
 
 Mr. Phelps. — Certainly nobody claims, I suppose, that it would 
 have that effect. That was one consideration that I was intending to 
 advert to on the question of the construction of this — that if you gave 
 the construction that my friends contend for, you include this whole 
 Siberian Coast [indicating on the map] that nobody ever laid any claim 
 to or had any business with, and which Russia would certainly not 
 have volunteered to surrender. That is one consideration that bears 
 on the meaning. 
 
 Now we come to the meaning of the words in the first Article in the 
 Treaty. 
 
 Any part of the Great Ocean, commonly called Pacific Ocean, or South Sea. 
 
 What is the question? 
 
 It is whether " Behring Sea" in the common speech and understand- 
 ing of men at that time was designated as the "Pacific Ocean", or 
 whether it was not? 
 
 Commonly called — not sometimes called — that is a very different 
 expression. Was it then commonly called and designated as part of 
 the Pacific Ocean? If it was, then this Treaty includes it: if it was 
 not, the Treaty does not include it. If that question is too doubtful to 
 be determined, then we should have to resort to other principles of con- 
 struction to find out what the Treaty m eant. If Behring Sea is included 
 in the phrase "Pacific Ocean", it must be upon one of two grounds— 
 either that the language of the Treaty includes it, that is to say, 
 the description "commonly called Pacific Ocean" includes it. If it 
 does, that is an end of it. If it does not, and the language is found to 
 be ambiguous, then it must be incorporated into the Treaty by the 
 understanding which it is proved the parties had of the definition of an 
 
154 ORAL ARGUMENT OF HON. EDWARD J. PHELPS. 
 
 ambiguous term. I suppose it is quite fundamental in the construction 
 of all contracts, Treaties and everything else — the first resort is to the 
 language of the Treaty — of the contract. Both parties are bound by 
 that. They are not to be heard against their own words in the absence 
 of a consideration that cannot apply to a Treaty between nations — 
 namely fraud. If therefore these words do include Behring Sea in the 
 " Pacific Ocean", thenthe United States are bound by it and Eussia is 
 bound by it. 
 
 If on the other hand the term "commonly called", excludes that, 
 then they are not bound by it. Then in the third contingency : If the 
 Tribunal finds itself in the situation of being obliged to say: "These 
 words are so far ambiguous that we cannot say that they do necessarily 
 include Behring Sea in " the Pacific Ocean ", and we cannot say that 
 they necessarily exclude it, then you have to find out what the parties 
 meant by the use of language which is susceptible of two very different 
 meanings. Which way did they understand it? Both sides set forth 
 very large lists of maps. The moment you go to the meaning of the 
 phrase "commonly called the Pacific Ocean", you have recourse to the 
 maps. There are 105 in Mr. Blaine's list; there are more than that in 
 the British Case or Counter Case. My friend Sir Eichard Webster was 
 mistaken in saying that most of these in Mr. Blaine's list were included 
 in theirs — there are only about ten. He will find, when he compares 
 the lists that there are only about 10 of Mr. Blaine's maps that are to 
 be found in the British Collection, 
 
 Sir Charles Eussell. — Before my friend goes to the maps might I 
 ask him to read M. de Poletica's description of what he understood by 
 the "Pacific Ocean". It is in the despatch my friend has passed over. 
 
 Mr. Phelps. — I have passed over them all. 
 
 Sir Charles Eussell. — The date of it is the 28th February 1822. 
 
 Mr. Phelps. — If you will kindly give it me, I will refer to it. 
 
 Sir Charles Eussell. — It is only this passage. 
 
 I ought, in the last place, to request you to consider, Sir, that the Russian posses- 
 sions in the Pacidc Ocean extend, on the north-west coast of America, from Behring 
 Strait to the 5l8t degree of north latitude, and on the opposite side of Asia and the 
 islands adjacent, from the same strait to the iSth degree. 
 
 Mr. Justice Harlan. — Mr. Adams' reply to that shews that he under- 
 stood that the part of the Pacific Ocean there referred to, was south of 
 the Aleutian Islands, because he speaks of the distance being 4,000 
 miles. 
 
 Sir Charles Eussell. — With great deference not so. Mr. Adams 
 in reply points out that the descriiJtion would cover an extent of ocean 
 which, at one part, south of the Aleutians, would measure 4,000 miles. 
 
 Mr. Phelps. — That has been read before, and does not touch the 
 point of my argument in the least degree. If you are going to examine 
 the witnesses, and find out whether, every time that a man when talking 
 about another point uses the phrase "Pacific Ocean" as including this 
 sea or uses it as excluding it, you never would come to an end. Nothing 
 is more indeterminate on such an inquiry, than the language which is 
 used when the particular point of where the boundary line is, is not in 
 mind and is not in controversy. If I were to ransack history, litera- 
 ture, and travels for the purpose of accumulating instances in which 
 the "Pacific Ocean" is spoken of as not including Behring Sea, why 
 what a mass of material I should bring together. And what does it 
 prove? Nothing at all. Because when the parties vAcre using that 
 general expression their minds were not on the particular point we are 
 now discussing. 
 
ORAL ARGUMENT OP HON. EDWARD J. PHELPS. 156 
 
 So, on the other hand, if you cull this correspondence you -will find 
 plenty of instances in which casual expressions are used which would 
 look one way or the other — (I attribute no importance to them on either 
 side) ; but when you go to maps of geographers from whom we get all 
 our ideas of geography, atlases, charts, maps and so forth conveying 
 and embodying all the knowledge there is — when you come to find out 
 where they drew the line, then you are approaching the answer to the 
 question; what is commonly called the Pacific Ocean? 
 
 Then in the consideration of maps there is a further discrimination to 
 be made, and that will reconcile, in a striking degree, what is, on the 
 threshold, to a superficial observer, the conflict between these sets of 
 maps. A person who has not taken the trouble to analyse them will 
 suppose that there is a great conflict in this evidence — that there is 
 really an enormous conflict: a great many maps say one thing — a great 
 many say another. When you come to analyse, you look at the maps 
 and consider what the map is dealing with, what it is undertaking to 
 show — discriminating those that are authoritative — that are made upon 
 authority, that are made deliberately, from little maps that are attached 
 to liiooks of travel, or to elucidate something which does not require 
 this distinction to be made. 
 
 Now my friend's tactics (if it is not disrespectful to apply a military 
 term to the conduct of a controversy), all through this case, are what may 
 be known as the "battalion system" of witnesses. As I shall have 
 occasion to point out in a great many instances, he has a battalion. 
 They are all in formation. The effect of them is tremendous. We have 
 100 to 150 witnesses swearing to the fact. Are you going to doubt that 
 fact? It is not until you call the roll of this battalion and let each man 
 stand out by himself that you find a large share of them swear directly 
 the other way, — another large share do not swear at all — that those 
 who really support the point as to which they are called, become so 
 insignificant that the battalion shrinks into a corporal's guard. 
 
 It is exactly so with these maps. I was appalled (supposing that I 
 had some idea of what the merits of this question was), when I found 
 there were some 136 maps that apparently on the face of this case defined 
 this boundary differently from what I had supposed. It is not until 
 you analyse the 136 that you find what the result is. To begin with, 
 and to find out what these men meant in 1824 by "commonly called", 
 we may dismiss subsequent maps. They were talking about the geog- 
 raphy of the world as it was understood then. Geography and geo- 
 graphical terms change as everything else does. We should, few of us, 
 recognize maps by which we began Ihe study of geography, as apply- 
 ing to the world at the present time, though tho world is very much the 
 same as it was then. I discard the subsequent maps, and address myself 
 to the consideration of the maps that were then considered authorative — 
 that you may assume in the absence of evidence, guided the views of 
 intelligent people as to these geographical distinctions. So let us con- 
 sider the maps between 1800 and 1823, the American Treaty being 
 in 1824. Then let us remember that these two countries naturally — not 
 to the exclusion of other maps — look at their own; the first resort of a 
 country intelligent enough to have scientific maps and publications is 
 to its own maps. Take the Eussian maps for instance and I shall 
 dispose of what there is to say about that before the recess. There are 
 eleven Eussian maps cited. 
 
 Mr. Justice Harlan. — On both sides. 
 
156 ORAL ARGUMENT OF HON. EDWARD J. PHELPS. 
 
 Mr. Phelps. — On both sides. Four in Mr. Elaine's list, and seven 
 in the British list. All but one of them give a separate name to Behring 
 Sea. It was called at this early date as you know, the Sea of Kam- 
 schatka or "Bassin du Nord" — to some extent the "Beaver Sea." All 
 those eleven maps but one give a separate designation to this sea, and 
 the question is what a Eussian, in making an agreement of that sort, 
 commonly understood? The map that fails to give it is a map by Lisi- 
 anky, which illustrates his book of travels. It is not a geographical 
 map or chart — it is a map annexed to a book illustrating his travels; 
 he did not go into the Behring Sea, and the consequence is in his map 
 no special designation is given to Behring Sea. It is left without a 
 name, but in all the others every one of them — and some of them quite 
 authoritative, you find a separate name given. 
 
 Mr. Justice Harlan. — Mr. Phelps, I would like to ask you there, do 
 you know what some of those Eussian words on the map of 1802 mean? 
 Perhaps Sir Charles Eussell may be able to say? I see on that map of 
 1802, there are certain words marked on what we call Behring Sea in 
 Russian; and below that, certain other words. Do you know what 
 those Eussian words mean? 
 
 Sir Charles Exjssell. — "Beaver Sea", I believe it is called. 
 
 Mr. Justice Harlan. — What is the English of the Eussian words 
 below the Aleutian islands in large letters? 
 
 Mr. Phelps.—" Southern Sea, or still Sea", I think. Sir. 
 
 Sir Charles Etjssell. — There is apparently an alternative reading. 
 The reading of the words to theright is "Pacific Sea or Pacific Ocean"; 
 The words to the left I do not exactly know the meaning of. You will 
 find the explanation Judge, of this particular map, on page 95 of the 
 1st volume of the Appendix to the British Counter Case. It is the map 
 of 1802, and apparently the words below are " Southern Ocean or Still 
 Sea". 
 
 Mr. Phelps. — Yes, that is what they mean. 
 
 Sir Charles Etjssell. — That is No. 24 on that page. You will find 
 the explanation of all of them. There is also the name " Kamschatkha 
 Sea" running parallel to Kamschatka. It is marked on the same plan. 
 
 Mr. Phelps. — Now as to these maps — if you will indulge me Sir with 
 another word before luncheon, I shall be able to dismiss them. I have 
 said that ten of these maps gave a separate designation to Behring 
 Sea. This map has the importance of being in the first place the 
 Official map of the Eussian Government, published by its Quarter Mas- 
 ter General's Department. The others are the work of private Geogra- 
 phers. This is the Official map. In the next place the case shows that 
 this map was actually used in this negociation because a copy of it 
 with manuscript notes of his own is sent by Sir Charles Bagot in his 
 Despatch to his Government on the 17th November 1821 ; so that it is 
 not only official but it was actually used at St. Petersburg between the 
 British Minister and the British Government and transmitted by 
 the representative of the British Government to his own country. 
 
 Now I ask if you have to give a meaning on the part of Eussia to 
 this term " commonly called the Pacific Ocean " are you going to give 
 the meaning that is opposed to ten maps, out of eleven, opposed to the 
 official map of the Government, opposed to the map that was used in 
 the negotiation ? 
 
 I shall now, Sir, with your permission consider some other maps in 
 the case. 
 
 [The Tribunal here adjourned for a short time.] 
 
ORAL ARGUMENT OP HON. EDWARD J. PHELPS. 157 
 
 Sir Charles Eussell. — I have asked my learned friend's permission 
 before he resumes, to point out in reference to the map before Mr. Jus- 
 tice Harlan that there are some other words that had better be 
 explained. 
 
 The President. — If you please, Sir Charles. 
 
 Sir Charles Eussell. — Tou will observe just north of Behring 
 Strait a number of words stretching away to the right and going down 
 in the direction of the 50th degree, — ending just above the 50th degree. 
 The translation of those words beginning from Behring Strait and 
 going down between 55° and 50° is "Part of the northwest Coast of 
 America". I do not, of course, argue upon it; I merely wish to trans- 
 late it. The fact is referred to at page 62 of the British Case. 
 
 Mr. Phelps. — Now, Sir, the question we are upon is, whether or not 
 by this designation of what is commonly called the Pacific Ocean or 
 South Sea, Behring Sea is included? I say that is a question that can 
 only be decided at this day by the authoritative maps then in existence, 
 and which these parties may be presumed to have been informed of, or 
 which we know they had before them. This official and important map 
 of 1802 lays that down in such a way that it is perfectly inconceivable, 
 I respectfully submit, that any negotiators drawing a Treaty intending 
 to include Behring Sea should have left it with any such words as these, 
 with, the map before them showing as it does that it is not included, 
 but is designated by a different name; — ^that if they desired to include 
 it they would not have used language that would have included it. 
 Before we have done with this discussion, I shall show that it was pro- 
 posed to introduce just such language, and Eussia refused. 
 
 Before leaving the Eussian maps, however, let me call attention to a 
 map of 1817, which is named in the British list and which is likewise 
 so far an official map, called the Eussian War Topographical Depdt 
 Map ; likewise an official and public map published by the Eussian Gov- 
 ernment much later, being the then latest Eussian map at the time of 
 these negotiations; that is to say, being 5 or 6 years old. In that, 
 Behring Sea is named in the same way as Okhotsh Sea is, and Pacific 
 Ocean is named. So that if the Eussian Government had reference to 
 or was informed by its own latest official map, it states still more 
 stronglj'^ and clearly than the map, if possible, of 1802. 
 
 Let me now refer to the American maps. If the Eussian maps, which 
 they must be presumed to have been instructed by and which they did 
 have before them, designate this water as a separate sea, let us see 
 what the Americans, if they referred to their own maps, had in the way 
 of information before them. Of the 10 maps published in America and 
 cited, aU but two give a separate name to Behring Sea. You have 
 there exactly what you find on the other side of the Atlantic, in Eus- 
 sia. What about those two? One of them is a map which is in an 
 atlas published by Fielding Lucas, in 1812, and the map in that atlas 
 immediately preceding it and the map immediately following it give 
 the separate name of the Sea of Kamschatka to this Behring Sea. The 
 particular map which my learned friends set out from Lucas' Atlas, 
 does not give a separate name to Behring Sea, but when you turn 
 over the page and look at the one that precedes it and when you 
 turn over the page the other way, and look at the one that succeeds it, 
 you will find the publisher of that map did understand this to be a sep- 
 arate water, and omitted that in this particular map because it was a 
 map of the World; the one preceding it is the map of the western 
 hemisphere, and the one following it I do not know the name of; but 
 in the map of the World, which, of course, would render this very much 
 
158 ORAL ARGUMENT OF HON. EDWARU J. PHELPS. 
 
 smaller, the words are omitted which he gives in the previous map. The 
 other map in which it is not given a separate name, is one published by- 
 Carey & Son, Philadelphia 1823; the map is map 3 in the atlas, and the 
 subject is not given, though the eastern part of Behriug Sea is shown 
 and it has not a separate name. 
 
 Why is only one of those maps cited? We have not the other maps, 
 and they are not in the case, and I cannot answer the question. I infer 
 that if "map Fo. 2 and map No. 4 had been produced, you would have 
 found just what you did in Lucas' Atlas; that in the other maps the 
 separate words, " The Behring Sea", are given. With that exception, 
 those are all the American maps. Then, what is it that you are asked 
 by my learned friends to find? It is that, in giving a definition to the 
 words " commonly called the Pacific Ocean", you are to accept a defini- 
 tion which is opposed by 10 out of 11 maps in Eussia and by 8 out of 
 10 maps in the United States with the explanation that I have given, 
 which show that the omissions in those three maps, one in Eussia and 
 2 in America, are totally inconsequential. 
 
 Let us go a little further. I need not say that France at that day 
 was largely the headquarters of the best geographical science, and the 
 best scientific knowledge in the world; and it was so prominent in 
 diplomacy, that the French language became the language of diplo- 
 macy, and remains so to the present day, notwithstanding the vast 
 increase in the region over which the English language is spoken. 
 France contained geographers so celebrated that their names are known 
 to everybody — the names of Bru^, Lapie and Malte-Brun even men of 
 such small geographical attainments as I have are familiar with, and 
 it is not to be supposed that educated persons, Diplomatists and Gov- 
 ernments wei'e ignorant of the great contributions that had been made 
 by France to the Science of the Geography of the World. There are 15 
 French maps made between 1818 and 1823, and all give the separate 
 names of "Mer de Behring" and "Bassin du Nord"to this Sea. Then, 
 to bring it within their definition that the Pacific Ocean does include 
 Behring Sea, you wipe out at once the results of the work of these men, 
 who were then the greatest geographers in the world beyond doubt. 
 Whether they are so now, may be another question ; but those names 
 were then superior to any others, and France was taking the lead among 
 nations on the subject of diplomacy. 
 
 'Sow, let us go to the English Maps, not because England was engaged 
 in the negotiations that I am now dealing with; but because we in 
 America, deriving our literature and language from the mother-country, 
 are, of course, supposed to be, and it is fairly to be inferred that we were, 
 acquainted at that day with the English maps and with other English 
 literature and science; and, while perhaps in the estimation of the 
 world they were not as high at that time as those of France, still they 
 were of a very respectable character, — more so, even in the estimation 
 of the world than those of America, which were not as widely known. 
 
 When I speak of the maps that are referred to on both sides, the Tri- 
 bunal will, of course, understand that I mean maps published between 
 1818 and 1823. I shall refer briefly at last to those maps that would 
 not come within that definition ; and when I say so many are cited on 
 one side and so many are cited on the other, I mean so many published 
 between those dates are cited on one side and the other. When you 
 go to the British maps there is more diversity. A great many are 
 cited, some that are of authority, and some that are less so. There are 
 fiye charts, single sheet charts, and general maps; and by the term 
 "general" I mean a map that assumes to give both the land and water 
 
OKAL AROUMENT OF HON. EDWARD J. PHELPS. 159 
 
 divisions, not a map that gives the land nor a map that gives the water 
 exclusively, but a map that is large enough and intended to give the 
 whole. There are five of them and everyone of them called Behring 
 Sea " the Sea of Kamschatka." 
 
 Then there is another division that you may call maps, in atlases con- 
 taining quite a number of maps in the same publication, and 20 of those 
 are wljat I call general maps, and 15 of those are land divisions. Of 
 those 20, 16 give a separate designation to Behring Sea. It is called 
 the sea of Kamschatka in 16 out of the 20 English maps; and the other 
 4 which do not give it a separate name are a map of the world in Ostell's 
 atlas, in 1810, a map of the world in Goldsmith's Atlas in 1813, a Mer- 
 cator's map of the world in Goldsmith's Atlas, and a map of the globe 
 in Bradley's Atlas in 1813. None of those are of special authority. 
 They are, I should infer, school-book atlases. They are not official. 
 They are not from any author celebrated as a geographer, and they are 
 all, you see maps of the world. When you are restricted to the size of 
 a quarto sheet, which atlases usually are, and undertake to give a map 
 of the whole world, you have not room for the separate designations on 
 land or water such as are always given when you give a map of a part 
 of the world, having room to explain the divisions. Take the United 
 States for instance; in a map of the world you find the United States 
 laid out on it, but you do not find any division of states. 
 
 There are some German maps cited, that may be worth a moment's 
 consideration. Germany was not a country concerned in the negotia- 
 tions, or a country then, as far as I am aware, particularly celebrated 
 for its geographical knowledge. At the same time, as they are cited 
 they should be attended to. There are 16 German maps in this case on 
 one side and the other; three of them are translations of maps that I 
 have dealt with before. Another is a reproduction of one of Lapie's. 
 Of course that adds nothing; but there are 12 that are original in 
 Germany by different cartographers, among them several geographers 
 of respectability and reputation. In all these except two, the Sea of 
 Kamschatka has a separate name, so that out of 12, 10 German maps 
 give a different designation. The two exceptions are in an atlas — both 
 in the same — published in Weimar in 1816, which is probably a compi- 
 lation, because in the same atlas another map gives this sea the name 
 of Behring Sea. 
 
 I should have spoken in connection with the English maps before 
 leaving that subject, of the Arrowsmith maps, which are the leading 
 and best British maps of that period, and of which you have several, 
 and they are worthy of a brief separate reference. Of these Arrow- 
 smith maps the first one is dated in 1790, ten years earlier than the 
 period to which I have thus far limited myself It is called 
 
 Chart of the world exhibiting all the new discoveries to the present time with the 
 tracts of the most distinguished navigators from the year 1700 chiefly collected from 
 the best charts maps voyages etc., extant, by A Arrowsmith, Geographer, as the "Act 
 directs. London 1790". 
 
 In that Chart Behring Sea is termed the sea of Kamtchaska. 
 
 Sir Charles Eussell. — What is the reference to that? 
 
 Mr. Phelps.— This is in Mr. Blaine's list in the Appendix to the 
 United States Case, Volume I, page 288. 
 
 Senator MoEaAN.— What is meant by "as the Act directs"? 
 
 Mr. Phelps. — I suppose it refers to some Act of Parliament. 
 
 Lord Hannen.— I think you will find that refers to its being regis- 
 tered at Stationers Hall, or something of that sort. 
 
160 ORAL AEGUMKNT OF HON. EDWARD J. PHELPS. 
 
 Mr. Phelps.— It may be— I really do not know, and Lord Hanneu 
 of course would know better. The second map of Arrowsmith is dated 
 1794, and is probably a second edition of the same map and contains 
 the same designation of Behring Sea. 
 
 Senator Morgan. — Is there the same reference to the Act? 
 
 Mr. Phelps. — 1 do not know. I have no memorandum of that. 
 
 Lord Hannbn. — All I meant to say is that it relates to the mode of 
 publication. It has nothing to do with the map itself. It is the publi- 
 cation of it. 
 
 Mr. Phelps. — Then you come to the map of 1802 which is given in 
 the list of the British Counter Case. It is called 
 
 Chart of the Strait between Asia and America with the coast of Kamschatka. 
 
 And it appears in an account of a geographical and astronomical 
 expedition to the northern part of Eussia, and in that Behring Sea has 
 no distinctive name. There is an Arrowsmith map in which it is not 
 given separately, but Billing's Exploration, while it carried him across, 
 was not directed to those waters. This is really little better than a 
 route map, and the Pacific Ocean shown as far south as 47° is not 
 named at all. Showing that this is intended as an illustration of that 
 route or as a Chart. 
 
 In the fourth map (1804) the eastern part of Behring Sea is included 
 as far west as Behring Island without a separate name, and the Ocean 
 is called the North Pacific Ocean. This is a land map of the Continents 
 of Forth and South America. It is not a general map as including 
 water divisions. 
 
 Sir Charles Eussell. — There is a map of America of the same year 
 1804. 
 
 Mr. Phelps. — Yes, I am about to mention that. That is a fifth map 
 called " a map of America ". The same remarks apply. In that map 
 there is no specific name for Behring Sea. These are probably included 
 in Aii'owsmith's General Atlas of 1804 mentioned in Mr. Blaine's list, 
 and very likely it may have appeared there. 
 
 Now in 1810 thereis an Arrowsmith map in 9 sheets, with corrections 
 to 1818; includes Behring Sea, but shows it as a large, blank, unnamed 
 space, and there is not a separate name. A large part of Behring Sea 
 is not included. It cuts off about latitude 62°. He does not include 
 in the Pacific Ocean the Sea of Kamschatka, otherwise he would have 
 given the whole sea, and not limited his chart to latitude 62°. He 
 included the portion he did, because he found it necessary to take in 
 that part of the Pacific Ocean now known as the Gulf of Alaska. 
 
 The 8th map, 1811, in the British Counter Case, a hydrographical 
 chart of the world by Arrowsmith, has Behring Sea named the Sea of 
 Kamschatka, and the North Pacific Ocean is given as a separate body 
 of water. This marks all the waters of the globe, and is not confined 
 to one sea. 
 
 The 9th map in Mr. Blaine's list is an Arrowsmith map of 1811, and 
 Behring Sea is there named the Sea of Kamschatka. 
 
 The 10th map is 1818, of Arrowsmith, and Behring Sea is there 
 named the Sea of Kamschatka, and the North Pacific Ocean is sepa- 
 rately specified. 
 
 There is another map of 1818, a map of Asia by Arrowsmith of the 
 same year, and Behring Sea is not named, though a considerable part 
 of the western side of it is included. The difference with the same 
 geographer is that one is a map of Asia, and the other a hydrograph- 
 ical map, or the countries round the north pole. 
 
ORAL AEGUMENT OF HON. EDWARD J. PHELPS. 161 
 
 The I2th map by Arrowsmith includes the greater part of Behring 
 Sea. That is the map of 1822 and it is stated in the British list as 1822, 
 but it shows additions to 1823, and it cannot have been published till 
 1823. There is something very curious about that map. If it can be 
 supposed to have been before the parties in that-negotiation, and there 
 is no evidence that it was — my learned friend, Sir Eichard Webster, 
 infers it was not, and I infer it was not. 
 
 Mr. Justice Harlan. — You have references about that; for in Sir 
 Charles Bagot's letter to Mr. Canning of October the 17th, 1823, he 
 speaks of a certain locality as laid down in Arrowsmith's last map. 
 
 Sir Charles Russell. — We are not sure of the exact date of that. 
 We have no means of ascertaining the particular edition; but the Rus- 
 sian map, the Quartermaster-General's map, and Arrowsmith's map 
 were in the hands of the negotiators. 
 
 Mr. Phelps. — I was going to call attention to those letters. It can- 
 not have been both those. It could hardly have been those in the 
 American negotiation, 1 agree with Sir Richard Webster, because that 
 negotiation took place in 1823 and this map was so recent it is hardly to 
 be presumed that with no communication and no particular reason for 
 it, it had found its way there. 1 1 is not produced by my learned friends. 
 If it is because they concur with us that it probably was not used, then 
 its omission to be presented is of no consequence; but if they are at all 
 of the idea that this map was one that was referred to or was before 
 them, — that by it is meant Arrowsmith's last map, then it should have 
 been produced. 
 
 Lord Hannen. — I thought there had been an explanation, or 
 attempted ex])]anation, that an enquiry was made in London, and it 
 could not be found. 
 
 Sir Charles Russell. — Yes ; I could refer to the page about that. 
 
 Mr. Phelps. — We have made every enquiry; and, df course, we 
 should not have the access to the British publications and documents 
 that my learned fi-iends have on the other side. We have made every 
 effort that we could to find that map, but without success. It has dis- 
 appeared, and we cannot find it even in the British Museum, or in the 
 Libraries, or anywhere else. From that I should infer it was not very 
 celebrated. 
 
 Senator Morgan. — I think you have spoken of the Arrowsmith 
 maps as hydrographic maps'? 
 
 Mr. Phelps. — One of those that I passed over is a hydrographic 
 map. 
 
 Senator Morgan. — Is that intended to indicate they are made 
 under the authority of the Hydrographic OfiQce? 
 
 Mr. Phelps. — I do not so understand it. They are only intended as 
 hydrographic maps by the Author. 
 
 Sir Charles Russell.— But he was, in fact, the Hydrographer. 
 
 Lord Hannen. — That is now a separate Government Department. 
 
 Sir Charles Russell.— And I think he was then called "Hydrog- 
 rapher to His Majesty." 
 
 Senator M(jrgan. — Did he have a Commission? 
 
 Sir Charles Russell. — Well, whether it was by Patent or not, I 
 do not know. 
 
 Senator Morgan.— He must have had some authority to be called, 
 " Hydrograi)her to His Majesty." 
 
 Mr. Phelps. — Whether he had or not, I am utterly unable to say; 
 nnd I do not feel authorized to say that he had an official authority. I 
 do not know what he had. 
 B s, PT XV 11 
 
162 ORAL ARGUMENT OP HON. EDWARD J. PHELPS. 
 
 Sir Charles Eussbll. — ^In one of the maps of 1822, he describes 
 himself as "A. Arrowsmith, Hydrographer to His Majesty." 
 
 Mr. Phelps. — Whether that means anything more than it does when 
 a Milliner announces herself as "Milliner to Ser Eoyal Highness, the 
 Princess of Wales," I-really do not know, and do not claim anything 
 from it. If he had an oflcial authority, it adds to the authority of the 
 map ; if he had not, then it is the best conclusion of Mr. Arrowsmith 
 who, at that time, was the principal Geographer and Designer of Maps. 
 
 Senator Morgan. — It all seems to have been done in pursuance of 
 some Act of Parliament. 
 
 Mr. Phelps. — Lord Hannen explains that Act as being an Act 
 having reference to the publication and not to the authority. This is 
 a question also upon which I have no knowledge. 
 
 Mr. Justice Harlan. — Sir Charles, in the memorandum there in 
 the British Case of that map of 1818, it is there stated with additions 
 to 1823. 
 
 Mr. Phelps. — I think not. I think the map in which that is con- 
 tained is 1822 "with additions to 1823," — there may have been subse- 
 quent additions to that. 
 
 Mr. Justice Harlan.— "1822, with additions to 1823". When that 
 memorandum was prepared, by whoever made it, he must have had the 
 map of 1822 before him. Is that map in the case; or can it be got. 
 
 Mr. Phelps. — No, that is the map that cannot be found; it is not in 
 the case. Those words are taken from the title, and the title is obtained 
 from I do not know where. 
 
 The President. — No copy is to be found? 
 
 Mr. Phelps. — We have not been able to find any, and my learned 
 friends say the same thing. 
 
 The President. — Neither Sir Charles Bagot's copy, — no copy in 
 the world? 
 
 Mr. Phelps. — No. How they got the title I do not know. I infer, 
 from finding the map referred to in some book of geography, or some- 
 thing of that sort. 
 
 Mr. Justice Harlan. — The value of it must depend on whether it 
 was taken from something else. 
 
 Lord Hannen. — It would come with the fresh edition with additions. 
 
 Sir Charles Eussell. — I understand by referring to N° 98 in the 
 Appendix to the Counter Case, volume I, that explains it; and what I 
 understand is, this was in fact at the British Museum, and it purports 
 on the face of it to be a map published originally in 1822, but also on 
 the face of it appear to be fresh additions to 1823, that is the only map, 
 and it did not involve seeing separately the map of 1822 at all. It was 
 the map of 1822 with further additions to 1823 upon it. 
 
 Mr. Justice Harlan. — It was, then, a map of 1823? 
 
 Sir Charles Eussell. — It was a map of 1823. 
 
 Mr. Justice Harlan. — That is not in the case? 
 
 Sir Charles Eussell. — That is referred to in N" 98. 
 
 Mr. Justice Harlan. — But the map is not here? 
 
 Sir Charles Eussell.— No, it is in the British Museum. 
 
 Mr. Phelps. — The objection to that is, we are assured by the British 
 Museum people that it is not there. 
 
 Sir Charles Eussell. — Not the map of 1823? 
 
 Mr. Phelps.— No. With regard to this map of 1822 or 1823, it was 
 said, in response to the enquiry of our agent whom we sent there, by 
 the custodian of that branch of the British Museum that there was no 
 such maj) there. 
 
ORAL AEGUMENT OF HON. EDWARD J. PHELPS. 163 
 
 It is really of no Importance. We give this subject more time than 
 it deserves. I agree with my learned friend, Sir Richard Webster, that 
 this map could not have been before these negotiators. The reference to 
 Arrowsmith's last map is the last map that was probably then in hand. 
 That might be either one of those — the hydrographic map I have 
 referred to, or the map of 1818 of the countries round the North Pole 
 — possibly that of 1811, two of which appear in the case. I now speak 
 of the American negotiations; it is plain that when the Treaty of 18L*4 
 was negotiated between Great Britain and the United States, this map 
 could not have been before them, and there is no evidence to show that 
 it was. I will consider later on whether it came too late and figured in 
 the negotiations of the Treaty of 1825, which is a very different ques- 
 tion; it is enough for my purpose, that there is no pretence that it was 
 before Mr. Adams or M. de Poletica or the Russian Foreign Office — no 
 pretence on the evidence that there was a reference to it, and from its 
 date there could not have been, especially as communications at that 
 time of the world were much slower in getting to foreign countries 
 than they are now, and especially when there was no possible object 
 or inducement in either country to refer to it. 
 
 There are some other earlier English maps — Cook's Voyages — Lieut. 
 Roberts' chart of 18(»8 published in London, in which Behring Sea 
 appears as the Sea of Kamschatka — the various maps of Cook's dis- 
 coveries earlier than that, before the century commenced; all of them 
 vary, and of course are merely maps to accompany particular discov- 
 eries, not geographical maps or charts. 
 
 IS'ow let me put this question with some degree of confidence. Sup- 
 pose it were necessary upon the evidence in this case, that is to say 
 upon the maps, for there is no other — the authors of this negotiation 
 have long passed away and have left behind them no evidence of what 
 was in their minds or of what was said in these negotiations except 
 these letters — suppose it were now necessary to decide this question of 
 whether Behring Sea was or was not included in the term Pacific 
 Ocean in that Treaty by the maps, that is all the evidence that there is. 
 
 Lord Hannen. — You say that is all the evidence. You have not 
 referred — probably you are going to — to the treatises. 
 
 Mr. Phelps. — I was not intending to refer to gazeteers. They are 
 principally of a later date. There are a few cited of a previous date, 
 but they are very inferior to the map for the purpose of laying down 
 the divisions and subdivisions. 
 
 It is not, as I tried to explain this morning, the observation of a 
 writer or a speaker when his mind is not upon the point which is in 
 dispute. 
 
 But when a geographer of acknowledged authority undertakes to 
 lay down a map for publication, possibly officially, certainly with all 
 the prestige he has, and open to the criticism of the world as to its 
 accuracy, then it shows what he thought. It may be worth little, 
 or worth much; still it shows what he understood. Men may write 
 books, because to the making of books there is, unhappily, no end; 
 they may use general phraseology which amounts to nothing either 
 way. I could not rely for a moment on casual expressions that might 
 be accumulated on our side of the contention, and I pay no regard to 
 the few that have been- brought together on the other side of the con- 
 tention. We have not attempted to do that. But when a map is made 
 and published to the world and intended to be accurate — it is there 
 you have to look, if you value it, to ascertain either the authoritative 
 speech of men, or the common understanding of men. Because I need 
 
164 ORAL ARGUMENT OF HON. EDWARD J. PHELPS. 
 
 not repeat that we all, who are not the sources of geographical knowl- 
 edge, get our ideas on that subject from the maps with which we are 
 familiar. 
 
 Now I repeat, was or was not that sea "commonly called" part of 
 the Pacific Ocean? And the answer to that is almost unanimous — all 
 the authorities of the maps are that way. 
 
 The President. — Do you think it would be easy to solve the ques- 
 tion if it was put for to-day and not in 1824 or 1825, whether two 
 diplomatists using the word Pacific Ocean, and making an analogous 
 Treaty to that you are speaking of, intended to include Behring Sea 
 in the term Pacific Ocean? 
 
 Mr. Phelps. — I by no means assert that it would. 
 
 The President. — I do not know whether to-day we consider Behring 
 Sea as being part or not part of the Pacific Ocean, and I believe most 
 of my fellow diplomatists would say the same. 
 
 Senator Morgan. — If you say "a right vested in the ocean com- 
 monly called the Pacific Ocean", it would take a very astute mind to 
 figure out the proposition that you did mean Behring Sea. 
 
 The President. — Or that you did not mean it. 
 
 Mr. Phelps. — I have not particularly examined the later author- 
 ities. I have confined myself to the period of time when this language 
 was used, but I readily conceive, if the question were to be taken now 
 it might be open to the same uncertainty. But, Sir, what is the result 
 of that? If when accomplished and experienced diplomatists, in bring- 
 ing a long negotiation to an end, were attaching importance to the 
 inclusion of Behring Sea as a part of the Pacific Ocean is it conceiv- 
 able that they would not have said so? 
 
 It is because, as I shall be able to point out upon something better 
 than my suggestion, it was totally inconsequential to those countries, 
 that Behring Sea should be included, that they omitted to use the 
 language which was necessary to include it; and it is not for my 
 learned friends, now, after the dust of 70 years has fallen on the trans- 
 action, to say, "Though we did not say so, we understood Behring Sea 
 to be included; though it was important that it should be included, we 
 did not include it in terms; but now we argue that it can be strained 
 inside of the words 'Commonly called the Pacific Ocean', though at 
 that time it was not commonly so called." 
 
 It is for the party that seeks to include within a grant a particular 
 territory to make it out. He has the affirmative of the proposition. 
 When I have bought whiteacre by description and claim that it in- 
 cludes blackacre, which the grantor denies, it is for me to make out 
 that in saying one thing he meant another — that in saying whiteacre 
 he intended to give the description "including blackacre" or "black- 
 acre also"; that under the circumstances it was in some way included. 
 What does the language of the Treaty say? What does the descrip- 
 tion in its fair construction, dealing fairly with language mean ? What 
 was the common definition of the Pacific Ocean and did it include 
 Behring Sea. I say that on the threshold of the subject it is utterly 
 impossible to bring the description within the language. You may say 
 if you please that it is ambiguous — that I admit; but you cannot say 
 that the language included Behring Sea, I respectfully submit, because 
 the vast majority of the evidence is the other way. And the only 
 escape from the conclusion that Behring Sea was excluded from what 
 is commonly called Pncific Ocean is to say there were maps and state- 
 ments the other way, and therefore perhaps it is not quite conclusive 
 that it was excluded. But if you have to give a meaning to the words 
 
ORAL ARGUMENT OF HON. EDWARD J. PHELPS. 165 
 
 "commonly called", the only question is whether you shall go with the 
 evidence or against it. Whether you should assume that which is com- 
 monly called the Pacific Ocean in nine-teuths of the maps, including 
 all the authoritative ones, is the common acceptation, or whether you 
 shall say the common acceptation is that which is rejected by those 
 maps and by all the evidence which bears upon the siibject. 
 
 We shall find out presently, as we pass along, why that language was 
 not used. It is no imputation on the very eminent men engaged in these 
 negotiations ; they were not children in the business of diplomacy, or in 
 the management of Affairs of State. There were probably no better 
 men on earth at that date to conduct an affair of that kind than Mr. 
 John Quincy Adams, Mr. Stratford Canning and Mr. George Canning. 
 
 Senator Morgan. — Or since that day. 
 
 Mr. Phelps. — I accept it. Sir. The day of gi-eat diplomatists has 
 well nigh gone; the telegraph and the newspaper have nearly put an 
 end to that science. The names of the great Diplomatists are written, 
 and written for the most part on the tomb. 
 
 These were not men struggling with a subject they were incapable of 
 dealing with; and you find not only in the American negotiations, but 
 in subsequent British negotiations that three words would have settled 
 this question forever, on what is now said to be the important part of 
 it, which were omitted to be used. 
 
 Then let us suppose for the sake of the argument, that I am wrong in 
 my conclusion as to the balance of the evidence on the point of what 
 may be said to be " commonly called " Pacific Ocean ; then, what follows ? 
 It is perfectly plain that the evidence does not establish the converse, 
 that Behring Sea was commonly called the Pacific Ocean, If it does 
 not establish that it was not, then what happens? Why, the parties 
 have employed language which is so ambiguous that upon the face of 
 the instrument you cannot assign a meaning to it at all. They have 
 employed language from which you cannot find out, looking at the 
 language alone, whether this body of water was included or was not. 
 Then, what is the result, under the fundamental principles in the con- 
 struction of a contract. When the ambiguity is on the face of the 
 instrument, or when it is raised by extrinsic evidence and language 
 becomes ambiguous that appeared to be plain, — and let me say in pass- 
 ing none of these astute gentlemen could have possibly supposed they 
 had used plain language when they said "commonly called the PaciiSc 
 Ocean " ; if they meant to extend it beyond that undoubted body of water 
 that everybody always called the Pacific Ocean; — but suppose it results 
 in an ambiguity, then you have to ascertain the intention of the parties 
 in the language they used. If it is found that the language they used 
 is consistent with either meaning, that it may include Behring Sea in 
 the Pacific or it may not, then you have to get at the conclusion how 
 the parties understood it. The familiar rules of construction applicable 
 to such a question need not be repeated. You look at the subject mat- 
 ter of the contract, at the object in view in making it, at the situation 
 of the parties, and, where time enough has elapsed, to the subsequent 
 practical construction which the parties themselves have given to their 
 own language. Those are the sources from which, as all lawyers under- 
 stand, you are to derive the meaning and intention of the parties as to 
 the meaning of ambiguous phraseology in a contract. 
 
 The fur seal business was not the matter in dispute. It was, as I 
 have pointed out, first boundary, and secondly the attempt to interfere 
 with that occupation of the North West coast which the United States 
 people were beginning profitably to have, and Mr. Adams complains as 
 
166 ORAL ARGUMENT OF HON. EDWARD J. PHELPg. 
 
 I have pointed out on those two points; — ^the fur-seal is not named, and 
 Behring Sea is not named between Eussia and the United States. 
 
 Then when the Treaty is drawn up, and while it is before the Senate 
 for ratification, the Eussian American Company taking fright at the 
 language employed, which they perceived was vague and might receive 
 different constructions — made a representation to the Eussian Govern- 
 ment; " you are giving away and throwing open to the United States 
 of America our fur and other industries in Behring Sea". That 
 awakened the attention of Eussia to the fact that the language em- 
 ployed in this Treaty might at some time be claimed to be broader 
 than was meant — a second case of using language unadvisedly. Baron 
 de Tuyll, the Eussian minister, was instructed by the Eussian Govern- 
 ment to do what? To go and recall that Treaty? It was not too late. 
 It was before the Senate. It was not ratified. If the Senate passed it, 
 it was still for Eussia to decline the ratification, if it found it was going 
 to receive a construction it did not expect. Did they recall it ? No. 
 They go to Mr. Adams, and point out the ambiguity that might be sup- 
 posed to attach to this language. 
 
 Is there any doubt that he and his government were acting in perfect 
 good faith in doing that? Was he not there on a perfectly sincere and 
 proper errand to say to Mr. Adams, "of course you do not claim a con- 
 struction that neither of us expected?" 
 
 How is he met? How was he bound to be met if the United States 
 claimed any such thing? Did Mr. Adams say to him, "Sir, I am sur- 
 prised to hear that having entered into a Treaty, the language of which 
 is plain, you are here now to inform us that the Eussian Government 
 does not mean what it says, and that, on signing a Treaty with us that 
 says one thing, you notify us you are going to claim that it means 
 another"? Did Mr. Adams meet him by saying, " Sir, you propose to 
 take back one of the very important points on which we are insisting 
 in this discussion. Kow that we have the Treaty you propose to rob us 
 of one of the principal fruits of the Treaty "- That is what Mr. Adams 
 would have said, and he was bound to say it, unless he and his Gov- 
 ernment were attempting to entangle a nation with whom they were in 
 friendly relations, and just about to sign a Treaty, in an agreement 
 which they did not understand they were making. That is not to be 
 attributed to any Government. It is not to be attributed to any states- 
 man. ISTeither party is open to such a charge as that; only upon con- 
 clusive evidence would any person permit himself to make such a charge 
 as that against any sovereign power, or against any representative of a 
 sovereign power. 
 
 Mr. Adams meets that by saying, in effect : " There is no necessity for 
 saying a word about it. We never had any idea of going up there. 
 Why do you suggest to our people a thought that comes for the first 
 time from you." That is the language of a gentleman who, we are told 
 by my learned friend, had been carefully negotiating to get the very 
 access to these industries to which Baron de Tuyll objects and which 
 he repudiates, and he says to Baron de Tuyll: "If you raise these 
 questions you will affect the ratification of this Treaty. Tou know a 
 Treaty has to be ratified by two-thirds of the Senate of the United 
 States." Baron de Tuyll sees the sense of that. He accepts it and 
 permits the Treaty to be ratified, and then, upon Mr. Adams' sug- 
 gestion, he files this document which shows the understanding of the 
 language which Eussia had, and it is accepted by the United States 
 Government without reply. 
 
ORAL AEGUMENT OF HON. EDWARD J. PHELPS. 167 
 
 ITow can there be anything that is more completely conclusive on 
 that point? Imagine two individuals making a contract. I am making 
 a contract with my friend on some important matter. Unluckily there 
 has crept into the contract some language that may be ambiguous. 
 My friend comes to me and says, " Of course, you know our under- 
 standing. You do not mean to attribute such and such meaning to 
 this term in the contract". What am I bound to say to that? If I do 
 insist upon it, 1 am bound to say so. I am bound to say, " Sir, I do 
 not agree with you. I do not agree to your interpretation of these 
 ambiguous words. I will tell you what I understand." But suppose 
 
 I say, "Why my dear friend, there is no occasion to mention that, I 
 never claimed any such thing. Do not interrupt the execution of this 
 contract by any such cavil. If you want to send me, after the contract 
 is executed, a paper showing exactly what you understand by it, do 
 so." — "Very well," he says, and so in perfect good faith he signs the 
 contract and immediately sends me such a paper saying, in effect, 
 "You understand. Sir, of course, in the doubtful language embraced 
 in this contract, that it means so and so", and I accept it and file it 
 away. I should like to know, if after that I were capable of going into 
 a Court of justice and claiming against him in opposition to that paper 
 and in opposition to the interview, how I should be received. 
 
 I should be received by being informed that I was engaged in the 
 perpetration of a fraud. I should be received by being reminded if 
 there was an ambiguity in tliis language, even one that might have 
 admitted of my construction, that when my friend came to me and con- 
 fronted me with the question, I gave him to understand that I should 
 not make any such claim, and did understand the contract as he 
 did, and advised him if he thought there was any doubt about it that 
 might be raised after he and I were passed away, that he should send" 
 me a paper which I would attach to the contract, and he did so, and I 
 received it without reply, that I was bound by the construction so 
 adopted. I should like to know how I, or those who might succeed me 
 75 years afterwards and after there had been unbroken possession in 
 pursuance of the contract as he understood it, would fare in under- 
 taking to set up a construction that I had thus formally abandoned 
 and repudiated, and on the strength of which repudiation they had 
 executed the contract and gone on with it all this time. The same 
 rules apply to the execution of a Treaty. You must impute at least 
 ordinary propriety to these Governments, and this leads you inevitably 
 to the conclusion that in the negotiations between the United States 
 and Eussia, it was not intended, it was not understood, that Eussia was 
 throwing open to the United States this valuable and important indus- 
 try which the United States had not even claimed or asked for; but 
 that the United States was content with obtaining from Eussia what it 
 idid obtain, everything that it contended for, subject only to the one 
 provision by which the parties seem to have celebrated and marked 
 the friendly conclusion to which they had brought the whole matter 
 after they had settled their mutual rights, by saying, on each side, for 
 10 years we open these disputed territories to each other. 
 
 Now, I come to the British Treaty. 
 
 The Peesident. — Before we leave this Treaty, Mr. Phelps, will you 
 allow me to ask you it being your construction that Article I and Article 
 
 II are not applicable to Behring Sea! what do you say to Article V? 
 See the Treaty of 1884, page 36, of your first Appendix. Do you think 
 this is not applicable to Behring Sea? 
 
168 ORAL ARGUMENT OP HON. EDWARD J. PHELPS. 
 
 Mr. Phelps. — I see no language in article V tBat extends the appli- 
 cation of the Treaty. 
 
 The Pkbsident. — Might not the Treaty be construed in such a way 
 that Article III and Article IV are the only Articles that refer to the 
 American "North-west Coast, and the other Articles of the Treaty 
 applied to Behring Sea as well, and I might say even to the coast of 
 Siberia? 
 
 Mr. Phelps. — If you refer to Article V I do not know that there is 
 anything in the language of that Article to extend it, neither would 
 it be material, as it seeins to me, to the present controversy whether it 
 was extended or not. The first Artisile, which is the dominant one 
 as to territory, raises this very question whether the Behring Sea is 
 included in the Pacific Ocean. If it is, the Treaty refers to it; if it 
 is not, the Treaty does not refer to it. 
 
 The President. — I would not say Article I refers to territory, 
 Article III refers to territory. 
 
 Mr. Phelps. — I do not think Article I refers to territory. 
 
 The President. — May I beg your attention to the very general 
 purport of the introduction of this Treaty. 
 
 The President of the United States of America and His Majesty the Emperor of 
 all the Russias Tvishing to cement the bonds of amity which unite them and to 
 secure between them the invariable maintenance of a perfect concord. 
 
 These words as you are well aware are generally employed for Trea- 
 ties of a very general application, for Treaties which relate to all the 
 possible connections and relations between two different nations or two 
 different States. 
 
 If this Treaty, and of course, I do not express my view, I put the 
 _point as it might be argued against you, applies only to a question of 
 boundary and navigation and fishing, and so forth along the coast, or 
 in front of the coast, then do you think they would use such a general 
 expression as this, "Wishing to cement the bonds of amity which unite 
 them, and to secure between them the invariable maintenance of a per- 
 fect concord" ? That is a very general expression for merely a bound- 
 ary Treaty. 
 
 Mr. Phelps. — It is. The expression shows that the Treaty is one 
 of a general character. 
 
 The President. — I should think so. 
 
 Mr. Phelps. — But I respectfully submit that those words do not 
 enlarge the specific provisions of the Treaty. It will be observed that 
 the condition of things then was very different from what it is now. 
 This was Russia (pointing on the map] as well as this. Alaska was 
 then Eussia. All this territory and coast, and a good deal more was 
 claimed or had been claimed by Eussia up to that time, but in the very 
 settlement that they made this was Eussia down on the one side until 
 we get to near Japan, and this also was Eussia, so that international 
 relations did not begin between these two countries till you get down 
 to 54° 40', or whatever may be the disputed line. 
 
 Now the Treaty was a good deal more than to settle that line. That 
 was one object of it; and I quite agree that such words might or might 
 not be used. It depends a good deal on the fertility of those who ^epp 
 writing. If the whole country was new, and the right of other conn-, 
 tries to make settlements, and discovery and occupation was still opeif 
 to dispute, Russia's claims to come down as far as it did, were, as Mr. 
 Adams pointed out, only supported by some settlements — some very 
 few, sparse settlements — I believe there was one at Archangel, which 
 was the same as Sitka. Mr. Adams points out, that it no longer had the 
 
ORAL ARGUMENT OF HON. EDWARD J. PHELPS. 169 
 
 exclusive right of occupation and discovery which might have been 
 open at that time to considerable dispute, oii the strength of one little 
 settlement at Archangel. And you will perceive thsit Mr. Adams takes 
 occasion to deny, whether he meant to insist on it or not, but as a part 
 of his argument, and to show Eussia that their claims were not so well 
 established, — he says In effect, "If you choose to get into a debate on 
 the subject of how far Eussia has the exclusive dominion over all this 
 territory, by right of possession and occupation, there are two sides to 
 that question, and we may have something to say upon it". Now, all 
 that is settled. There is, as I said, a grant on each side for 10 years, 
 of the right to visit and trade with the settlements of tbe other, and it 
 must be plain that these general words of friendship cannot control the 
 terms which fix the boundary. 
 
 Senator Morgan. — This was the first Treaty between the United 
 States and Eussia of any kind? 
 
 Mr. Phelps. — Yes. 
 
 Senator Morgan. — It was natural that there should have been an 
 expression to each other of a cordial state of feeling. 
 
 The President. — Yes. I quite admit that. 
 
 Mr. Phelps. — This general language does not help you in determin- 
 ing the meaning of Article I whether Behring Sea was or was not 
 included in the term Pacific Ocean. You get no light from the pream- 
 ble, because it is equally a])plicable and proper in either case. It does 
 not help us to exclude Behring Sea; it does not help us to include it, 
 and when you come to Article V you will notice that it is a limitation 
 on Article IV, which grants this 10 years mutual right. It says all 
 spirituous liquors, firearms, other arms, powder, munitions of war of 
 every kind are always excepted from this same commerce permitted by 
 the preceding Article, that is Article IV. 
 
 Now, Sir, as I have reached the point of considering the British 
 negotiations, perhaps you wUl think it better to adjourn before that is 
 taken up. 
 
 The President. — Yes. 
 
 [The Tribunal there adjourned until Tuesday, the dth July, at 11.30.] 
 
FORTY-NINTH DAY, JULY 4™, 1893. 
 
 Mr. Phelps. — I need hardly say, Sir, that I find it quite as difficult 
 to speak in weather which is so oppressive, as the Tribunal must to 
 listen; and if you perceive, Sir, as I do, that I am taking twice the 
 necessary time to make my propositions half as clear as they ought to 
 be made, I beg you will remember that it is in some measure my mis- 
 fortune and not altogether my fault. 
 
 The President. — We never perceive that you do not make your 
 propositions quite clear, Mr. Phelps. 
 
 Mr. Phelps. — Yesterday, Sir, I was engaged in discussing this much 
 discussed question of the assertion and occupation of Eussia from the 
 time of the discovery of the Islands down to the time of the cession of 
 them to the United States in 1867, and especially relating to the period 
 of time embraced between the promulgation by Russia of the Ukase of 
 1821 and the conclusion between the three Governments respectively of 
 the Treaties of 1824 and 1825; and I had endeavored to point out that, 
 so far as this case is concerned, the whole enquiry embraced in two or 
 three questions in the Treaty results after all in determining whether 
 in the language of those Treaties, and the language it will be remem- 
 bered is the same in both Treaties, that Behring Sea was or was not 
 included under the term "Pacific Ocean"; because as I tried to point 
 out, there is no interruption whatever to the exclusive assertion and 
 occupation of Eussia so far as the far-seal business is concerned, from 
 the time of the first discovery down to the time of the cession, unless 
 such an interruption is found in the language, though as it will be 
 seen not in the results — of the Treaties of 1824 and 1825, by which it 
 could be made out that the access to Behring Sea for general purposes 
 was thrown open to these two Governments. I had said that, of course, 
 in determining that question which really determines all there is in 
 dispute, the first resort is to the language of the Treaty; what is meant 
 by the term, "commonly called Pacific Ocean"; and, in reviewing the 
 maps, which are the only sensible resort for the purpose of giving a 
 definition to those words, I had gone through with the consideration of 
 the maps in discussing the American Treaty which preceded by a year, 
 as you will remember, the conclusion of the British Treaty ; and I have 
 one single observation to make in parting with that topic and in 
 approaching the consideration of the British Treaty. Suppose, Sir, 
 that all the distinguished geographers who were then living had been 
 called at that time as witnesses in a Court of Justice on the question of 
 whether theBehringSea was comprised within what is commonly called 
 the Pacific Ocean, — in other words, suppose this controversy had taken 
 place immediately after the conclusion of those Treaties and some Tri- 
 bunal had been charged with determining the very question that is sub- 
 mitted here to-day; and suytpose all those eminent geographers, then 
 living, whose opinions would have been regarded as entitled to general, 
 and international respect, had been called as witnesses before the Tri- 
 bunal and the question had been put to them as experts in the science 
 170 
 
Oral aegumemI? of Son. edwakI) j. phelps. 171 
 
 of geography, " "What do you understand by the words tbat are here 
 used "? what would have been the answer? You will find the answer 
 in the maps that those men had published and did publish, where it 
 became necessary to put down the answer to that question on the face 
 of the map. Is there any doubt that every one of these witnesses would 
 have given to this language the construction tbat we contend for? 
 
 Now taking leave of the American Treaty, having seen, I think very 
 clearly, that whatever the term "Commonly called Pacific Ocean" 
 means, it was understood by Russia and understood by America as 
 excluding Behring Sea and these industries or trades or whatever 
 there was there, how stands the case of the British Treaty? It is of 
 course conceivable that Russia and the United States had understood 
 this one way and Great Britain had understood it in another way, and 
 although, as I shall contend, that could not make any material differ- 
 ence in the discussion of this question, still it is worth attending to as we 
 pass along, to see if there was a different understanding by one nation 
 in respect of the same language from that which was entertained by 
 both the others. 
 
 In the first place this American treaty was adopted by the British 
 Government, not merely by the employing of identical language; it 
 was adopted upon an agreement that Great Britain would accept just 
 what had been conceded to America; — not merely the language, but 
 the provisions that had been conceded to America. I must ask your 
 attention on that point to the 2nd volume of the Appendix to the 
 British case page 74. It is a letter from Mr. George Canning of instruc- 
 tions to Mr. Stratford Canning: 
 
 Perhaps tlie simplest course after all will be to substitute, for all that part of the 
 projet and counter-projet which relates to maritime rights and to navigation, the 
 first two Articles of the Convention already concluded by the Court of St. Peters- 
 burg with the United States of America, in the order in which they stand in that 
 Convention. 
 
 Russia cannot mean to give to the United States of America what she withholds 
 from us ; nor to withhold from us anything that she has consented to give to the 
 United States. 
 
 The uniformity of stipulations ire pari materia gives clearness and force to both 
 arrangements, and will establish that footing of equality between the several con- 
 tracting parties which it is most desirable should exist between three Powers whose 
 interests come so nearly in contact with each other in a part of the globe in which 
 no other power is concerned. 
 
 This therefore is what I am to instruct you to propose at once to the Russian 
 Minister as cutting short an otherwise inconvenient discussion. 
 
 Subsequent correspondence shows that Mr. Stratford Canning in 
 pursuance of the instructions did exactly what he was instructed to do, 
 that is to say he proposed to the Russian Government to cut short 
 a discussion that I shall refer to in a moment, by adopting between 
 Russia and Great Britain what had been adopted by the United States, 
 and Great Britain. 
 
 Now if that is the case, in adopting these provisions they adopted 
 them as they were understood and intended by the parties. In adopt- 
 ing the language they adopt the construction, and if it is found — I 
 observe that Lord Hannen appears to dissent from that proposition — 
 
 •Lord Hannen. — Well, to put it very clearly, I will not assume that 
 it is so, but suppose it were clear that the Russian Government had 
 led the English Government to think that they put the same construc- 
 tion on the language of the first clause of the Treaty as the English 
 now contend for, you would not then be able to say they were bound 
 by the construction that was understood by the United States. 
 
172 OEAL, ARGUMENT OP HON. EDWARD J. PHELPS. 
 
 Mr. Phelps. — 'So, Sir, that would state au entirely different case, 
 but I think I shall be able to point out presently from the correspond- 
 ence, that, so far from Eussia setting up to Great Britain a different 
 construction of this language from what had obtained between Eussia 
 and the United States, it was exactly the other way, and that Great 
 Britain did understand distinctly that the construction of that lan- 
 guage did not include Behring Sea. When I stated the proposition 
 that in adopting by agreement not merely the language that had been 
 employed by the two other countries they adopted the construction, 
 that is to say they adopted what the agreement meant between the 
 parties, of course, that is in the absence of specific proof to rebut that 
 hy showing the contrary. Any presumption of that sort or any 
 inference of that sort is open to be rebutted, but in the absence of 
 rebutting facts I understand that it would not be possible to contend 
 that where a contract has been made between two parties and a third 
 party agrees with one of those contracting parties, " I will take exactly 
 the contract that yon have given to the other man;" that he does not 
 adopt it upon the construction which the law would give it as between 
 those two parties; and if that construction turned out to depend not 
 so much on the language as on the understanding, why then he has 
 adopted the understanding. But there is a correspondence on this 
 subject that seems to me to make this perfectly clear. In the progress 
 of this negotiation between Great Britain and Eussia, Mr. Canning the 
 Foreign Minister, sent to Sir Charles Bagot who was then the Ambassa- 
 dor at St. Petersburg, a proposed draft of this Treaty, and it will be 
 found on page 63 of the second Volume of the Appendix to the British 
 Case ; and I invite your attention particularly to this language. 
 
 Mr. Justice Haelan. — Sent by whom? 
 
 Mr. Phelps.— By Mr. George Canning, Secretary of State for For- 
 eign Affairs, to His Majesty's Minister at St. Petersburg, Sir Charles 
 Bagot. He enclosed this as Great Britain's proposal, and the first 
 Article reads in this way. 
 
 It is agreed between the high contracting Parties that their respective subjects 
 shall enjoy the right of free navigation along the whole extent of the Pacific Ocean, 
 comprehending the sea within Behring's Straits. 
 
 There are the words which put this ambiguity out of the question. 
 There are the words that, as I remarked yesterday, it is inconceivable 
 should no ^ have been inserted if it was intended by the jiartiesto include 
 Behring Sea, and not leave the whole Treaty upon language so ambig- 
 uous and doubtful, to say the least, as they employed. That shows 
 that the attention of the Foreign Minister and of the negotiators on the 
 part of Great Britain was drawn to this point, and that it occurred to 
 them that more words were necessary. Then "comprehending the sea 
 within Behring's Straits," was proposed to Eussia as if it was intended 
 to make this clear. 
 
 From Eussia in reply we get what you will find in page 68, a counter- 
 draft. They cannot accept Great Britain's proposal entirely, and they 
 sent on their own side a proposal, and you will see that Article 1st in 
 the British proposal becomes Article V in the Eussia n projiosal, and it 
 will be found at the bottom of page 69 in the original French. It is 
 not translated in this copy: 
 
 The High Contracting Parties stipulate on behalf of their respective subjects that 
 free navigation over all. 
 
 Lord Hannen. — "Throughout the whole extent". 
 
ORAL AEGLMENT OP HON. EDWARD J. PHELPS. 173 
 
 Mr. Phelps.—" Throughout the whole extent, as well north as 
 south", and so on, and the words "comprehending Behring Sea" or 
 any similar words are omitted. 
 
 Sir Charles Exjssell.— " And that they will enjoy the right of 
 fishing in the high sea". 
 
 Mr. Phelps.— "And that they will enjoy the right of fishing in the 
 high sea", and so forth. But I speak of the omission in that statement 
 of the words contained in the British proposal. That would have set 
 this question at rest. In other words, Article V is substantially the 
 same as Article 1 of the British contention. 
 
 Sir Charles IIussell.- Would you read Article VI— of the right 
 to navigate Behring Straits. 
 
 Mr. Phelps.— I will read that. 
 
 The President.- How do you construe these words, Mr. Phelps— 
 "as well in the north as in the south"? Where do you put the north 
 and south as of interest between Kussia and England? 
 
 Mr. Phelps. — That is only introducing another ambiguity. They 
 introduce words there that are more ambiguous than the terms 
 employed before; they relieve an ambiguity by a worse ambiguity; but 
 they decline to put in the plain and simple words that would have set- 
 tled the point. 
 
 The President. — Perhaps the Eussian policy had particular views 
 about that at the time. 
 , Mr. Phelps.— Exactly, Sir; that is the very reason. 
 
 Sir Charles Eussell.*— My learned friend will surely be glad to be 
 assisted on this. The words in the Frojet are not " Behring Sea" but 
 " comprehending the sea within Behring Straits". And that is 
 treated by Count Lieven in the memorandum on page 65 as being a 
 claim to navigate the seas in the Arctic Ocean, which he says is a new 
 proposition. It isnot a question of Behiing Sea. 
 
 Mr. Phelps. — i quite understand that and will come to it in a 
 moment. I have not overlooked any word in this correspondence, and 
 I shall not fail to allude to it. What I am upon now is — and I think I 
 shall be able to make myself understood, that on this single and only 
 question with which we are concerned, whether or not Behring Sf a 
 was intended by these parties and understood to be comprised within 
 the term "Pacific Ocean" — the British negociators, I repeat, put into 
 their draft words which would have settled that question and deter- 
 mined it. The Eussians declined to accept it, and left them out, and 
 the British executed the treaty without tliem. That is the point. 
 
 Lord Hannen. — Bat Sir Charles' suggestion, Mr. Phelps, is that the 
 words are equivalent. You will have to deal with that. 
 
 Mr. Phelps. — We will consider that presently. Why, if Eussia 
 meant to include Behring Sea, did she strike them out? What reason 
 can be givjen for striking out from the draft of the Treaty those plain 
 words which, upon the theory of my learned friend, both parties under- 
 stood to be there? Why employ equivalent words unless you can 
 employ better ones? Why supply the place of those plain words with 
 the ambiguous words to which the President just now alluded — " north 
 and south"- The Eussians did not suppose, as we learn from the Baron 
 de Tuyll's communication to Mr. Adams that they were throwing open 
 the fur seal pursuits of Behring Sea to countries that did not ask for 
 them. We see plainly that Eussia did not so understand it, and we see 
 why it was they struck out these jilain words and substituted words 
 which are uot equivalent to them, because they do not add anything to 
 
174 ORAL ARGUMENT OP HON. EDWARD J. PHELPS. 
 
 what was there before. To add to the term "commonly called Pacific 
 Ocean" " as well north as south" adds nothing as far as touches this 
 point. 
 
 Senator Morgan. — Is it shown anywhere, Mr. Phelps, which was 
 first submitted? 
 
 Mr. Phelps. — Certainly, Sir; the British was first submitted, and 
 the Russian you will remember was the contre-projet. 
 
 Kow, the attention of the British was called to this; and you will 
 perceive that it was criticised subsequently in one of these letters 
 which will be found on page 72 of December the 8th from George Can- 
 ning to Stratford Canning. He criticises this contre-projet, and he 
 complains that Article I in his projet is made Article IV in the Eussian 
 contre-projet; and he says in regard to that : 
 
 You -will observe in the first place tliat it is proposed by the Russian Plenipo- 
 tentiaries entirely to change that order, and to transfer to the latter part of the 
 instrument the Article which has hitherto stood first in the projet. 
 
 To that transposition we cannot agree, for the very reason which Count Nessel- 
 rode alleges in favour of it, namely, that the eoonomie or arrangement of the Treaty 
 ought to nave reference to the history of negotiation. 
 
 The whole negotiation grows out of the Ukase of 1821. 
 
 So entirely and absolutely trne is this proposition that the settlement of the 
 limits of the respective possessions of Great Britain and Russia on the north-west 
 coast of America was proposed by us only as a mode of facilitating the adjustment 
 of the difference arising from the Ukase by enabling the Court of Russia, under 
 cover of the more comprehensive arrangement, to withdraw with less appearance 
 of concession, the offensive pretensions of that edict; 
 
 and he continues to the same effect. 
 
 Sir Charles Russell. — I should be glad if you will read the next 
 passage. 
 
 Mr. Phelps. — I will certainly. 
 
 It is comparatively indifferent to us whether we hasten or postpone all questions 
 respecting the limits of territorial possession on the Continent of America, but the 
 pretensions of the Russian Ukase of 1821 to exclusive dominion over the Pacific 
 could not continue longer unrepealed without compelling us to take some measure 
 of public and effectual remonstrance against it. 
 
 You will therefore take care, in the first instance, to repress any attempt to give 
 this change to the character of the negotiation, and will declare without reserve 
 that the point to which alone the solicitude of the British Government and the 
 jealousy of the British nation attach any great importance is the doing away (in a 
 manner as little disagreeable to Russia as possible) of the effect of the Ukase of 1821. 
 
 That this Ukase is not acted upon, and that instructions have been long ago sent 
 by the Russian Government to their cruisers in the Pacific to suspend the execution 
 of its provisions, is true ; but a private disavowal of a published claim is no security 
 against the revival of that claim. The suspension of the execution of a principle 
 may be perfectly compatible with the continued maintenance of the principle itself, 
 and when we have seen in the course of this negotiation that the Russian claim to 
 the possession of the coast of America down to latitude 59 rests in fact on no other 
 ground than the presumed acquiescence of the nations of Europe in the provisions 
 of an Ukase published by the Emperor Paul in the year 1800, against which it is 
 affirmed that no public remonstrance was made, it becomes us to beexceediugly 
 careful that we do not, by a similar neglect on the present occasion, allow a sim- 
 ilar presumption to be raised as to an acquiescence in the Ukase of 1821. 
 
 The right of the subjects of His Majesty to navigate freely in the Pacific cannot 
 be held as matter of indulgence from any Power. Having once been publicly ques- 
 tioned, it must be publicly acknowledged. 
 
 The President. — How would you construe in the meaning of Mr. 
 George Canning these words; — "The right of the subjects of His 
 Majesty to navigate freely in the Pacific?" How do you believe 
 Mr. Canning understood the word "Pacific"? 
 
 Mr. Phelps, — I understand the word "Pacific" there means just 
 what it means in the Treaty. 
 
 The President. — ifot Behring Sea ? 
 
ORAL ARGUMENT OF HON. EDWARD J. PHELPS. 175 
 
 Mr. Phelps. — Bebring Sea for a certain purpose, -which. I shall point 
 out directly, was made of importance in subsequent negotiations, — the 
 right to navigate through Behring Sea unquestionably, because that 
 is specially spoken of iu the correspondence that if vessels cannot 
 pass through Behring Straits no further discoveries in the North could 
 be made. The gate is shut to the whole world, and the right to pass 
 through Behring Straits is spoken of; and it is immediately met by an 
 assurance on the part of Eussia that they had no intention whatever 
 of closing up Behring Straits. 
 
 Lord Hannen. — That had been already the subject of negotiation, 
 because you see the allusion in the passage is this: 
 
 For reasons of the same nature we cannot consent tliat tie liberty of navigation 
 through Behring's Straits should be stated in the Treaty as a boon from Russia. 
 
 Mr. Phelps. — Yes, I see. 
 
 It cannot be doubted that the Americans consider themselves as secured in the 
 right of navigating Behring's Straits and the sea beyond them. 
 
 I am obliged to your Lordship for calling attention to it. That was 
 unquestionably understood. 
 
 Lord Hannen. — But under what words was it stipulated or agreed 
 in any way that the Americans should have the right of navigating 
 Behring Straits and the sea beyond? 
 
 Mr. Phelps. — You will see it in Mr. Stratford Canning's letter, on 
 page 80. 
 
 Lord Hannen. — But I mean what words of the Treaty carry it? 
 
 Mr. Phelps. — It will come in under the Article we have been dis- 
 cussing in the American Treaty, Article I. 
 
 Lord Hannen. — That is, under the term "Pacific Ocean". 
 
 Mr. Phelps. — Under the term "Pacific Ocean". 
 
 Sir Charles Russell. — Fishing and navigation. 
 
 Mr. Phelps. — But as controlled by the other language. It is one 
 thing to concede the right of navigating and, if you please, fishing 
 through the Behring Sea and through the Behring Straits which was 
 never in dispute between the parties; it is another thing to throw 
 open to them, according to the language of this first Article of the 
 Treaty, the right to pursue these various industries. 
 
 In this letter that I was about to refer to, you will see that that was 
 never disputed. Mr. Stratford Canning writes, on page 50, in his letter 
 of the 17th of February, 1825: 
 
 With respect to Behring's Straits, I am happy to have it in my power to assure 
 you, on the joint authority of the Russian Plenipotentiaries, that the Emperor of 
 Russia has no intention whatever of maintaining any exclusive claim to the navi- 
 gation of those straits or of the seas to the north of them. 
 
 It cannot be necessary, under these circumstances, to trouble you with a more 
 particular account of the several conferences which I have held with the Russian 
 Plenipotentiaries; and it is but justice to state that I have found them disposed, 
 throughout this latter state of the negotiation, to treat the matters under discus- 
 sion with fairness and liberality. ^ 
 
 There is another letter somewhere in which this is referred to; and 
 in reply to a letter which you will remember was written by one of the 
 British Negotiators, Russia replies that they had no idea whatever, just 
 as Mr. Canning says was repeated to him, of interrupting ^he naviga- 
 tion through Behring Straits. 
 
 Lord Hannen. — They had at one time an idea of doing so, and said 
 it was a new proposal, they did at one time think of disputing it. 
 
 Mr. Phelps. — Well, they subsequently withdrew from that, because 
 they said they never had any intention of disputing it. 
 
176 ORAL ARGUMENT OP HON. EDWARD J. PHELPS. 
 
 Now, the difference between the right under the terms of this first 
 Article, in reply to the question that ynu put just now, the difference 
 between conceding what was never denied, the right of free navigation 
 through Behring Sea, which could not be denied unless they intended 
 to make it a closed sea, and conceding all that is given under the first 
 Article is very plain, because it is the difference as to the effect of that 
 particular Article on the industry or business with which we are now 
 charged. 
 
 Lord Hannen. — The passage I was referring to will be found at page 
 66, where it is said : 
 
 "As to the clause of the same projet" (that is a letter from Couut Lieven) "hav- 
 ing or its object to ensure to English vessels the free entry into the Icy Sea by the 
 Straits of Behring, it seems, in the first place, that that condition, which is entirely 
 neve, is by its nature foreign to the special object of the negotiation". 
 
 They did not in the first place yield that, but yielded it in conse- 
 quence of further negotiations; and then the question is, on what terms 
 did they yield it, and what was the effect of the terms on which they 
 yielded it? 
 
 Mr. Phelps. — Still, the force of the observation that I have made 
 does not appear to me, I resi)ectfu]ly submit, to be at all diminished. It 
 is plain that the right to navigate through the Behring Straits was 
 not in dispute. If it was in the first place, as suggested by his Lord- 
 ship, that was speedily abandoned by Eussia, who took the ground 
 that they had never intended to deny it, and they did not deny it; and 
 Mr. Stratford Canning writes he is happy to be assured by all of them 
 that there is no question on that point. 
 
 Then on the question whether the fishing in Behring Sea was included, 
 the British, I repeat, proposed words that would have set that at rest. 
 If Eussia meant to assent to that, why strike out the words. She gave 
 no reason whatever. None can be conjectured. There cannot be an 
 objection to using the words that Mr. Canninghad put in this first pro- 
 jet, unless it is that they did not mean to concede so much as that. 
 
 Then you see that the British Government, after those words are 
 stricken out, and the ambiguous language of the present Treaty 
 employed, were laying stress upon the very position in the Treaty which 
 this assumes, and calling attention to the fact that its importance and 
 prominence is dimini.-hed by being at the end of the Treaty instead of 
 at the beginning; and while Eussia accedes to that suggestion, and 
 restores the article to its position in the Treaty which Great Britain 
 desired it to occupy, and conceded its importance, nevertheless they 
 declined to insert the words that would have put this beyond dispute 
 and Great Britain acquiesced in a draft of the Treaty that did not con- 
 tain them. 
 
 How came they to do so, because the point that they were labouring 
 upon, the right of free navigation as the primary question and the 
 boundary line as the secondary question, were equally conceded by the 
 language of Eussia and is explained by what is said by Mr. Canning. 
 Then in Mr. Addington's letter which will be found on page 66 of the 
 same book as late as August 2nd 1824. 
 
 "A convention concluded between this Government" — that is writ- 
 ten from Washington and the words "this Government" means the 
 United States — 
 
 A convention concluded between this Government and that of Russia for the set- 
 tlement of the respective claims of the two nations to the intercourse with the 
 north-western coast of America reached the Department of State a few davn since. 
 
 The main points determined by this instrument are, as far as I can collect fioni 
 the American Secretary of State, (1) the enjoyment of a free and unrestricted inter- 
 
ORAL ARGUMENT OF HON. EDWARD J. PHELPS. 177 
 
 oonrse by each, nation with all the settlements of the other on the north-west coast 
 of America and (2) a stipulation that no new settlements shall be formed by Russia, 
 south, or by the United States, north, of latitude 54° 40'. 
 
 That is the summary of this Treaty as derived by Mr. Addington 
 from Mr. Adams. 
 
 The question of the mare clausum, the sovereignty over which was asserted by the 
 Emperor of Russia in his celebrated Ukase of 1821, but virtually, if not expressly, 
 renounced by a subsequent declaration of that Sovereign, has, Mr. Adams assures 
 me, not been touched upon in the above-meutioned Treaty. 
 
 Not beeu touched upon. That is precisely what I say. 
 
 This assertion which they read, and the language autliorized them to 
 read, as an attempt to exercise an exclusive sovereignty over Behring 
 Sea, to shut it up and preclude navigation, and therefore to shut up 
 the Behring Straits, was completely abandoned; was so withdrawn, 
 was so explained away as something not intended to be asserted, and 
 certainly not intended to be enforced, that the parties were content to 
 let the matter drop, and, as in the letters I read you yesterday, Mr. 
 Canning instructs the Minister at St. Petersburg as follows: 
 
 We do not want to insist upon anything that humiliates Russia by calling upon 
 her in a Treaty to formally renounce what she has asserted. All that we want is to 
 get rid of any such claim as that. That answers our purpose, and therefore when 
 that is assured, the main object that We have in this negotiation is disposed of. The 
 territorial line is altogether a secondary consideration. 
 
 That is the reason why language is adopted in the Treaty that does 
 not in terms refer to the right of navigating there — does not refer to 
 Behring Sea at all, but only to the right of navigating the Pacific. But 
 we are here concerned with the question whether anything more than 
 that was needed, in order to meet the requirements of the case. My 
 learned friends have to contend that Behring Sea, including the seal 
 fisheries that centred at Pribilof Islands, and I believe also on the 
 Commander Islands was thrown open to the world, and not merely the 
 right to navigate. I will read the last clause which I am reminded I 
 have omitted to do. 
 
 Mr. Adams seemed to consider any formal stipulation regarding that renunciation 
 as unnecessary and supererogatory. 
 
 The President. — Might I ask you what you think Mr. Adams and 
 Mr. Addington alluded to when he quoted this subsequent declaration 
 of renouncement by Eussia? What is this declaration: 
 
 The question of the mare clausum, the sovereignty over which was asserted by the 
 Emperor of Russia in his celebrated Uliase of 1821, but virtually, if not expressly 
 renounced by a subsequent declaration of that sovereign. — ■ 
 
 Mr. Phelps. — It is the declaration made by M. de Poletica, and the 
 declaration made to the British Plenipotentiaries. I have read the 
 declaration by the Representatives that they never intended to submit 
 such a claim or to maintain it. That is the declaration he refers to, not 
 the provisions in the Treaty, because he says it is omitted. 
 
 The President. — You mean the despatch in which M. de Poletica 
 said that Eussia might assert Behring Sea was a mare clausum, but did 
 not intend asserting it just then. 
 
 Mr. Phelps. — That is one, and throughout that correspondence it 
 will be found that Eussia continued to occupy more distinctly that atti- 
 tude, and you will find, as I read just now, the assurance given to the 
 British negotiators on the part of Eussia, which Mr. Stratford Canning 
 communicates to his Government, that there was no intention of assert- 
 ing an exclusive olaim — perhaps I had better refer again to that. Oue 
 of these passages is the one I have read at page 80. 
 -12 
 
178 ORAL ARGUMENT OF HON. EDWARD J. PHELPS. 
 
 The President. — That was later. 
 Mr. Phelps : 
 
 I am happy to have it in my power to assure you, on the joint authority of the 
 Russian PlenipoteDti<iries, that the Emperor of Russia has no intention whatever of 
 maintaining any exclusive claim to the navigation of those straits, or of the seas to 
 the north of them. 
 
 Mr. Justice Harlan. — That Is not the declaration referred to in Mr. 
 Addington's letter, 
 
 Mr. Phelps. — No; I was saying that this transpires all the way 
 through. I have not the reference at the moment to the particular one; 
 but you will not have failed to observe from perusing this correspon- 
 dence from the very beginning, Eussia disclaimed, both to the rTnited 
 States and Great Britain, the right to shut up this Sea and make it a 
 mare clausum; — that was disclaimed from the very beginning and all 
 the way through on all occasions, and never asserted; and, therefore, 
 you find both on the American side and the British side in these nego- 
 tiations, they were content to rest on the construction that had thus 
 formally and explicitly been given to the Ukase of 1821 by the Plen- 
 ipotentiaries ; and then they make the Treaty. 
 
 The President. — I would not like to throw any disrepute upon 
 Diplomacy; that would not behove me at all, speaking to you, Mr. 
 Phelps, in particular, but as you made an obituary of diplomacy yes- 
 terday, perhaps we may speak of ancient diplomatists, if not of those 
 of to-day. Do not you think it sometimes happened that two nations 
 living on very friendly terms as Eussia and Great Britain undoubtedly 
 did at that time, if you remember the historic state of the features of 
 Europe between 1820 and 1830, — there was great friendship you will ' 
 remember in 1822, 1823 and 1824 between Eussia and England,^ — do not 
 you believe it may be that when a difficulty arises, or a point which is 
 difficult to interpret, or give an interpretation to, between diplomatists, 
 that they are often satisfied, each maintaining his own point of view, 
 to adopt an ambiguous phraseology leaving to the future to solve the 
 difficulty; and, indeed, very often the future solves many difficulties 
 which diplomatists at the then present time cannot solve? Might not 
 this be one of those cases where Eussia and England each had their 
 view and did not wish to concede a point of principle consistent with 
 their policy, and yet did not care to put their respective principles in 
 opposition to one another'? 
 
 Mr. Phelps. — I shall be quite willing to adopt that view. Sir. 
 
 The President. — I should not call it bad faith; but it is perhaps 
 procrastination. 
 
 Mr. Phelps. — It is a suggestion. Sir, that I am quite willing to adopt; 
 and it is one that I was going to make presently, when we had reached 
 the point. I was not going to omit to discuss it, because it is not for me 
 to anticipate what the conclusion of the Tribunal will be. — When we 
 have reached the point that language is employed here which can be 
 understood one way by one party and the other way by the other party, 
 then we have reached a conclusion which is inevitable; that it is for 
 neither party to assert that his construction was the one adopted. 
 
 Lord Hannen. —And then there would be no contract. 
 
 Mr. Phelps. — And then there would be no contract. 
 
 Lord Hannen. — Then we should have to consider it on general prin- 
 ciples. 
 
 The President. — ^Tes. "We might say, as Mr. Adams did to Baron 
 de Tuyll, the Treaty would stand for itself. 
 
 Mr. Phelps. — Yes; it stands for itself, but subject to the legal rules 
 of construction. A party cannot fortify himself on the one side any 
 
ORAL ARGUMENT OP HON. EDWARD J. PHELPS. 179 
 
 more than on the other by adopting language that is confessedly am- 
 biguous. It leaves the Treaty j ust where it would have been left if they 
 had said in terms in it, " We refrain from settling this point," or " We 
 leave this point open." 
 
 Senator Morgan. — Mi ght I ask you a question , Mr. Phelps ? I under- 
 stand that the fringe of sea round the border of a country to the extent 
 of the 3-mile limit is mare clausum at the option of that country; but 
 has it ever been held that within that limit the right of innocent or free 
 navigation would be or could be under international law denied to any 
 ship or vessel of any foreign country unless the country to whom that 
 border of sea belonged should prohibit it. 
 
 Mr. Phelps. — No, Sir; neither do I understand that the country to 
 which that territory or littoral sea belongs can prohibit merely innocent 
 navigation. 
 
 The President. — ISTo, you said so yesterday. 
 
 Senator Morgan. — And the right' of free navigation stands above 
 every other right in international law; and that is the view that these 
 nations had of fi'ee navigation when they Avere making these Treaties. 
 
 Mr. Phelps. — That is true. There is no power in any nation that I 
 know of to prevent harmless and innocent navigation in a littoral sea, 
 or within the three miles or cannon-shot distance. The only restrictions 
 are those necessary to the accomplishment of some interest or some good 
 purpose, of which the nation is largely its own judge; but Lord Chief 
 Justice Coclfburn, as you will remember, uses very strong language about 
 that, and he says the proposition to exclude innocent navigation even 
 in the three-mile limit is not to be thought of, and I think all authorities 
 concur on that point. 
 
 Now, the questions of the President and of Lord Hannen have drawn 
 me somewhat into hypothetical instances. I do not, for a moment, 
 concede that Great Britain stood in a position where it could have any 
 reservation on the construction of this Treaty, because the understand- 
 ing that took place between Eussia and America as to the effect of the 
 American Treaty was communicated to the British Government more 
 than a year, or almost a year, before. That is found in the Addington 
 letter that I have referred to, and I go back to it to call attention to its 
 date, August the 2nd 1824. It is on page 66 of the same book that I 
 have been reading from. That Treaty was signed the 28th of February 
 the next year. In that document the British Eepresentative communi- 
 cates to his Government from the highest authority, that is the American 
 Secretary of State, what the understanding of the construction of that 
 Treaty was, so that six months after, they adopted it with the knowledge 
 that the construction put upon it by those parties was such as is here 
 expressed. How can any party to a contract, whether it is a nation or 
 an individual, reserve the right in accepting a contract with the knowl- 
 edge of the understanding that the other party lias of it, to repudiate 
 that understanding where the language is ambiguous. 
 
 Lord Hannen. — I do not see where you get from Mr. Addiiigton's 
 letter a knowledge of the construction put upon the words by the United 
 States'? 
 
 Mr. Phelps. — Only generally, when he says in the language I have 
 read. 
 
 The question of the mare clausum, the sovereignty over which was asserted by the 
 Emperor of Russia in his celebrated Ukase of 1821, hut virtually, if not expressly, 
 renounced by a subsequent declaration of that Sovereign, has, Mr. Adams assures 
 me, not been touched upon in the above-mentioned Treaty. 
 
 And that is m reply to the enquiry of the learned President to me; 
 but, under what language, and in what way did Great Britain obtain the 
 
180 ORAL ARGUMENT OF HON. EDWARD J. PHELPS. 
 
 right to navigate here through Behring Straits'? She obtained it 
 because she had never lost it. She refused to accept it as a boon from 
 Eussia; she refused to say, "We will accept as a grant, a giftfrom Russia, 
 a right to navigate this Sea; we insist upon having the pretensions to 
 interfere with that right withdrawn. We do not care that they should 
 be withdrawn formally if that should be humiliating to our friend and 
 ally ; but we want to be satisfied that it is out of the way." The Eepre- 
 sentatives icere satisfied that it was out of the way, and they were 
 apprised that the Treaty of 1824 between Great Britain and Eussia did 
 not touch that question at all. As my associate suggests to me, tlie 
 United States had accepted these renunciations, when they went forward 
 with the negotiation ; they had accepted these renunciations of any such 
 construction of the tjkase of 1821 as they had taken alarm at. They 
 made the Treaty; and when Great Britain adopts the language of that 
 Treaty, she is apprised distinctly.that the United States had accepted 
 those renunciations, and that the Treaty they had then executed was not 
 understood as containing the reference to this subject which is now 
 here insisted upon. 
 
 The President. — Mr. Phelps, I am sorry to interrupt you so often. 
 
 Mr. Phelps. — I assure you. Sir, it is not the least interruption. I 
 am only too happy to be asked a question. 
 
 Tbe President. — I suppose this subsequent declaration of virtual, 
 if not expressed renouncement would be in the allusion to the circular 
 of Count Fesselrode of October 21, which is printed at page 3, and 
 which has been sent to all the Governments; and being a circular, it 
 had the authority of the general declaration of the Russian Govern- 
 ment. I suppose tl)at in your opinion, tbe Governments bolh of the 
 United States and Great Britain may have construed this circular as 
 admitting of their right of navigating freely through Behring Straits, 
 and consequently through Behring Sea. 
 
 Mr. Phelps. — Yes. 
 
 The President. — And consequently would not imply the right of 
 fishing on the way. 
 
 Mr. Phelps. — Yes, fishing is one thing. 
 
 The President. — Well, sealing on the way. 
 
 Mr. Phelps. — That is another thing. 
 
 The President. — Or whaling on the way. 
 
 Mr. Phelps. — Yes, whaling may be regarded as fishing, I do not go 
 into that. It is nOt in dispute. 
 
 The President. — No, it is an analogy. 
 
 Mr. Phelps. — It is an analogy, but we have never Insisted upon our 
 having the right to preclude fishing generally at a distance from laud. 
 We saw what the law was regarded to be, in respect to tlie Newfound- 
 land fisheries, at that time. Wliether it would be the law at this time 
 is a difi'erent question, and depending on different considerations. If 
 it was important to*go into the question whether the right of naviga- 
 tion may carry with it the right of what is called fishing, that is to say, 
 capturing those fish which are the denizens of the open sea, that are 
 attached to no territory, and are in no sense the subject of property 
 that may be well enough conceded ; we have not controverted that here, 
 and if there is no distinction between the case of the seals and the case 
 of the fish in the open sea, then there is very little in the claim to a 
 property or a right of protection in the open sea. 
 
 The President. — What I wish to ascertain is this: that your con- 
 struclion is that both Governments, the United States and the Great 
 Britain, fully understood and admitted that the concession by Russia 
 
ORAL ARGUMENT OF HON. EDWARD J. PHELPS. 181 
 
 of their right of navigating, perhaps including fishing and whaling, 
 perhaps not, at any rate did not include sealing? 
 
 Mr. Phelps. — Yes. 
 
 The President. — And that they fully understood that at the time? 
 
 Mr. Phelps. — Yes; that is our position. 
 
 Senator Morgan.— That is shown by the Ukase of 1799. It takes a 
 plain distinction between hunting and fishing. 
 
 Mr. Phelps. — And you will observe, Sir, that they require no recall 
 of this provision in the Ukase of 100 miles of demarcation from the 
 shore — nothing. This subject is not touched upon — it is not alluded 
 to. The only figure that Behring Sea cuts in this whole matter, is on 
 the question of free navigation so as to pass through the straits, with 
 the addition, perhaps, to the word "navigation," of the words, "navi- 
 gation and deep sea fishing," which go together unquestionably. The 
 right of navigation carries the right of fishing, because fishing belongs 
 to navigation in the open sea. 
 
 Mr. Justice Harlan. — The treaty mentions clearly both navigation 
 and fishing. 
 
 Mr. Phelps. — Yes they are mentioned together. What Eussia with- 
 drew from the Ukase of 1821, as you will see, was nothiug but a con- 
 struction which that language justified, and at which these two Powers 
 had taken alarm and its explanation was : " We meant this only as a pro- 
 tective measure — we did not mean to shut the sea — we did not mean to 
 exclude you from navigation; we shall assert no such right — we are 
 willing to say so in the most formal manner — we intended it as a pro- 
 tective regulation." 
 
 The President. — Do you mean to say that the 100 miles exclusion 
 was maintained after the treaty? 
 
 Mr. Phelps. — It was left untouched in this treaty, and it was not 
 only maintained but these industries were never interfered with in the 
 whole of tlie sea either within 100 miles or without it, until after 1867. 
 
 Senator Mokgan. — But it was negatived as I understand by the 
 right of free navigation to that extent? 
 
 Mr. Phelps. — l^ot negatived, Sir, if you will permit me — only an 
 explanation that it was never intended. 
 
 Lord Hannen, — Is it your theory that the 100 mile limit did not 
 come into existence in Behring Sea? 
 
 Mr. Phelps. — So far as the protective measure, it did my Lord, and 
 of course, consistently with the right of navigation. When you look 
 on the map and lay out 100 miles, it passes through the Aleutian chain, 
 and passes through Behring Straits. If you maintain the 100 mile 
 limit you do shut up the sea, and therefore I do not mean to say that 
 it was literally maintained, but that the protective character — the pro- 
 tective force of the Ukase of 1821, was retained; and as I said yester- 
 day the whole discussion turned out to be, as very frequently is the 
 case, nothing but a misunderstanding. Say Great Britain and America : 
 "You are closing the sea to navigation which is the right of mankind." 
 Says Eussia: "Certainly not; we are protecting our industry." Say 
 Great Britain and America: "We have no wish to interfere with your 
 industries." As I said before if the Ukase had been confined to that 
 in terms, there never would have been any discussion. Then when 
 with that construction — that explanation — that renunciation, if you 
 choose to call it so, of the right to interfere with the navigation and to 
 pass through Behring Straits, is conceded, the protective force of the 
 ukase of 1821 to protect these industries was allowed to be maintained. 
 The best evidence of that is that as before they had never been inter- 
 
182 ORAL ARGUMENT OF HON. EDWARD J. PHELPS. 
 
 fered with, so afterwards they never were interfered with — not a British 
 ship nor an American ship ever entered that sea to interfere with the 
 trade, with the settlement, with the fur-seal industry, or the far bearing 
 industry, which then extended beyond the fur-seal. 
 
 In the Treaty of Great Britain with Spain in 1790 (which will be 
 found at page 33 of the first American Appendix) there is a similar 
 provision by Great Britain. 
 
 Lord Hannen. — That is the origin (as pointed out in your case) of 
 this Treaty. 
 
 Mr. Phelps. — Article 4 of the Treaty between Great Britain and 
 Spain says this. 
 
 His Britannic Majesty engages to take the most effectual measures to prevent the 
 navigation and iishery of his subjects in the Pacific Ocean or in the South seas, 
 from being made a pretext for illicit trade with the Spanish settlements; and, with 
 this view, it is moreover expressly stipulated that British subjects shall not navi- 
 gate, or carry on their fishery in the said seas, within the space of ten sea leagues 
 from any part of the coasts already occupied by Spain. 
 
 That is an illustration of what I am trying to say in regard to the 
 effect of this Ukase of 1821. 
 
 Lord Hannen. — That was a Treaty. 
 
 Mr. Phelps. — That was a Treaty — yes ; and we say that this Ukase, 
 as left by the Treaty, had a similar effect — not that it was specifically 
 provided that they should not approach within a certain number of 
 miles, but they obtained the right of free navigation without obtaining 
 the right to disturb the industries, settlements, and trade, of Eussia. 
 That was at the time when restiictious of trade were common. 
 
 The President. — Mr. Phelps, in the letter of Mr. Canning which 
 you have just read, upon page 73, it is difficult to put those together so 
 as to make what you have just read concordant with the words of Mr. 
 Canning. He says: 
 
 But the pretensions of the Russian UTiase of 1821 to exclusive dominion over the 
 Pacific could not continue longer unrepealed without compelling us to take some 
 measure of public and effectual remonstrance against it. 
 
 You will therefore take care in the first instance to repress any attempt to give 
 this change to the character of the negotiation, and will declare without reserve 
 that the points to which alone the solicitude of the British Government, and the 
 jealousy of the British nation attach any great importance is the doing away (in a 
 manner as little disagreeable to Russia as possible) of the effect of the Ukase of 
 1821. 
 
 Mr. Phelps. — Tes, Sir, it has an effect upon navigation, but you will 
 find that there is not asserted, from beginning to end, any pretence on 
 the part of either of these countries to interfere with these rights. 
 
 The President. — You mean to say that England understood that 
 sealing was excluded, and did not care for it; she only cared to main- 
 tain the right of navigation! 
 
 Mr. Phelps. — Yes — the sealing and all their industries — not sealing 
 specifically more than anything else — the fur industry, their settle- 
 ments, their trade — whatever there was: that the result of this Ukase, 
 as modified by the Treaty, was to leave the right of navigation free, 
 but not to open to the world these valuable industries. 
 
 The President. — Are there any documents, besides the Ukase of 
 1821, from which you might infer that this question of sealing was 
 specifically raised ? 
 
 Mr. Phelps. — No Sir, not specifically raised. 
 
 The President. — I do not see that the English documents make any 
 allusion to the right of sealing, either to except or include it. 
 
ORAL ARGUMENT OF EON. EDWARD J. PHELPS. 183 
 
 Mr. Phelvs.— Tliey do not. Tliat supports my coutention— that 
 when this Ukase of 1821 came out, to the extent the Russians explained 
 it — to the extent that they relied upon it — no question was ever raised. 
 Nobody, on the part of the United States or Great Britain rose up and 
 said: "Tou are excluding us from taking the fur bearing animals". 
 They never had taken a fur bearing animal. 
 
 Lord Hannen. — They did not say so as to the whole. 
 
 Mr. Phelps.— No. 
 
 Lord Hannen. — ^You do not deny that they had the right to go up 
 there and fish for whales? 
 
 Mr. Phelps. — They said only "fishing" — there is nothing about 
 whales and nothing about seals. 
 
 The Peesident. — Do you not think the British diplomatists, iji their 
 eagerness to come to an agreement with Russia, would naturally, express 
 something agreeable to Russia — an acknowledgement of the exclusive 
 right of Russia to take the seals in the Behring Sea. I think any diplo- 
 matist would be very eager to state that as a concession. 
 
 Mr. Phelps. — Undoubtedly, if the special point had been raised ; but 
 the question under discussion was how far the Ukase of 1821 should be 
 modified. The Ukase of 1821 covered that and a great deal more. It 
 was what it purported to cover beyond that that was in dispute ; and 
 when that was renounced and the right of navigation re- affirmed so to 
 speak, that was the end of the controversy and the confusion, if you 
 will allow me to say so, sir, that attends this subject. 
 
 The President, — Then both Governments, the United States and 
 England accepted the maintenance of the Ukase of 1821. 
 
 Mr. Phelps. — Tes, subject to the explanation that they did not 
 intend it to intercept navigation. 
 
 The President. — At any rate your meaning is very clear. 
 
 Mr. Phelps. — Yes. I was about to say. Sir, that the confusion 
 arises, at this late period, in trying to bring this subject to bear upon 
 a discussion with which it has really nothing to do and mingling 
 together the consideration of two very different topics. JSTow let me 
 go back to the application of this to our present discussion. What we 
 claim and all that we claim is this: That from the discovery of these 
 islands down to the cession of them to the United States by Russia, 
 this fur-sealing industry as maintained and carried on and created by 
 Russia and preserved, never was interfered with. No nation — no 
 individual — claimed a right to do what the Canadians claim the right 
 to do in this case; and we claim that as a poweiful confirmation, a cor- 
 roboration, of the title we assert now, and which Russia might have 
 asserted, of course, if it had been challenged at the beginning of this 
 century in 1800. We claim it as a powerful corroboration that during 
 almost a century, if not quite, the right that we stand upon was enjoyed 
 by Russia, and never was interfered with or challenged or questioned. 
 
 Now to meet that — to break the force of that contention — which is 
 all we care for — they say: "Why there was a Ukase of 1821 which 
 asserted this and a great deal more, and that was withdrawn and mod- 
 ified, and the modification of that is to be taken, not as a direct con- 
 cession (because the subject is not mentioned), but as an inferential 
 concession by Russia that she had not this right over the fur-breeding 
 animals." Well, the moment you perceive that that question was not 
 involved — that neither Great Britain nor America in that negotiation 
 or correspondence any where claimed such a right — that no citizen of 
 that country ever claimed such a right — and that the whole discussion 
 was upon the subject of the right of navigation in the sea and through 
 
184 ORAL ARGUMENT OF HON. EDWARD J. PHELPS. 
 
 the sea into Behring Straits, why you perceive, if that view of it is 
 correct, that it does not militate against our proposition that the pos- 
 session and occupation of Eussia has been absolutely unbroken ; and 
 to make it bear upon that you must endeavor to put a construction 
 upon ambiguous language which will make it read as the parties did 
 rot uuderstand or intend that it should read (because they were not 
 disputing upon that point), in such a way as to say: "You may come 
 in here and take the fur-seal in Behring Sea". If it does not say that, 
 it says nothing that is pertinent to this case — it does not touch this 
 case. If the Treaties of 1824 and 1825 do not say in their legal effect: 
 "It shall be lawful for the citizens of the United States and Great 
 Britain to come into Behring Sea and destroy the fur-bearing ani- 
 mals," — if it does not say that, it does not touch this case at all, and it 
 is no matter then what it does say, for our purpose. 
 
 It is therefore the question: Can you put into the language of that 
 Treaty those words, — that is to say by finding general terms in the 
 Treaty that mean that — that express that: Can you find an acknowl- 
 edgment in that Treaty that the pursuit of these fur-bearing animals 
 was open to the citizens of these two countries or open to any one 
 without Eussian permission? 
 
 If you can, then you find that our uninterrupted possession of a 
 century, in our grantors, is broken to that extent. If you cannot, then 
 the Ukase of 1821 and the Treaties of 1824 and 1825 disappear out of 
 this case, and have no relation whatever to this controversy. Well, 
 now, if you can import into tliis Treaty language that has the legal 
 effect of conceding that right,' it is only, at the utmost, by finding that 
 Behring Sea for all general purposes that are covered by the first 
 Article of this Treaty, is included within the "Pacific Ocean". 
 
 When you come to look at the language of the Treaty, you find that 
 the language does not justify it. If the parties choose to use language 
 and take their risk as to what that meant, that risk is determined when 
 you find out what it did mean. If you go further than that and say: 
 "The language is ambiguous and therefore we must find out from other 
 evidence, proper to be considered, what the parties meant by it", then 
 you find out in the first place what America and Eussia agreed that 
 they meant by it. You find that that construction was conveyed to the 
 British Government six months before their Treaty, so that in adopting, 
 in terms, as they did, the provisions of the American Treaty, they 
 adopted the construction which the parties had put upon it; and the 
 suggestion of his Lordship to me that the rule would not apply if Great 
 Britain and Eussia had a different construction, or if Eussia made 
 Great Britain understand that the construction was different, does not 
 arise, because it is exactly the other way. — Instead of Great Britain 
 being made to understand, or left to understand, that Eussia put a dif- 
 ferent construction from that which it had with America, the contrary 
 is conveyed; and they adopt the American Treaty with a knowledge 
 of the construction it contained. 
 
 I respectfully submit that this long discussion and this interminable 
 correspondence, comes down to that, and it is all that it has to do with 
 this case. With other purposes, and for other purposes it had its 
 place — its importance — which has long passed away, and i^ now only 
 historical. The question is whether it touches the case we "have now 
 before us? It does touch this case somewhat — not very fatally — if you 
 can say that it interrupts the uniform possession of Eussia of this s«al 
 industry from the discovery down to the cession. 
 
ORAL ARGUMENT OF HON. EDWARD J. PHELPS. 185 
 
 In order to do that you must therefore find either that the words of 
 the Treaty necessitate such a construction which plainly they do not— 
 or else that the parties so understood it; and you find that America 
 and Eussia understood it in one way, and Great Britain accepts that 
 with the knowledge of the construction that is put upon it, and the 
 reason why she did accept it, and ought to have accepted it, was because 
 that touched a point that she was not contending for. 
 
 If she had been contending for the right to go in and take fur-seals, 
 as she is now, she never would have signed that Treaty without explicit 
 language to that effect and she would have insisted on the words which 
 she proposed in the projet she submitted; because if she did not get 
 that, she did not get the material thing, or one of the material things 
 in dispute. She abandoned that readily; and if she had insisted upon 
 it she would not have got it, because that Eussia would have thrown 
 open to the world this valuable industry is not to be supposed; it 
 would have broken off the Treaty altogether. 
 
 The President.— Could you say that neither the United States 
 nor England had any actual interest in the sealing — they did no care 
 about it? 
 
 Mr. Phelps. — Exactly, and that is the reason they did not insist 
 upon it. 
 
 The President. — Is there any evidence in the case as to the date 
 when the fur industry began — that there was a connection between the 
 sealing in the Behring Sea and the fur industry in London,— when the 
 consignments from Behring Sea to London began — when England began 
 to take any sort of interest in it? 
 
 Mr. Phelps. — I have not the date in my mind. The seal skins first 
 went to China, and the exact date when they began to come to England 
 we will ascertain. 
 
 The President. — Yery likely later than all these. 
 
 Mr. Phelps. — It is not in my mind at the moment. 
 
 The President. — It is not to be supposed that even London furriers 
 were interested then in the Behring Sea fnr industry. 
 
 Mr. Phelps. — Mr. Foster suggests to me that it was a little before 
 the concession to the United States that the market was transferred to 
 London for these furs. 
 
 G-eneral Poster. — The correspondence of the Company shows that 
 between 1850 and 1860 they began to send to London. 
 
 The President. — It seems very likely that it had no sort of effectual 
 interest for the Americans or English to raise the question. That would 
 account for it not having been raised at all. 
 
 Lord Hannen. — What they were claiming was the general right of 
 navigation in the high sea, with all that it carried with it. 
 
 Mr. Phelps. — Exactly. 
 
 The President. — That refers us back to the question of general 
 princijiie. 
 
 Mr. Phelps. — Exactly. They never denied and they never inter- 
 fered practically — their vessels did not go there, either from the United 
 States or Great Britain. They did not at all interrupt the position on 
 which we stand. 
 
 Now, Sir, let me for a single moment — (I have been drawn into say- 
 ing more about this than I intended this morning) — consider the aspect 
 of the case from the point of view of the question that the President 
 suggested a little while ago, and suppose there was a misunderstanding. 
 Suppose the case — not uncommon in the history of contracts — where a 
 contract is signed with language that is ambiguous, that is to say, that 
 
186 ORAL ARGUMENT OF HON. EDWARD J. PHELPS. 
 
 might admit of either of two constructions. One party honestly under- 
 stands it one way, the other understands it the other way. What is 
 the result? That provision of the contract fails. Whether that would 
 carry with it, in the estimation of a Court of Justice, the setting aside 
 of the whole contract, depends altogether on the place and importance 
 of that feature in it. It might or might not; but to that extenb there 
 is not a contract. 
 
 Lord HAWNEN.^Upon that hypothesis, our answer to the question 
 ought to be, " We do not understand." 
 
 Mr. Phelps. — By no means, my Lord. The answer must be in 
 the negative, because if the language does not include it, it does not 
 include it. 
 
 The President. — The question is, whether the language includes it 
 or excludes it. 
 
 Mr. Phelps. — I quite agree. IsTow on another branch of the case, I 
 quite agree, as I have endeavoured to point out, that the language 
 includes Behring Sea. I farther insist that, whether the language does 
 or not, the parties to it understood or intended the language. But I 
 am now on the extreme hypothesis that, if neither the terms of the 
 Treaty, nor any understanding or intention of the parties that was con- 
 current, make it operative, then, we are left where you would be left in 
 a private contract. 
 
 Lord Hannen. — I cannot forbear from saying that you have not 
 referred to sbsequent passages in the Counterprojet in which in effect 
 it distinctly says that Behring Straits and the Pacific Ocean extends 
 up to the Behring Straits. 
 
 Mr. Phelps. — I have not read those passages. 
 
 Lord Hannen. — I have called your attention to it before, or Mr. Car- 
 ter's. It appears to me — I may be taking a mistaken view of it — that 
 it is conclusive. It distinctly draws a distinction between the Pacific 
 Ocean and the Frozen Ocean — I mean as coterminous. 
 
 Mr. Phelps. — But still you do not avoid the difiiculty that half a 
 dozen plain English words that would have settled that question were 
 proposed on the one side and refused on the other. 
 
 Lord Hannen. — That is begging the question. If there were words 
 that carried that meaning it was not necessary to insist on it, if the 
 Eussians by what they said plainly intimated that they understood 
 that the Pacific Ocean extended up to Behring Straits. 
 
 Mr. Phelps. — Yes, but we still do not get over the point fhat not- 
 withstanding this subsequent provision which was in the original projet 
 as well — notwithstanding that they thought it material (as it seems to 
 me that anybody who cared about that feature must think it material) 
 to put in the very words that determine this question. And it was 
 thought material on the other side to refuse. ISTow it would neither 
 have been demanded or refused if the Treaty, in its other terms, had 
 contained language to the same effect. If it had been declined it would 
 have beensaid: " We have already said so ; we need not say it again". 
 Tou find the one Government insisting on that language; you find the 
 other Government declining to adopt it; and you find my friends now 
 insisting that the Treaty should read as if those words were put in, 
 which were refused to be put in. 
 
 Senator Morgan. — But which is the Frozen Ocean? 
 
 Mr, Phelps. — It is the Arctic Ocean — Behring Straits. 
 
 Senator Morgan. — Have they said so. Who is giving that defini- 
 tion to it? 
 
 Mr. Phelps. — I suppose it is a general definition. 
 
OEAL ARGUMENT OF HON. EDWARD J. PHELPS. 187 
 
 Senator Morgan.— You Lave taken it for granted that the " Frozen 
 Ocean" means the Arctic Ocean, and forgotten that Behring Sea is 
 frozen for more than half the year? 
 
 Mr. Phelps. — I have assumed that to be a definition; I do not vouch 
 for its accuracy of course. 
 
 The President. — It has not been contended as yet that Behring Sea 
 was part of the Frozen Ocean — I have never seen that. 
 
 Sir Charles Eussbll. — No. 
 
 Senator Morgan. — I do not know anything about contentions. I was 
 trying to get some information about it. The term is used there; I do 
 not know who has the right to define it. 
 
 Mr. Phelps. — I had rather assumed that meaning, but without any 
 authority of course to ascribe it. 
 
 The President. — Tou would not include Behring Sea in the Frozen 
 Ocean? 
 
 Mr. Phelps. — That had not been my construction of it, but of course 
 it was not a point to which I had given special consideration. 
 
 Senator Morgan. — There are only two oceans there — one is the 
 Frozen Ocean, and the other is the Pacific Ocean, and the line of demar- 
 cation between those two Oceans might just as naturally run through 
 Behring Sea as it would south of the Aleutian range. 
 
 Mr. Phelps. — It might be so undoubtedly; but you are asked to read 
 this Treaty as if the words had been in thai were proposed to be put in, 
 and were left out, and there is not any escape from that, and there is 
 no ingenious reading of the other provisions of the Treaty that will 
 escape it. You may add a new ambiguity and you may argue with 
 ever so much ingenuity that the ambiguity is to have a particular con- 
 struction, but you cannot escape the conclusive fact that the few words 
 that would have settled the question were proposed on one side and 
 rejected on the other. May I ask, Lord Hannen, to what provisions in 
 the subsequent draft or treaty he refers to as determining this. 
 
 Lord Hannen. — In the Sixth Article of the Eussian Counter projet 
 (at page 70 of the 2nd British Appendix) the Emperor of Eussia con- 
 sents that the liberty of navigation mentioned in the preceding Arti- 
 cle — that is the navigation throughout the whole extent of the Pacific 
 Ocean which you refer to. He consents that the liberty of navigation 
 extends under the same conditions to Behring Straits and to the seas 
 situated to the north of that strait. And then it goes on — " all Eussian 
 and British vessels navigating the Pacific Ocean and the sea above 
 mentioned", which is the Sea beyond Behring Strait — if they are forced 
 by tempest shall have the right of refuge. Kow if the Pacific Ocean 
 does not include Behring Sea, then the provision is that they shall have 
 the right of refuge down below the Aleutians, and in what I have called 
 the Frozen Ocean ; but that there is no provision for their having any 
 right of refuge in Behring Sea. 
 
 Mr. Justice Harlan. — Before you answer Lord Hannen, let me ask 
 you a question iu that connection so as not to interrupt you. I have 
 not the English translation of this Treaty here and that is the reason 
 I ask you. I notice in Article VI, there is the word "navigation". 
 Can you tell me whether, in the previous Article of this Eussian projet 
 there is any allusion (in addition to navigation) to fishing and trading? 
 
 Lord Hannen. — Yes, there is a good deal about trading. 
 
 Mr. Justice Harlan. — What I want to get at is: Do you lay any 
 stress, and how much, on the fact that whereas some previous Articles 
 refer to fishing and trading, besides navigation. Article VI that Lord 
 Hannen just read seems to refer to navigation only? 
 
188 ORAL ARGUMENT OF HON. EDWARD J. PHELPS. 
 
 Mr. Phelps.— The first Article, Sir, of this Counter draft, as yon 
 will observe (at the last line of page 68) says: — On the north-west coast 
 of America, as well as different points relative to commerce, navigation, 
 and to the fisheries of their subjects in the Pacific Ocean? 
 
 Sir Charles Eussell. — Commerce, navigation, and fisheries. 
 
 Mr. Phelps. — That is the preamble to the counter draft which gives 
 character to these various provisions. Perhaps the same occurs in other 
 Articles; but it is to be observed in respect of Article VI, as I was 
 about to say, that if the previous article — 
 
 Sir Charles Eussell. — Article III refers to it. 
 
 Mr. Phelps. — I was about to observe that in my apprehension, with 
 much respect. Article VI is conclusive in this draft to show that the 
 language in Article V was not understood as embracing Behring Sea, 
 because if it was. Article VI becomes superfluous. 
 
 Sir Charles Eussell. — l>ro. 
 
 The President. — Article VI applies to the Straits' merely and to 
 the sea beyond the straits — to the Northern Sea — to the Arctic Ocean. 
 
 Mr. PHJiLPS. — There was no dispute between these parties as to the 
 right to navigate the Frozen Ocean or the Arctic Sea ; and Behring Sea 
 of course comx^rehended the right to go out of Behring Straits. Now 
 if under the provisions of Article V the right was confirmed to go 
 through that sea and through Behring straits, what do you want with 
 Article VI in which it is said that the right of navigation shall extend 
 through the Straits. 
 
 The President. — That is why England objected to this Article — she 
 did not want to take that as a boon. 
 
 Mr. Phelps. — Exactly; but we are now upon the construction of the 
 meaning of the Article if you had accepted Article VI as an addition 
 which the language of Article V requires. 
 
 The President. — Well, it might be said, Mr. Phelps, fairly, that 
 "the Pacific Ocean", in Article V, means anything else but the Straits 
 and the Northern Sea. 
 
 Mr. P HELPS. — Of course it does not mean the Northern Sea — but 
 that had never been in question at all. 
 
 The President. — If "the Pacific Ocean" means all the sea south- 
 wards of the Straits and all the Northern Sea, the words "Pacific 
 Ocean " in Article V may be construed virtually, in such a way as to 
 mean the sea soulh of the Straits. 
 
 Mr. Phelps. — Yes. 
 
 The President. — The Straits come in Article VI. It is all the sea 
 that is not provided for in Article VI. In Article VI it provides merely 
 for the Frozen Ocean; consequently Article V provides for all the 
 remainder — Behring Sea, and the Pacific Ocean 
 
 Mr. Phelps. — It is impossible. Either the language of Article V 
 does include Behring Sea, or it does not. 
 
 Sir Charles Eussell. — It does. 
 
 The President. — That is what it seems to do. 
 
 Mr. Phelps. — If it does, you do not need Article VI. 
 
 Sir Charles Eussell. — Yes. 
 
 Mr. Phelps. — Because there never was any dispute about the right 
 of navigating the Frozen Ocean. 
 
 The President. — Eussia i^retended to concede that — that is why 
 Engla.nd did not want to have it conceded as a grant but as a right. 
 That was the despatch of Mr. Canning. 
 
 Mr. Phelps. — It is a different question from the question of the con- 
 struction of the language. Lord Hannen's suggestion was that Article 
 
ORAL ARGUMENT OP HON. EDWARD J. PHELPS. 189 
 
 VI established the meaning of the language in Article V. The question 
 whether England was willing to accept that navigation as a boon from 
 anybody is another question, and stands quite by itself. 
 
 Lord Hannbn. — What I meant was, here we have almost contempo- 
 raneous documents — one leading to the Treaty; and what I was saying 
 was, it strikes me — (and I confess you have not removed the impression 
 from my mind yet) — that it can be ascertained from that, with certainty, 
 that Russia when she spoke of the Pacific Ocean intended to include 
 the Behring Sea. 
 
 Mr. Phelps. — And the concluding clause of this very Article V which 
 limits the right to the distance of two marine leagues from the posses- 
 sions of both sides, shows that the protective quality of the Ukase so 
 far as might be necessary, was not intended to be withdrawn. 
 
 Lord Hannbn. — It shrunk from 100 miles to two leagues. 
 
 Mr. Phelps. — Yes, it shrunk from 100 miles to two leagues. 
 
 Senator Morgan. — But still it did not shrink within the three mile 
 limit? 
 
 Mr. Phelps. — But still it did not shrink within the three mile limit — 
 it was two leagues. 
 
 Senator Morgan. — Kow, Mr. Phelps, if you will allow me to sug- 
 gest this far — I do not wish to disturb the line of your argument. 
 
 Mr. Phelps. — It does not in the least interrupt me, Sir. 
 
 Senator Morgan. — The proposition of Great Britain, as I under- 
 stand it, was to concede to Eussia the right to prohibit all ships within 
 two leagues of the coast — that was a moditication of the 100 mile limit. 
 The 100 mile limit, and the proposition of Great Britain were both for 
 the same purpose — for the protection of the industry, their commerce, 
 and fur-seal hunting within Behring Sea as I understand it. Now the 
 100 mile limit was adopted by Russia in the Ukase of 1831 in conse- 
 quence of facts set forth in the British Case. What are they? At page 
 22 of the British Case, they say : 
 
 Bancroft sums up the situation about 1791 and 1792 in the following words : 
 
 Affairs were assumiug a serious aspect. Not only were the Shelikof men excluded 
 from the greater part of the inlet [Cook Inlet], but they were opposed in their 
 advance round Prince William Sound, which was also claimed by the Lebedef fac- 
 tion, though the Oiekhof and other Companies were hunting there. . . 
 
 Thus the history of Cook Inlet during the last decade of the eighteenth century ia 
 replete with romantic incidents — midnight raids, ambuscades, and open warfare — 
 resembling the doings of mediseval raubritters, rather than the exploits of peaceable 
 traders. . . 
 
 Robbery and brutal outrages continued to be the order of the day, though now 
 committed chiefly for the purpose of obtaining sole control of the inlet, to the neglect 
 of legitimate pursuits. 
 
 Again, in another place, the same author writes, with regard especially to the 
 position of Baranoff, Governor of Sitka, when he took charge of the Shelikof Colony 
 of Kadiak: 
 
 Thus, on every side, rival establishments and traders were draining the country of 
 the valuable staple upon which rested the very existence of the scheme of coloniza- 
 tion. To the east and north there were Russians, but to the south-east the ships of 
 Englishmen, Americans, and Frenchmen were already traversing the tortuous chan- 
 nels of the Alexander Archipelago, reaping rich harvests of sea-otter skins, in the 
 very region where Baranoff had decided to extend Russian dominion in connection 
 with Company sway. 
 
 Then on page 29 of the same Volume it says : 
 
 In 1801, there were at least thirteen United States vessels on the north-west coast. 
 These vessels exchanged with the natives of the coast for furs, parts of their cargoes, 
 and, proceeding to China, returned to their respective countries with cargoes of 
 teas, etc. Upwards of 18,000 sea-otter skins, besides other furs, were in 1801 col- 
 lected by United States traders alone for the China market. 
 
 In 1802, the Russian E'^tablishmnnt at Sitka was destroyed, and nearly all the 
 Russians there were massacred by the natives. According to Lisiansky, the natives 
 
190 OEAL ARGUMENT OF HON. EDWARD J. PHELPS. 
 
 were assisted by three deserters from a United States vessel, the "Jenny", which 
 had called at Sitka not long hefore. Shortly afterwards, an English vessel, the 
 "Unicorn," Captain Barber, arrived at Sitka, and two other vessels, reported by 
 the Russian snrvivors as English, but one of these Bancroft believes to have been the 
 TTnited States vessel "Alert." 
 
 Hunting therefore, whieli was conducted with fire arms necessarily, 
 was somethiug that I suppose Eussia for the peace of herself and the 
 safety of the lives of her subjects desired to repress, hence their inter- 
 position of the 100 mile limit which Great Britain recognizing as being 
 too large, was willing to reduce to two marine leagues. 
 
 That is my view of the progress of the matter, and that is my view 
 of the reason why in the Treaties of 1824 and 1825 no mention was 
 made of the 100 mile limit in the general settlement of it, but it was 
 left to stand for the protection of the lives of Eussian settlers against 
 the raids of these Traders. 
 
 The President. — Do you mean to say, Mr. Senator, it meant to 
 stand along the north-west coast? All you have been reading relates 
 to the north-west coast. You do not mean to say that the 100 mile 
 limit was applicable to the north-west coast, or to the Treaty? 
 
 Senator Morgan. — Applicable to the 100 mile limit — applicable to 
 the north-west coast, — by which 1 suppose the learned president means 
 that jjortion of the Country that is occupied now chiefly by the British 
 American possessions? 
 
 Sir Charles Etjssbll. — Oh no, no. 
 
 Senator Morgan. — Whether it applies to that alone, or whether it 
 applies to that and Behring Sea, the purpose is the same. 
 
 The President. — Yes. 
 
 Senator Morgan. — That was, to keep ships — to keep these Trad- 
 ers — from going there supplying fire-arms, ammunition and whiskey to 
 the settlers whereby they would probably keep down these massacres 
 and raids. 
 
 Marquis Yenosta. — So many questions have been put to you, Mr. 
 Phelps, that I hardly like to ask you another. 
 
 Mr. Phelps. — I am most hai^py to hear them, Sir. 
 
 Marquis Yenosta. — I should like to ask you this : you have said that 
 the British Government accepted the American interpretation of the 
 treaty of 1824. 
 
 Mr. Phelps. — Yes. 
 
 Marquis Yenosta. — I remember there being some question between 
 the United States and Eussia concerning the sea of Okhote and the 
 Behring Sea many years after the treaty and after the treaty of cession, 
 namely, a question concerning the proclamation of the Eussian consul 
 in Japan and the question concerning the seizure of a vessel called the 
 "Eliza". 
 
 Mr. Phelps.— Yes — the "Loriot". 
 
 Marquis Yenosta. — Do you not think that those questions had some 
 bearing on your contention — that the inference is that there was an 
 interpretation of the American Government accepting the interpreta- 
 tion proposed by Baron de Tuyll, and binding in some way the British 
 Government? 
 
 Mr. Phelps. — I was intending to allude to the case of the "Loriot", 
 and after luncheon I shall be happy to endeavor to answer the question 
 of the Marquis. 
 
 Marquis Yenosta. — If you please. 
 
 The President. — Then if you please, Mr. Phelps, you will be good 
 enough to answer the question after luncheon. 
 
 [The Tribunal here adjourned for a short time.] 
 
OKAL ARGUMENT OP HON. EDWARD J. PHELPS. 191 
 
 Mr. Phelps. — In reply to the question put by the Marquis Venosta 
 before the adjournment, I read from the United States Counter Case, 
 page 22 and following. It will be remembered that the Treaty of 1824, 
 that we have been discussing, conferred upon the subjects of both 
 Governments mutual rights for 10 years of trading with the settlements 
 of the other. After that 10 years limitation expired, that is after 1834, 
 the United States Government made an effort with Eussia to get an 
 extension of it, and that effort failed; and very soon after the expira- 
 tion of the time, this American ship, the "Loriot", was arrested by the 
 Russian Government, and I will ask Mr. Foster to be good enough to 
 point out on the map where it was taken. 
 
 General Foster [Pointing it out]. — It was about 64° 55'. 
 
 Mr. Phelps. — It was on Eussian territory, and it was seized by the 
 Eussian Government; the United States protested and asked for com- 
 pensation; and Mr. Dallas claimed, in the correspondence which is 
 referred to on a subsequent page of the Counter Case, that the right 
 to do what the vessel engaged in was a general right, and did not 
 depend upon the consent of Eussia. In other words, Mr. Dallas's claim 
 was substantially that the United States had the same rights there 
 without the concession of the Treaty of 1824 that it had with them. It 
 is not surprising that that claim of the United States failed entirely. 
 It was rejected by the Eussian Government, which, in the correspond- 
 ence that ensued, pointed out what the objection was ; and it was aban- 
 doned and dropped by the United States. No compensation was made 
 for the vessel. The vessel was not given up. The right of the United 
 States to go there and trade was not conceded, and an extension of the 
 terms of the Treaty of 1824 was not made. Why? The nations were, 
 as they always have been, perfectly friendly, and the same reasons 
 existed for extending the treaty provisions 10 years longer that could 
 have existed for making them in the first place. The reason was the 
 mischief to the industries of Russia, which, as they claimed, inevitably 
 followed the exercise of it. So they not only refused to extend them, 
 but they seized and confiscated the vessel. It would not be useful for 
 me to take up the time to read it, but a review of the correspondence 
 (because it exactly expresses the views on one side and the other) will 
 be found at pages 180 to 184 of the Counter Case of the United States, 
 a summary, not the whole of it, and extracts from the correspondence. 
 
 Marquis Venosta. — I asked you for an elucidation of the question 
 concerning not the "Loriot" case but the "Eliza" case. You will find 
 that at pages 20, 21 and 22 of the Appendix to the British Case, vol- 
 ume 2. 
 
 Mr. Phelps. — Yes; I did not quite understand your question. Sir. 
 I thought it was restricted to the "Loriot" case. 
 
 The case of the "Eliza" was a vessel that was seized by the Eus- 
 sian Government in 1887; and it was seized for the breach of an order 
 or regulation which took effect at the beginning of 1882. I will read 
 from Mr. Lothrop's letter to Mr. Bayard, the Secretary of State. Mr. 
 Lothrop was our Minister. 
 
 The Russian Government claims that she was seized and condemned under the 
 provisions of an Order, or Regulation, which took effect at the beginning of 1882, 
 and which absolutely prohibited every kind of trading, hunting and fishing on the 
 Russian Pacilic coast without a special licence from the Governor-General. 
 
 It is not claimed that the "Eliza" was engaged in seal iishing. 
 
 Marquis Venosta. — It is on that word that I asked for some expla- 
 nation; because General Vl an galy wrote to the United States Minister, 
 that the ship was confiscated not on the ground of seal-fishing in ihe 
 
192 ORAL ARGUMENT OP HON. EDWARD J. PHELPS. 
 
 open sea, but on tlie ground of a violation of a territorial regulation in 
 territorial waters. 
 
 Mr. Phelps. — I perceive, Sir; I see the point, and I will read a little 
 further to see wliat tlie facts were, and then I will consider that. 
 
 But that she was found actually engaged in trading with the natives with the con- 
 traband articles of arms and strong liquors. 
 
 She was condemned by a Commission sitting on the Imperial corvette "Ras- 
 boi'nik", composed of the ofiScers thereof. In this respect the case is precisely like 
 that of the " Henrietta", mentioned on my last preceding despatch No. 95, and of 
 this date. 
 
 It will be noticed that Mr. Spooner, the owner of the "Eliza", in his statement of 
 his claim, declares that the "Eliza" was "on a trading voyage, engaged in barter- 
 ing with the natives, and catching walrus, and as such did not come under the 
 Notice of the Russian Governmiint, which was directed against the capture of seals 
 on Copper, Robbins, and Behring Islands. 
 
 It will be seen that Mr. Spooner either refers to an Order of the Russian Govern- 
 ment different from the one mentioned by the Imperial Foreign Office, or he under- 
 stood the latter in a very different sense. 
 
 Sir Charles Eussbll. — Will you kindly read the next sentence of 
 that letter which begins " I may add", and so on, 
 Mr. Phelps. — Yes; but I have read it before: 
 
 I may add that the Russian Code of Prize Law of 1869, Article 21, and now in 
 force, limits the jurisdictional waters of Russia to 3 miles from the shore. 
 
 And the next letter following, enclosed by Mr. Lothrop in that letter 
 is one from the Government of Eussia, — General Vlangaly to Mr. 
 Lothrop, and he says, reading from the second paragraph of the letter: 
 
 This information is in substance to the effect that the "Eliza" was confiscated 
 not for the fact of seal-hunting, but by virtue of an Administrative Regulation pro- 
 hibiting, from the beginning of the year 1882, every kind of commercial act, of 
 hunting, and of fishing on our coasts of the Pacific, without a special authorization 
 from the Governor-General, and carrying with it, against those disregarding it, the 
 penalty of the seizure of the ship as well as of the cargo. 
 
 The order referred to is the one issued by the Eussian Consul at 
 Yokohama, and is to be found on page 17 of the same book : 
 
 At the request of the local authorities of Behring and other islands, the under- 
 signed hereby notifies that the Russian Imperial Government publishes, for general 
 knowledge the following. 
 
 (1) Without a special permit or license from the Governor-General of Ea8.tern 
 Siberia, foreign vessels are not allowed to carry on trading, hunting, fishing, etc., 
 on the Russian coast or islands in the Okhotsk and Behring Sea, or on the north- 
 eastern coast of Asia, or within their sea-boundary line. 
 
 (2) For such permits or licenses, foreign vessels should apply to Vladivostok, 
 exclusively. 
 
 (3) In the port of Petropaulovsk, through being the only port of entry in Kam- 
 schatka, such permits or licenses shall not be issued. 
 
 (4) No permits or licen.ses whatever shall be issued for hunting, fishing, or 
 trading at or on the Commodore and Robben Islands. 
 
 (5) Foreign vessels found trading, fishing, hunting, etc., in Russian waters, with- 
 out -Bj license or permit from the Governor-General, and also those possessing a 
 license or permit who may infringe the existing bye-laws on hunting, shall be con- 
 fiscated, both vessels and cargoes, for the benefit of the Government. This enact- 
 ment slmll be enforced henceforth, commencing with A. D, 1882. 
 
 (6) The enforcement of the above will be Intrusted to Russian men-of-war, and 
 also to Russian merchant-vessels, which, for that purpose, will carry military 
 detachments and be provided with proper instructions. 
 
 liTow, under the force of that Eegulation, three American vessels 
 were successively seized and confiscated, and that confiscation was 
 adopted by the Eussian Government, and no satisfaction ever was made 
 for it. For the first two, a letter of enquiry was addressed by the 
 United States' Government, and on the facts being stated as given in 
 Mr. Lothrop's letter, just now read, that claim of the United States was 
 dropped or abandoned. 
 
ORAL ARGUMENT OP HON. EDWARD J. PHELPS. 193 
 
 It does appear, however, that Mr. Dallas, as I have Said before, 
 made a claim in respect of the "Loriot", and that claim, though made 
 the subject of correspondence, was subsequently abandoned. 
 
 Marquis Venosta. — The case of the "Loriot" has not very much to 
 do with this. 
 
 Mr. Phelps. — No, it has not. It is only in the same line. 
 
 Kow what does all this prove. It proves what is the last thing I 
 desire to say about this much vexed subject, and what is the only 
 important thing, in my judgment, to the present enquiry, that the 
 - practical construction placed upon the Treaties of 1824 and 1825 by the 
 parties to them, from the day of their date down to the time of the 
 cession, and down to the present time, is exactly in accordance with 
 what we say the true reading of the Treaty is, and the true understand- 
 ing of the parties was. How can it be that if the Treaty of 1824 was 
 understood as conveying to the United States these rights of trading, 
 and of fishing, that in 1882 Eussia should put forth such an order as I 
 have just read, and how can it be that the United States would submit 
 to it and permit their vessels to be captured; because if the Treaty of 
 1824 gives the rights which are claimed to the United States, then the 
 issue of the order of 1882 was a gross infringement of the Treaty, and 
 of the rights of the United States under the Treaty. It is not to be 
 presumed that Eussia would have attempted it, and still less is it to be 
 presumed that the United States would have submitted to it; and that 
 bears upon this great leading fact that from the time of the discovery 
 of these islands down to 1867, when they were ceded to the United 
 States, the possession and occupation by Eussia of the seal and fur 
 industry business was not only asserted, but was actually maintained; 
 and not a seal, as far as we learn in the exhaustive examination of this 
 case, was ever killed in those waters except by the permission and under 
 the regulations of the Eussian Government. So that the question 
 which Mr. Blaine puts in this correspondence, In letters that have been 
 read, is one that has not received an answer from my learned friends, 
 and, I respectfully insist, cannot be answered. How comes it to pass 
 that the Canadian vessels at this late period have acquired a right as 
 against the interest of the United States, in that seal herd, which never 
 was asserted or claimed by anybody so long as the Eussian Government 
 remained, ^ou will remember. Sir, without wearying you with more 
 reading on this tiresome branch of the case, that about 1840 a question 
 arose. The Eussian American Company addressed its Government on 
 the subject of whaling vessels that came in there, and asked the Gov- 
 ernment to interfere; and something is cited from Bancroft, by the 
 other side, to the effect that the spirit of the Treaty of 1825, between 
 Great Britain and America, might be against it. It does not touch the 
 far animals, but when you pursue the author they cite, Bancroft, you 
 will find this: 
 
 The Government at length referred the matter to a committee composed of offi- 
 cials of the navy department, ■vrho reported that the cost of fitting out a cruiser 
 for the protection of Behring Sea against foreign whalers would he 200,000 roubles 
 in silver and the cost of maintaining such a craft 85,000 roubles a year. To this a 
 recommendation was added that, if the company were willing to assume the expendi- 
 ture, a cruiser should at once be placed at their disposal. 
 
 So that the failure, according to Bancroft, to protect Behring Sea, 
 even against whalers, which is totally different from the question we 
 are upon, was put upon the ground that the interest of the Company 
 in it did not justify the expense that would be put upon them of fitting 
 out the cruiser for the purpose. 
 -13 
 
194 ORAL ARGUMENT OF HON. EDWARD J. PHELPS. 
 
 Sir Charles Eussell. — In view of that statement Sir, I must ask 
 leave to intervene. 
 
 Mr. Phelps. — Certainly. 
 
 Sir Charles Eussell. — There is a distinct statement by theEus- 
 sian Foreign Office that they have no right to exclude foreign ships 
 from that part of the great ocean which separates the eastern shore and 
 Siberia from the western shore of America, or to make the payment of 
 a sum of money a condition of allowing them to take whales. 
 
 Mr. Phelps. — That is cited from Bancroft, I presume. 
 
 Sir Charles Eussell. — No, from the official papers. 
 
 Mr. Phelps. — I understand that Bancroft the historian gives the 
 additional facts as you will find in the Counter Case, page 25. It is 
 part of the same declaration as that which my learned friend has 
 alluded to. I should think myself that it was a very grave question, 
 at least, whether the right of the whaler in navigating Behring Sea 
 might not have been within what was conceded. I do not care to dis- 
 cuss that, because we have nothing to do with it. It may be so, or 
 may not be so; I only meant by this allusion to show that on that 
 extreme point — and it certainly would be extreme — theEussian G-ov- 
 ernment had communications with the Eussian American Company to 
 which I have alluded. 
 
 Marquis Venosta. — Do you consider the book Teckmanieff a relia- 
 ble document ? 
 
 . Mr. Phelps. — That is a question that I am not able to answer. 
 From the use that is made of it, I should think not, and from its 
 exceeding facility for mistranslation, I should think not; but I really 
 am not qualified and not sufficiently acquainted with the author or 
 any other Eussian literature to express an opinion on the subject. I 
 notice that Professor Elliott refers frequently to him, and that the pas- 
 sages on which he depends generally turn out to have been mistrans- 
 lated, and those are usually the circumstances under which the author 
 makes his appearance in this case. 
 
 Marquis Venosta. — The book of Teckmanieff is an historical book, 
 a printed book, but is not an official document and for that reason I 
 have asked your opinion. 
 
 Mr. Phelps. — That is an opinion I am not competent to express. 
 The particular historian I was last alluding to is one cited on the other 
 side — Bancroft, an American writer. There are two of those Eussian 
 writers — Teckmanieff, and Veniaminoff, and possibly I have con- 
 founded them in the observations I have made. If so, it arises from 
 my own ignorance on that subject. 
 
 Mr. Justice HARLAN. — Teckmanieff is the man who wrote about the 
 Eussian American Company. 
 
 Mr. Phelps. — Then this is what we claim and all we claim, and I 
 have been drawn into saying more than I should have said on this sub- 
 ject in view of its relative importance to this case. We have attempted 
 to establish — whether successfully or not — that the property interest 
 which the United States Government has in this herd, which entitles 
 it to protect it, derives a confirmation or a corroboration and a strength 
 from a possession and an assertion on the part of Eussia that was abso- 
 lutely unbroken, so far as this seal industry was concerned, from the 
 earliest discovery down to the present time. 
 
 Therefore, if you will permit me to read again what we have 
 expressed in the United States Argument, at page 40, as the answers 
 which we should respectfully submit should be made to the questions 
 in the Treaty on this subject, I shall trouble you no further in respect 
 
ORAL ARGUMENT OP HON. EDWARD J. PHELPS. 195 
 
 to it, except merely to commend to your recollection wliat is said on 
 this subject of possession in the United States Counter Case, from 
 page 24 where I was reading, and for several pages further : 
 
 The first four questions submitted to the Tribunal by the Treaty should, in the 
 opinion of the undersigned, be answered as follows. 
 
 First. Russia neTer at any time prior to the cession of Alaska to the United 
 States claimed any exclusive jurisdiction in the sea now known as Behring Sea, 
 beyond what are commonly termed territorial waters. She did, at all times since 
 the year 1821, 
 
 (and it might have been said a period earlier than that), 
 
 Assert and enforce an exclusive right in the " seal fisheries" in said sea, and also 
 asserted and enforced the right to protect her industries in said "fisheries" and her 
 exclusive interests in other industries established and maintained by her upon the 
 islands and shores of said sea, as well as her exclusive enjoyment of her trade with 
 her colonial establishments upon said islands and shores, by establishing prohil)itive 
 regulations interdicting all foreign vessels, except in certain specified instances, 
 from approaching said islands and shores nearer than 100 miles. 
 
 Second. The claims of Russia above mentioned as to the "seal fisheries" in Beh- 
 ring Sea were at all times, from the first assertion thereof by Russia down to the 
 time of the cession to the United States, recognized and acquiesced in by Great 
 Britain. 
 
 Third. "The body of water now known as Behring Sea was not included in the 
 phrase 'Pacific Ocean', as used in the treaty of 1825, between Great Britafn and 
 Russia" ; and after that treaty Russia continued to hold and to exercise exclusively 
 a property right in the fur-seals resorting to the Pribilof Islands, and to the fur- 
 sealing and other industries established by her on the shores and islands above 
 mentioned, and to all trade with her colonial establishments on said shores and 
 islands, with the further right of protecting, by the exercise of necessary and 
 reasonable force over Behring Sea, the said seals, industries, and colonial trade 
 from any invasion by citizens of other nations tending to the destruction or injury 
 thereof. 
 
 That is what we claim as the fair result of the whole evidence in this 
 case in respect to the only part of the old historic claim of Eussia that 
 has anything whatever to do with this conference. And unless you. 
 Sir, or some member of the Tribunal have any further suggestion to 
 make about the topics I have discussed to-day, I shall leave that sub- 
 ject here and finally. I shall be most happy, I need not say, to attempt 
 to reply to any suggestions that may be made. 
 
 The President. — I think we shall be pleased if you will go on. 
 
 Mr. Phelps. — ISTow, Sir, having considered the title, and the con- 
 firmation of the title, so far as it is to be derived from previous occa- 
 pation, I come to the second principal proposition that is set forth on 
 the part of Great Britain. The first that I have tried to discuss was 
 that these animals are ferm natures, the second being, that the killing 
 of the seals is an incident of the freedom of the sea. It has, as I have 
 had occasion to observe, been very emphatically put forth by all my 
 learned friends, and repeatedly, that this subject involved a question 
 of the freedom of the sea, and that in conceding any right of property, 
 or any right of protection against this destruction you are in danger 
 of invading the freedom of the sea. My learned friends have been 
 good enough to caution members of the Tribunal. against taking any 
 step that could possibly be regarded as having an effect upon a right 
 which they seem to regard as better than other rights, and that is the 
 freedom of the sea. 
 
 Now nobody at this day contests that general proposition, least of 
 all a maritime nation of the interests and extent of the United States 
 Government; but the question is, what is the freedom of the sea? 
 Does the conduct that we seek to protect ourselves against come 
 within it, or is it excluded from it? Of course it must be said as must 
 
196 ORAL ARGUMENT OP HON. EDWAED J. PHELPS. 
 
 be said of all freedom and of all liberty, it has limits. As Mr. Blaine 
 has said, freedom of the seals not lawlessness; it is not everything 
 that can be done there : it stops somewhere, as all freedom stops. The 
 liberty that is under the law is all the liberty that has ever proved 
 beneficial to the human race, — whether all the liberty that is under the 
 law has proved a blessing or not may be another question. What then 
 is its history? Whence comes this idea of the freedom of the sea? 
 When and where did it begin, how far did it ever extend, and where 
 does it stop ? Those are the questions that are involved in this discus- 
 sion, very directly and immediately. I need not remind any person 
 conversant with the history of maritime law, that the time is not very 
 distant, historically speaking, when the idea of the freedom of the sea, 
 first promulgated by Grotius, found its way into the law of the world. 
 Before that, the doctrine was that of mare clausum, that is to say, just 
 as far as the interests of any maritime nation appeared to require 
 that it should assume dominion and sovereignty over the sea, it did 
 assume it and all the world acquiesced. 
 
 If it were 100 years back, the claim of Bussia that was so modestly 
 suggested by M. de Poletica in 1822, that all the conditions that attend 
 a closed sea existed on the part of Behring Sea, so that Eussia might, 
 as he said, have advanced that claim, although she did not intend to 
 do it — if we had been 100 years further back it would not have been too 
 late, as international law then stood, for Eussia to have asserted that 
 claim. In 1824, a distinguished author, Mr. Ghitty, published a book 
 on that subject in which he maintained the doctrine of mare clausum. 
 
 Senator Morgan. — That is the doctrine now as to the Dardanelles 
 and the Bosphorus. 
 
 Mr. Phelps. — Yes ; it may have its exceptions. 
 
 Sir Charles Eussell. — What book of Mr. Chitty's is that? 
 
 Mr. Phelps. — I will give you the reference. It is Chitty's Commer- 
 cial Law, and it was published in 1824. 
 
 Sir Charles Eussell. It was the Quatuor Maria, I think. 
 
 Mr. Phelps. I do not refer to it, because I do not propose to main- 
 tain that in 1824 this was the settled law of the world at all. Grotius 
 was earlier than that, and the doctrine mare liberum had made consid- 
 erable advances; but it was not too late in 1824 for a very respectable 
 writer to put forth his book in which he maintained the doctrine of 
 mare clausum, that wherever the interests of the nation, and, as he 
 argued, the interests of the world required, sovereignty should be 
 extended over it. I refer to that as an illustration. 
 
 Lord Hannen. — Can you give the page of Chitty? 
 
 Mr. Phelps. — No, I cannot here, because the whole book is devoted, 
 or at least a large share of the book, to the maintenance of that doctrine 
 in contradistinction to the views put forth by Grotius. I refer to it only 
 as an illustration, not with the view of taking up the contention of 
 Mr. Chitty one way or the other. 
 
 Senator Morgan. — Is not that the doctrine to-day, as announced 
 here with reference to the Fjords of Norway, and the Chesapeake Bay, 
 and the mouth of the Delaw^are. 
 
 Mr. Phelps. — I am coming to those illustrations when I consider 
 what are the remnants left in the world. That is one of them. I want 
 to see how far that old doctrine of mare clausum prevailed without dis- 
 pute in the world till Grotius attacked it. 
 
 The President. — I think the word "dispute" is going rather far. 
 
 Mr. Phelps.— Well, perhaps, the word "dispute" is a little too 
 strong. It might have been questioned, but I think till Grotius' 
 
ORAL ARGUMENT OF HON. EDWARD J. PHELPS. 197 
 
 Treatise was put forward it certainly could not have been said to have 
 been overthrown. ' Sir Henry Maine in his lecture on International 
 Law at pages 75 and 77, cited in the United States Argument, page 
 141, considers this subject historically, and perhaps I may be excused 
 for reading a very few words. 
 
 The first branch of our enquiry brings us to what, at the birth of international 
 law, was one of the most bitterly disputed of all qnestioos, the question of mare 
 clauaum and mare liberum — sea under the dominion of a particular power, or sea open 
 to all — names identified with the great reputations pf Grotius and Selden. In all 
 probability the question would not have arisen but for the dictum of the institutional 
 Roman writers that the sea was by nature common property. And the moot point 
 was whether there was anything in nature, whatever that word might have meant, 
 which either pointed to the community of sea or of rivers : and also what did history 
 show to have been the actual practice of mankind, and whether it pointed in any 
 definite way to a general sense of mankind on the subject. We do not know exactly 
 what was in the mind of a Roman lawyer when he spoke of nature. Nor is it easy for 
 us to form even a speculative opinion as to what can have been the actual condition 
 of the sea in those primitive ages, somehow associated with the conception of nature. 
 The slender evidence before us seems to suggest that the sea at first was common 
 only in the sense of being universally open to depredation. 
 
 Whatever jurisdiction may have been asserted, probably did not spring from any- 
 thing which may be called nature, but was perhaps a security against piracy. At 
 all events, this is certain, that the earliest development of maritime law seems to 
 have consisted in a movement from mare liberum, whatever that may have meant, 
 to mare olausum — from navigation in waters over whioli nobody claimed authority, 
 to waters under the control of a separate sovereign. The closing of seas meant 
 delivery from violent depredation at the cost or by the exertion of some power or 
 powers stronger than the rest. No doubt sovereignty over water began as a benefit 
 to all navigators, and it ended in taking the form of protection. 
 
 And he cites, as you will find in a note on the same page, from Mr. 
 Hall in his Treatise on International Law, which was an English trea- 
 tise to a similar effect. 
 
 Sir Henry points out there that mare clausum was not the beginning 
 of what may be called the law of the sea, if you dignify it with that 
 name. It was preceded by mare liberum; it was preceded, before inter- 
 national law could be said to have had its birth, by a freedom of the sea, 
 which is just what is contended for in this case, — a freedom for univer- 
 sal depredation; a freedom that had no limit; a freedom from which 
 property was not safe and life was not safe. That was the early idea 
 of the freedom of the sea; the doctrine of mare clausum, as these 
 authors point out, very clearly came frorrl the necessity of protection; 
 and the world acquiesced in the adjacent maritime nation stretching 
 its hand out over the waters of the sea and assuming a sovereignty 
 over the sea as it did over the shore, because it was necessary to human 
 protection. That is where the original doctrine of mare clausum comes 
 from. It comes from necessity of protection agatust a form of freedom 
 of the sea which was lawlessness. 
 
 When civilisation and commerce and the rudiments of international 
 law had so far advanced that the assumption of such a sovereignty by a 
 maritimenation wasno longer necessary, and, could nolonger be justified; 
 when it was no longer necessary for G-reat Britain to assert a sover- 
 eignty over the Channel for the protection either of itself or of the 
 world; or for Italy to extend a sovereignty over the Adriatic, or Den- 
 mark over the Baltic, then the new theory comes in; that is, the doc- 
 trine set forth by Grotius of a free sea, and that gradually came to be 
 accomplished; and what is material, as I have said, is to find how far 
 the nations then surrendered their sovereignty over the sea. They did 
 surrender it to a large extent, unquestionably; they did give way to 
 the advancing idea of the freedom of the sea. How far did they go? 
 
198 ORAL ARGUMENT OF HON. EDWARD J. PHELPS. 
 
 Did they throw the sea open to consequences that were detrimental to 
 themselves; or did they retain, have they always retained, and is the 
 whole law of the sea based upon the principle of retaining in the mari- 
 time nation, all that is necessary to the protection of its rights'? 
 
 Senator Morgan. — ISTow, Mr. Phelps, if you will allow me, I wish to 
 ask your opinion about this; whether, in throwing open a sea (as you 
 have just described), it was thrown open to individuals operating upon 
 their private account and without the authority of the flag, or the 
 license of any nation; or "was it thrown open to the sovereign nations 
 of the world? 
 
 Mr. Phelps. — That is a point I shall try to address myself to, Sir. 
 
 Now, let me state the proposition that I venture respectfully to assert 
 with some confidence, as being the result of the whole law of the sea as 
 it exists to day, and of all the application to human affairs it ever has 
 had: — That the nations that formerly controlled the sea never surren- 
 dered the right of self-protection which extended to all their interests 
 that were valuable enough to be protected, whether in peace or in war, 
 whether industry, or commerce, or trade, and that the time never has 
 been when an individual (which may perhaps meet the point of your 
 question which you have just put) — the time has never been and the 
 illustration is not to be found in any rule of law, when an individual 
 could engage in any pursuit, for the purpose of gain on the high seas, 
 that worked a serious injury to the interests of a maritime nation, even 
 though the pursuit in itself and of itself, if it had not had such conse- 
 quences, might have been unobjectionable; even if it is the pursuit of 
 something on the sea from which a gain is to be realised, and which in and 
 of itself does no harm. If the consequence of that is the serious injury 
 or affection of a national interest, that nation never has surrendered 
 the right to protect itself against that consequence, and for that busi- 
 ness the sea is not free. 
 
 Then I go further ; I have spoken of innocent occupation. If the 
 thing that is sought to be done upon the sea is in itself wrong; inhu- 
 man, barbarous, imn:oral; if it violates those general principles of law 
 that are enforced in all civilization; if its tendency is not merely to 
 injure the interests of the nation, but to injure the interests of mankind, 
 as in this case, by the extermination from the earth of a valuable 
 animal; then that of itself renders such conduct unjustifiable, and any 
 nation who is affected by it may resist it. No nation can constitute 
 itself the censor of the morals of the world. No nation can go out 
 upon the high seas upon the errand of enforcing the general laws of 
 humanity, because it is not invested with that paramount authority 
 over other nations ; but the moment that conduct touches the interest 
 of the nation — the moment it becomes, so to speak, the business of that 
 nation to resist it; at such moment it can resist it. I shall try to make 
 myself clear on this initial point, and I shall not have to refer to it_ 
 again, that the proposition I venture to suggest in respect to the limit 
 of the freedom of the sea rests upon two branches, each of which, 
 standing alone would be sufficient, and both of which in this case 
 concur. I say in the first place that a pursuit that is innocent of 
 itself, but does have destructive or gravely injurious effects upon the 
 interests of a maritime nation, may be prevented. I say, in the next 
 place that instead of being innocent and unobjectionable, and some- 
 thing that nobody but the nation affected could object to — if it goes 
 beyond that, and is indefensible in its moral character, in its humanity, 
 and is destructive of the interests of the world, as well as of the interests 
 of the nation, and violates those principles which all nations, as far as 
 
ORAI, ARGUMENT OF HON. EDWARD J. PHELPS. 199 
 
 their municipal jnrisduction extends, have adopted, it may be protested 
 against and be defended. 
 
 Now, having given some reflection to this subject, and having tried 
 to instruct myself by a reference to everything I could find of an author- 
 itative character on the subject of international law, I venture to say 
 that there is not a maritime right, there is not a single feature in what 
 we may call the law of the sea, that does not come back and refer itself, 
 and be seen to be founded upon this proposition. And that this loose 
 talk that has prevailed — and, of course, 1 am not alluding to my learned 
 friends in this observation — the loose talk that you find pervading the 
 deliverances of a very different and much less instructed class of men, 
 who begin to enlighten the world before they have found out the 
 necessity of enlightening themselves, — this loose talk about the freedom 
 of the sea that has been generated in newspapers, and in such sources of 
 knowledge, the idea that the moment you get upon the sea you are 
 exemj)t from all human law, except in some few special particulars that 
 have become the subjects of special adjustment, and that uuless you 
 run against some snch arbitrary rule which may have good grounds to 
 stand on, or may not, but has become established, the freedom of the 
 sea is a universal and unlimited thing, is utterly mistaken and destitute 
 of foundation. 
 
 I say, on the other hand, the freedom of the sea — to state the con- 
 verse of my proposition is to say the same thing over again in different 
 words — is the right to do upon it every thing that is inoffensive and 
 right in itself, and which works no injury to any maritime nation; no 
 injury to anybody else; that it stops there, and that all these cases 
 which my learned friends were struggling with, all the supposed cases 
 to which we invited their consideration, of whether this may be done, 
 or whether that may be done, or whether the other may be done, and 
 in which they were struggling to find some particular answer to each 
 case, or to find some escape from the necessity of answering the ques- 
 tion by saying, "that question is not likely to arise", or "that might be 
 settled by agreement ", all of them are immediately answered when you 
 bring them to that plain test : Is the conduct inoffensive, or is it injuri- 
 ous? May I be pardoned for alluding quite briefly, I hope, because I 
 shall only read enough to state the point, to the judgment of judges, and 
 writings of men whose authority is not questioned. Mr. Justice Story 
 says in the case of the Marianna Flora, in the 11th Wheaton, Supreme 
 Court Eeports : 
 
 Every ship sails there 
 
 that is, in the open sea : the context shows what he meant 
 
 with the unquestionable right of pursuing her own lawful business without inter- 
 ruption, but whatever may be that business, she is bound to pursue it in snch a 
 manner as not to violate the rights of others. The general maxim in such cases is 
 8ic utere tuo ut alienum non Icedas. 
 
 Then Chancellor Kent says on page 27 of the 1st. Volume of his 
 Commentaries. 
 
 Every vessel in time of peace has a right to consult its own safety and conven- 
 ience, and to pursue its own course and business without being disturbed, ivhen it 
 does not violate the rights of others. 
 
 Mr. Justice Amphlett says in the case of the Queeii v. Keyn in the 
 2nd Exchequer which has been so often referred to in the course of this 
 discussion : 
 
 The freedom of the high seas for the inoffensive navigation of all nations is flrmly 
 ^Btablished. 
 
200 ORAL ARGUMENT OP HON. EDWARD J. PHELPS. 
 
 Beading from the note on page 142 there is a passage cited from 
 Grotius, the great authority on the freedom of the sea. 
 
 It is certain that he who would take possession of the sea hy occupation could not 
 prevent a peaceful mid innocent navigation, since such a transit cannot be interdicted 
 even on land, though ordinarily it would be less necessary and more dangerous. 
 
 Then the note at the bottom of page 142 ; Mr. Twiss in section 172 
 and 185 of his International Law says : 
 
 But this is not the case with the open sea upon which all persons may navigate 
 without the least prejudice to any nation whatever, and without exposing any nation 
 thereby to danger. It would thus seem that there is no natural warrant for any 
 nation to seek to take possession of the open sea, or even to restrict the innocent 
 use of it by other nations. * » * xhe right of fishing in the open sea or main 
 ocean is common to all nations on the same principle which sanctions a common 
 right of navigation, viz, that he who fishes in the open sea does no injury to any one, and 
 the p7-oduct8 of the sea are, in this respect, inexhaustible and sufficient for all. 
 
 The right of self defence and the right of jurisdiction have been 
 referred to — they have no connection with each other — almost no rela- 
 tion with each other. Jurisdiction is sovereignty and is confined to 
 territory — Self defence is not confined except by the necessity and 
 propriety of the case, and has nothing at all to do with jurisdiction. 
 
 Then to meet the exact point that Senator Morgan has just suggested. 
 Besides the three-mile limit there is another extent of jurisdiction such 
 as he referred to in the Fjords of Norway, the large bays where the 
 headlands were more than 10 miles apart and embrace more water than 
 the three mile limit or cannon-shot limit from the shore would cover, 
 there the same principle has extended further and Chancellor Kent 
 expresses it so well that I will read a few words from page 147 of the 
 Argument which are quoted from pages 30 and 31 of his first Commen- 
 taries. 
 
 Considering, he says, the great extent of the line of the American Coasts we 
 have a right to claim for fiscal and defensive regulations a liberal extension of 
 maritime jurisdiction ; and it would not be unreasonable, as I apprehend, to assume, 
 for domestic purposes connected with our safety and welfare, the control of the 
 waters on our coasts though included within lines stretching from quite distant 
 headlands as for instance from Cape Ann to Cape Cod, and from Nantucket to Mon- 
 tauk Point and from that point to the capes of the Delaware and from the south 
 cape of Florida to the Mississippi. 
 
 That is the point. That is an extent of jurisdiction beyond the can- 
 non-shot line, beyond the three-mile line, and it results from exactly 
 the same necessity. Chancellor Kent says that the necessity of exer- 
 cising a control over waters to that extent is a general necessity; so 
 that, instead of going out when the occasion requires to do the thing 
 that the occasion requires, you extend the general jurisdiction. 
 
 The President. — Does the Government of the United States claim 
 to extend the jurisdiction as propounded by Chancellor Kent? 
 
 Mr. Phelps.— Yes. 
 
 Lord Hannen. — In what way has it been claimed except otherwise 
 than on the very high authority of Chancellor Kent? 
 
 Mr. Phelps. — Practically. 
 
 Senator Morgan. — It has never been disputed by any nation that 
 I know of. 
 
 Mr. Phelps. — I do not know of any question having arisen. The 
 Bay of Fuudy, I think, stands on the same ground. [ 
 
 Lord Hannen. — But there it was not allowed. That questibn came 
 before a tribunal before which I acted as advocate as you are doing 
 now, and there it was decided against us by the umpire. 
 
 Mr. Phelps. — I quite defer to your Lordship's better information, 
 but I had the impression arising out of what had transpired in these 
 
ORAL ARGUMENT OP HON. EDWARD J. PHELPS. 201 
 
 Fisheiy disputes tLat the right of Great Britain to extend jurisdiction 
 over the Bay of Fundy as coming within its headlands had been 
 asserted. I may be wrong. 
 
 Lord Hannen. — It was asserted by Great Britain but overruled. 
 
 Senator Morgan. — I understood it was overruled upon the ground 
 that there was an American island in that Bay. 
 
 Mr. Phelps.— I presume, if your Lordship had been umpire instead 
 of Counsel, it would not have been overruled. 
 
 Lord Hannen.— That is a left handed compliment. 
 
 Mr. Phelps. — It is by no means so intended, my Lord. I mean only 
 to say, if the Tribunal had had the advantage of your Lordship's judg- 
 ment on that point they would have come to a different conclusion. 
 This is aside: it is a mere illustration of what I was saying. 
 
 Sir Henry Maine speaks of the English rule, and he states it more 
 perspicuously than I do. In the note at page 147 of the American 
 argument will be found a quotation from Sir Henry Maine. He is 
 speaking of these survivals. The whole chapter is on this subject. It is 
 the last book our lamented friend ever wrote — he says on page 80 : 
 
 Another survival of larger pretensions 
 
 that is to say, another survival of the old mare clausum idea which he 
 is discussing, 
 
 is the English claim to exclusive authority over vrhat were called the King's Cham- 
 bers. These are portions of the sea cut off by lines drawn from one promontory of 
 our coast to another as from Lands End to Milford Haven. The claim has been 
 followed in America, and a jurisdiction of the like kind is asserted by the United 
 States over Delaware Bay and other estuaries which enter into portions of their 
 territory. 
 
 If all this was wrong and the jurisdiction did not survive, that does 
 not affect my argument. I only use it as an illustration. Now to 
 pursue the observation that I made before, this idea will be found to 
 enter into the whole of the law of the sea wherever you touch it. It 
 is the basis of every general restriction that is settled, and laid up 
 among the maxims of international law. 
 
 Take, for instance, the subject of piracy. My learned friend. Sir 
 Richard Webster, fell into the error, and unintentionally did me the 
 injustice of supposing that my allusion to that subject was with a view 
 of drawing a parallel between killing the seals and piracy. The par- 
 allel that exists between them every man may draw for himself; that 
 was not my purpose. I allude to that principle in the law of nations 
 which jBnds expression in giving ju'risdiction to any nation to try a 
 pirate and execute him. Now a man accused of a crime, even of piracy, 
 has his well known rights. He is not guilty till he is found to be guilty. 
 He is presumed innocent. And every man accused of a crime, where 
 the common law prevails at least, has certain rights as well. He has 
 a right to be tried in the district where the crime was committed, or if 
 committed on a ship on the high seas to be tried in the country to which 
 that ship belongs ; so that if a man is charged with committing a murder 
 on the high seas, which is all that can be said of him until he is con- 
 victed, he has a right to be tried in the jurisdiction of the country to 
 which that ship appertains and forms a part, just as when committed 
 on the shore he has the common law right to be tried in the district 
 where the crime was committed, and nowhere else. 
 
 Why is that taken away in the case of piracy? In the case of mur- 
 der, of robbery at sea, which is what piracy really is,-^why may a man 
 be taken into any port if the country chooses to exercise the jurisdic- 
 tion, and be tried and condemned and executed? Simply because the 
 
202 OEAL ARGUMENT OP HON. EDWARD J. PHELPS. 
 
 protection of nations requires it; simply because in the days when 
 piracy was more frequent than it ever can be again owing to the 
 improvements in navigation, it was necessary to the protection of the 
 world and of maritime nations, whose ships were afloat upon the sea, 
 that they should not be required to wait for the slow and possibly the 
 reluctant process of the nation from whom the pirate came, to proceed 
 and enforce it. 
 
 The same rule prevails about carrying a flag. What is the reason, 
 pray, why I may not put to sea in a vessel of my own upon some honest 
 and innocent pursuit without carrying the flag of my country or any 
 other? 
 
 Senator Morgan. — May you not? 
 
 Mr. Phelps. — No ; I may not, I understand it to be settled law that 
 a vessel may be overhauled by the armed vessel of another nation unless 
 it carries some known flag. 
 
 Senator Morgan. — Overhauled by the armed vessel of any nation ? 
 
 Mr. Phelps. — Yes, unless it carries some known flag and hails from 
 some known port. 
 
 Mr. Justice Harlan. — ^Will you state the proposition again? 
 
 Mr. Phelps. — That a vessel is required, or may be required, on the 
 high sea, to sail under the flag of some nation which she is authorized 
 to carry. 
 
 The President. — If there is a jpr&per flag. It must be under the 
 flag of its nation. 
 
 Mr. Phelps. — Yes — so that she "hails", as the seamen say, from 
 somewhere. 
 
 Lord Hannen. — I think the Senator's doubt was one that passed 
 across my mind — whether it was obligatory literally to carry a flag, 
 which means a flag of some nation. 
 
 Mr. Phelps. — I used the word "flag" figuratively. I mean to say it 
 must be registered — ^legally set forth. When I say "carry" a flag, of 
 coarse I do not mean that she would never be found at sea without a 
 flag flying. 
 
 Senator Morgan. — It must have a license. 
 
 Mr. Phelps. — It must have a license — it must have a home — ^it must 
 have papers. 
 
 The President. — Covered by the flag of the nation. 
 
 Mr. Phelps. — Yes, having a nationality. 
 
 Senator Morgan. — That is very different from the right of a man to 
 go on the King's highway even in a foreign country. 
 
 Mr. Phelps. — Then there is the other idea we have encountered 
 before, which I only allude to now : A vessel may be pursued on the 
 high sea for breaking a municipal regulation. That has become settled 
 by many judicial decisions. It must be undoubtedly /resfe pursuit, but 
 a vessel that goes into the jurisdiction of a municipal regulation, and 
 infringes it and takes to flight, may be pursued and arrested on the 
 high sea. Those are specimens of what I may call the general restric- 
 tions of this 3 mile limit, the jurisdiction exercised over estuaries, bays, 
 fjords and waters of that sort — the requirements of registering and 
 nationality — the laws that apply to pirates. — Every one of the general 
 restrictions that, irrespective of the requirements of a particular nation 
 or a particular case, vessels are subject to on the high seas, are traceable 
 to that. They come back to that. Those are some of the limits to the 
 freedom of the sea, which have never been surrendered. 
 
 Then when we come to special laws, like those that have been indi 
 cated before — the Hovering laws of Great Britain and of the United 
 
ORAL ARGUMENT OP HON. EDWARD J. PHELPS. 203 
 
 States by which vessels may be arrested outside of the three-mile line 
 under certain circumstances — the French laws to the same effect — 
 the quarantine laws — all that class of cases in which you find a statute 
 stretching out beyond even the three-mile line and reaching a vessel on 
 the open sea, where the sovereignty of the nation cannot reach, where 
 even the qualified sovereignty that attends on the littoral sea cannot 
 reach, come back to the same thing, the necessity of the special pro- 
 vision, the anticipatory provision in the particular case. Without now 
 coming at all to the question of the special individual case, I am 
 speaking of special restrictions which some nations enforce over some 
 part of the high sea for certain purposes. All this class of enactments 
 is perfectly reconcilable when attributed to the proper source; and the 
 apparent puzzle that is sometimes set forth is answered: "How can 
 you extend a statute to a distance of 12 miles from the French Coast 
 or from the British Coast or from the United States Coast?" You can 
 do it because a reasonable necessity of a certain class of cases — quaran- 
 tine, revenue or whatever it may be — requires it; and the moment that 
 takes place the assertion is made, and is accepted and acquiesced in 
 everywhere. We find no contradiction of it. 
 
 Take the time of war. Belligerent rights mean nothing except the 
 rights a nation has in time of war. With its enemy law is suspended; 
 but with neutral nations not engaged in the war it acquires no addi- 
 tional rights of self-defence. It may acquire additional necessities; it 
 does acquire certain necessities that do not exist in time of peace. 
 Therefore a set of Eegulations has grown up, and come to be settled 
 so that they are no longer open to dispute, on the subject of the rights 
 of a nation which happens to be at war, as against neutrals. 
 
 Take the familiar illustration about which there is no question : The 
 breach of blockades, A nation blockades the port of its enemy. The 
 citizens of another country are engaged in a legitimate trade with that 
 port. To break up that trade may ruin the parties engaged in it, — 
 parties whose all may be embarked in it. 
 
 What is the propriety of ruining that neutral in an innocent business 
 the war finds him engaged in? It is exactly this idea, and it has been 
 so stated by the writers on the subject — it has been placed on that very 
 ground — that the right of the individual, although the thing that he is 
 doing is proper enough in itself, must give way when it comes into col- 
 lision with the interest of the nation which is caiTjdng on war of which 
 the blockade is one of the means. Perhaps before we adjourn, Sir, I 
 may refer on that, and the analogous Eegulations, to the reasons that 
 are given by writers of authority, for such law as that. Mr. Manning 
 (on page 162 of the American Argument and 252 of his book), states 
 this principle : 
 
 The greatest liberty wMoh law should allow in civil government, is the power of 
 doing everything that does not injure any other person, and the greatest liberty 
 which justice among nations demands, is that every state may do anything that does 
 not injure another state with which it is at amity. The freedom of commerce and 
 the rights of war, both undoubted as long as no injustice results from them, become 
 questionable as soon as their exercise is grievously injurious to any independent 
 state, bnt the great difference of the interest concerned makes the trivial nature of 
 the restriction that can justly be placed upon neutrals appear inconsiderable, when 
 balanced against the magnitude of the national enterprises which unrestricted 
 neutral trade might compromise. That some interference is justifiable will be 
 obvious on the consideration that if a neutral had the power of unrestricted com- 
 merce, he might carry to a port blockaded and on the point of surrendering, provi- 
 sions which should enable it to hold out and so change the whole issue of a war; 
 and thus the vital interests of a nation might be sacrifloed to augment the riches of 
 a single individual. 
 
204 ORAL ARGUMENT OF HON. EDWARD J. PHELPS. 
 
 Grotius, referring to the same right to trading in articles not usually 
 contraband, says: 
 
 For, if I cannot defend myself without seizing articles of this nature which are 
 being sent to my enemy, necessity gives me the right to seize them, as we have 
 already explained elsewhere, under the obligation of restoring them unless there be 
 some other reason supervening to prevent me. 
 
 That is while engaged in a trade which is proper enough in itself 
 except that it supplies an enemy. 
 
 Mr. Wheaton, commenting upon this opinion of Grotius, points out that it is 
 placed by that author entirely upon the ground of the right of self-defense, under 
 the necessities of a particular case; that Grotius does not claim that the transpor- 
 tation of such property is illegal in itself, or exposes the vessel carrying it to capture ; 
 but that necessity nevertheless justiiies in the case in which it actually arises, the 
 seizure of the vessel as a measure of self-defense. And he shows by further refer- 
 ence that it was the opinion of Grotius that a necessity of that sort exempts a case 
 from all general rules. 
 
 Mr. Manning, the author I cited before, at page 263 of his book, thus 
 defines the rights of belligerents as against neutral commerce. 
 
 It consists merely in preventing vessels from interfering with the rights of bel- 
 ligerents, and seeking their own emolument at the direct expense of one party in 
 the contest. 
 
 And Azuni (I am reading from the same page, p. 163 of the Ameri- 
 can Argument, where the reference to the page is given), says: 
 
 The truth of this theory (right of neutral trade) does not, however, deprive bel- 
 ligerents of the right of stopping the commerce of neutrals with the enemy when 
 they deem it necessary for their own defense. 
 
 All those cases — the right to prohibit a vessel entering a port — the 
 right to prohibit a vessel carrying what is called contraband of war — 
 although that may be the subject of a preexisting, regular, established, 
 and proper trade — the right to prohibit vessels from carrying passen- 
 gers if they are connected with the forces of belligerent, or carrying 
 despatches — all that interference on the sea, in cases of war rights, 
 with the plain and obvious rights of individuals, is reposed upon the 
 idea that the right of the individual must give way, although what he 
 is doing is not otherwise objectionable, when the consequence of it is 
 to work an injury to the important interest of a maritime nation, that 
 is, a nation able to protect itself upon the sea. These rights stand 
 upon nothing else, and as I have said, while these illustrations apply 
 to the time of war, (and I shall cite others that apply to the time of 
 peace) it is only the difference in the necessity which the war creates, 
 because the neutrals not parties to the war are in no way concerned 
 with its relations. 
 
 Perhaps, Sir, you will permit me to cite the other illustrations to- 
 morrow morning. 
 
 The President.— If you please. 
 
 [The tribunal adjourned accordingly till Wednesday the 5th July, 
 at 11.30.] 
 
FIFTIETH DAY, JULY 5™, 1893. 
 
 Mr. Phelps. — I was discussing yesterday, Sir, as you will remember, 
 the general question of the extent of the freedom of the sea. I was 
 endeavouring to point out that, in the progress of this subject from the 
 days when mare clausum was the law of nations, to the time when the 
 opposite doctrine prevails, restrictions had been made and preserved 
 and universally recognized on that freedom which constitute its present 
 limits; that it has limits, that it must have limits, will be universally 
 conceded; the question is what are they and whence are they derived? 
 I had stated this proposition, not as necessary to this case, because, 
 as I shall proceed to show in the application of the law to the facts of 
 this case, it is not necessary to go to any such length. I had stated it, 
 because it appears to me to be the foundation of the true rule on the 
 subject. That is, that the exact converse of the rule that obtains in 
 municipal law is applicable in international concerns to questions 
 between individuals and nations, — not between the individuals of one 
 nation and the individuals of another, but between individuals and 
 nations. 
 
 It is a familiar rule, that if a man is in the exercise of a legal right, 
 no matter what he is doing, the consequences of his conduct to any 
 other persons constitute no legal objection to the exercise of his right. 
 The consequence may be destructive to others, but they have no legal 
 right to complain, whatever moral grounds they may have for remon- 
 strance. I claim the law to be the other way when the question arises 
 between the individual pursuingon the high seas some object of his own, 
 for gain, when the consequence becomes gravely injurious, not to say 
 destructive, to some important national interest of a nation bordering 
 upon the sea. That is the proposition. • I have endeavoured to illus- 
 trate it as lying at the bottom of all these well-ascertained rules that 
 apply in peace and in war, — one set that apply to the rights of belliger- 
 ents, which do not, of course, arise in time of peace; another set which 
 apply to cases that occur in times of peace; and to point out how many 
 forms it seems to take in the reservation of territorial seas, in the opera- 
 tion of general statutes that apply all along the coast, in the operation 
 of special statutes that apply to special cases, coming down to those 
 occasions of the exercise of actual force which becomes necessary on 
 the spur of the moment, and are not preceded by any previous exigency. 
 
 I have alluded to most of the belligerent rights that I care to refer to. 
 But there is one which has been made the subject of so much observation 
 on the other side, that while it has nothing to do with this case, except 
 as an illustration of the argument, I want to refer to it very briefly, 
 and that is, the right of search. 
 
 In this case we have nothing whatever to do with the right to search. 
 If it was exercised in the case of these cruisers, it was exercised years 
 ago, and that is a subject that may remain to be discussed between the 
 two nations, but is not referred here. That is one of the belligerent 
 
 205 
 
206 ORAL ARGUMENT OF HON. EDWARD J. PHELPS. 
 
 rights, and it is said, and said upon excellent authority frequently, that 
 the right of search is confined to a time of war. It is remarked by 
 Mr. Justice Story in one of the cases that have been referred to ; it is 
 remarked by other writers and judges which have been cited in the 
 course of this discussion that the right of search is a war right. 
 
 The President. — ^Except where it is conceded by special conven- 
 tion, 
 
 Mr. Phelps. — Yes, where it is exercised as a right independent of 
 Treaty. Why is it a war right? Is the right of self-defence against 
 neutrals any greater in time of war than in time of peace? Nobody 
 could claim that. It is a war right because the necessity for it prin- 
 cipally arises in time of war, because the cases are very rare indeed 
 when in time of peace it can be regarded as necessary or reasonable to 
 overhaul the vessel of a friendly nation and subject it to a search. 
 
 But suppose it became necessary, is there any principle upon which it 
 can be denied in time of peace if you establish the necessity ? In point 
 of fact it has been affirmed and has been conceded by very high authority 
 in time of peace but under another name. In a remarkable instance that 
 is referred to in the United States Argument, where the discussion arose 
 between Lord Aberdeen, who was then Minister of Foreign Affairs, and 
 Mr. Webster, who was the Secretary of State of the United States — a 
 certain right of visitation was asserted by Great Britain in time of peace, 
 enough to answer the necessity of the case, and it was objected to by the 
 United States. "Why", says Lord Aberdeen, "this is not the right of 
 search. We are not claiming the right of search. We are claiming the 
 right of visitation." If he was defining the term according to its techni- 
 cal meaning, as recognized by Courts of Justice in maritime cases, he 
 was right. The right of search goes further. He pointed out that it 
 was only the right which was made necessary in time of peace, and did 
 not amount to the right of search. Mr. Webster, on the other hand was 
 obliged to concede — he was the last man that could successfully argue 
 the wrong side of a question, and one of the last men that had any dis- 
 position to do it — he was compelled to concede to Lord Aberdeen that 
 to that extent the right existed, but he says it is after all the right of 
 search ; and in that he also was right. You are only modifying, redu- 
 cing, the extent of the exercise of this right, because the extent of it is so 
 much less in time of peace than in time of war. I read from page 162 
 of our Argument where the extracts are; the whole of it is here. This 
 is taken from Mr. Webster's works. My friends, I believe, have referred 
 to the same correspondence from the British ofilcial sources. Lord 
 Aberdeen says: 
 
 That it— 
 (that is the British Government) 
 
 still maintains, and would exercise when necessary its own right to ascertain the 
 genuineness of any flag which a suspected vessel might bear: that if in the exercise 
 of this right, either from involuntary error or in spite of every precaution, loss or 
 injury should be sustained, a prompt reparation would be afforded, but that it should 
 entertain for a single instant the notion of abandoning the right itself would be 
 quite impossible. 
 
 That is the position of Great Britain in regard to the right of visita- 
 tion in time of peace — enough, at least, to ascertain the true nationality 
 of the vessel. 
 
 Mr. Webster denies that right in that case upon the groundthat it is 
 not necessary, but what does he say about the general rule ? 
 
OEAL ARGUMENT OF HON. EDWARD J. PHELPS. 207 
 
 That there is no right to visit in time of peace except in the execution of revenue 
 laws or other municipal regulations, in which oases the right is usually exercised 
 near the coast or within the marine league, or where the vessel is justly suspected 
 of violating the law of nations by piratical aggression; but wherever exercised, it 
 is a right of search. 
 
 And that is where the question was left. That is the kernel of that 
 whole discussion, extracted from despatches that are voluminous and 
 will be interesting to be read by anybody who desires to pursue this 
 subject further than it is at all necessary for me to pursue it. Lord 
 Aberdeen says : We do not claim the right of search in time of peace, 
 but we do claim the right of Tisitation and going on board and search- 
 ing for the necessary facts. In other words, Ave only claim in time of 
 peace the right of going as far as is necessary. Mr. Webster replies: 
 While you have not that right iti this case, I admit that in time of peace, 
 you may visit when it is necessary, when there is a revenue law or any 
 aggression of regulations; that is generally exercised near the shore; 
 but it is a right of search wherever it is exercised. 
 
 He was far too clear in his legal principles not to see that the moment 
 you set foot upon the vessel of the other nation in the exercise of a 
 claim of right that was a right of search, and that the definition of the 
 term was not to be limited by the enquiry whether you search the deck, 
 or the cabin, or the hold; that to board it at all for the purpose of 
 ascertaining facts was a right of search — a limited right, of course, but 
 limited by the necessity of the case. 
 
 The case of the Trent has been alluded to in this connexion, and I 
 pass rapidly over these illustrations. There was a discussion between 
 Great Britain and the United States arising out of the taking by a 
 naval vessel of the United States of the ambassadors of the Confed- 
 erate States who were on their way to a European country out of a 
 British vessel. That vessel was overhauled, and they were taken out. 
 Great Britain demanded that they should be released ; and a discussion 
 took place. How did that come out? I have no time to wade through 
 it; it is not usefal. The precedent arises from what was conceded, not 
 from what was claimed on one side or the other. Mr. Seward gave up 
 those men, upon the ground that if the United States had a right to 
 intercept them at all, it must, according to the established usage of 
 nations, have captured the vessel. That if the vessel was engaged in 
 such conveyance of contraband of war as the United States had a right 
 to object to, the rule on that subject had become settled and estab- 
 lished in international law, and the only way was to capture the ves- 
 sel. Of course, if the occasion was not one that the United States had 
 a right to object to, then she could not interfere at all, and on that 
 ground you will find, if you pursue that somewhat interesting corre-, 
 spondence, the men were given up. But a point that was mad and dis- 
 cussed then remains unsettled. It was asserted on the one side and 
 denied on the other, and there was no concession, and there was no 
 settlement, and that was whether ambassadors come within the rule 
 that excludes a neutral vessel from conveying the military and naval 
 officers of one belligerent. It is quite well settled that a vessel exposes 
 itself to capture if it is made the means of transporting military or 
 naval officers for any State. Now it was said on the part of the United 
 States, this is equally within the spirit of the rule. Those ambassa- 
 dors, though not officers, either military or naval, were on their way 
 across the sea to negotiate an alliance or a recognition of the war. 
 Their business was directly in aid of the rebellion, and, if it succeeded, 
 
208 ORAL ARGUMENT OF HON. EDWARD J. PHELPS. 
 
 might turn the scale and make the rebellion succeed. That was Mr. 
 Seward's argument. It was said on the other hand, that the rule has 
 never been extended to civilians; that it stops at military and naval 
 ofiBcers, and if you go away from that, you get into such secondary and 
 indirect consequences that there is no possible limit to the cases that 
 can be cited where a vessel is carrying passengers that are really in aid 
 of the war. But the controversy came to an end when Mr. Seward con- 
 ceded that if he was right in classing ambassadors with military and 
 naval ofl9cers and bringing them within the operation of established 
 rules, then he should have seized the vessel. Therefore, in no event, 
 could he board the vessel and take certain persons out of it. 
 
 The Pkesident. — It must be judged and go to a Prize Court. 
 
 Mr. Phelps. — Yes: if he seizes the vessel and brings it in, then the 
 parties have a right to be heard and they are to be heard upon the 
 truth of the assertion. They may show if they please, that the men 
 were not ambassadors, but ordinary passengers, or whatever the fact 
 was, but if you board the vessel and take the men out there is no judi- 
 cial proceeding. And that is the point on which the Supreme Court of 
 the United States divided in the case of Rose v. Biniely, where a capture 
 was made by a French cruiser of a vessel she was entitled to capture, 
 but it was not carried into port. The majority of the Court thought 
 the capture could not be sustained, but Justice Johnson thought other- 
 wise. The case of the United States as presented by Mr. Seward comes 
 still further within the principles of the objection to the capture in the 
 case of Rose v. Himely, That is all there was in the " Trent" case. 
 
 We have stated many other instances in the argument: I need not 
 go over them: I am sure the Tribunal have read what we have under- 
 taken to say on that subject; and if they have, they do not require it 
 to be repeated. Take the case of St. Helena, where Great Britain pro- 
 hibited vessels from coming within 12 leagues; quite outside the terri- 
 torial waters — virtually excluded them from coming there at all. Sup- 
 pose a neutral vessel, not a French or a British vessel, but an American 
 vessel, engaged in the transportation of passengers on the high seas, 
 no war then existing, because the war was over with the final surrender 
 of Napoleon. What is to hinder a vessel on the high seas, away from 
 territorial waters, from carrying a passenger for hire? It is a per- 
 fectly legitimate and lawful business. Why was it prohibited 1 !Now 
 into the necessity of that prohibition, or the propriety of it upon the 
 facts, I do not enter. That is a question that it is unnecessary to 
 revive at this date. Whether the Emperor should have been impris- 
 oned, or whether he should have been retained there, or whether any 
 of these measures were necessary and proper on the facts of the case, 
 are questions of fact; but supposing that we concede the premises 
 which the British Government asserted — suppose it was true that the 
 necessity of their self-defence required this measure, then what is to be 
 said of it as matter of law? Can anybody challenge it? I could go 
 on referring to cases of that sort, and referring to supposed cases; an. 
 eminent writer has well remarked, in a passage cited here, that where 
 cases maybe supposed, there cases may exist; that which may be fairly 
 and reasonably supposed may come to pass. I respectfully invite any 
 lawyer, any publicist, who desires to occupy his mind with the consid- 
 eration of this question, to set his imagination at work, and see if he 
 can state any case, in which the pursuit, for profit or gain by an indi- 
 vidual, of some purpose or business, upon the high sea, comes in con- 
 
ORAL ARGUMENT OP HON. EDWARD J. PHELPS.^ 209 
 
 tact to a gravely injurious extent with an important national interest, 
 in which that nation has not the right to protect itself; whether there 
 is a,ny case in which the right of the individual, which would otherwise 
 be inoffensive and unobjectionable, must not give way; whether it is 
 in time of peace or in time of war; whether it applies to one national 
 interest or another ; whether it is an industry, a commerce or a trade ; 
 wherever it is any interest that can be dignified with the name of a 
 national interest important to be maintained, and which is injuriously 
 assailed. 
 
 What was the history of all the warfare between England and the 
 continental countries which figures so prominently in the diplomatic 
 and general history of the world of those days, the early years of 
 this century? When this was incidentally alluded to, the President 
 remarked that it did not begin on the side of France or Napoleon ; it 
 began with Prussia. It was Prussia, in the first place, in the year 1806, 
 that put forth a decree closing ports of that country on the North Sea 
 and the rivers to English shipping, a nation with which they were at 
 peace. I do not discuss the necessity or the propriety of that at all; 
 I should be inclined to conclude at this day that there was no justifica- 
 tion for it. By way of retaliation, the British Government gave notice 
 that they established a sort of paper blockade from the Elbe to Brest, 
 where they had no force, with certain restrictions that I need not go 
 into. That was their response. Then Napoleon came out with his 
 Berlin Decree, and declared the British Islands to be under blockade 
 and commerce with them as well. 
 
 Mr, Justice Harlan. — Where do you refer to for that? 
 
 Mr. Phelps. — I was referring to Woolsey's International Law for 
 the convenience of the dates, at page 35ii. There is a very clear state- 
 ment of the history. Then in 1807 came the Orders in Council from 
 Great Britain declaring that no vessel should be permitted to sail from 
 one port to another (I am now quoting from the Order) both of which 
 ports should belong to, or be in the possession of France or her Allies 
 or be so far under their control that British vessels might not trade. 
 A second Order in Council declared that all the ports of France, her 
 Allies and Colonies, and also States at peace with Great Britain, and 
 yet excluding her flag, should be under the same restriction as to peace 
 and commerce as if blockaded by British forces. It was an assertion 
 by those nations of the right to extend the principle of blockade far 
 beyond any limit it had ever reached before. Instead of confining it, 
 as established rules confine it, to those ports which are blockaded by 
 the presence of an effectual force, they assumed the right to declare a 
 blcckade on paper as against neutrals. What was done against their 
 adversaries, has nothing to do with these questions ; they are simply acts 
 of war. As against neiitrals, they excluded from ports not blockaded 
 honest, legitimate commerce. Here, again, I shall not occupy myself 
 at all with the discussion of the necessity of those things on the part 
 of any of those countries, — on the part of Prussia, in the first place, 
 on the part of England in the second place, on the part of France in 
 the third place, and, finally, of the United States who were drawn into 
 it by the embargo they established, and the bitterness that came from 
 that was only quenched in the War of 1812. The principle was, and 
 that great lawyer, Lord Stowell, afiSrms it in the clearest manner, that 
 all those things, extreme as they were, were within the right of the 
 nation, if tine necessity of the ease required it. We have cited some of 
 these cases. It is always agreeable to refer to the language of so great 
 a lawyer as Lord Stowell on any subject, and, granting him his 
 B S, PT XV 14 
 
210 ORAL ARGUMENT OF HON. EDWARD J. PHELPS. 
 
 premises of fact, tlie law that he laid down is not to be doubted and 
 never has been doubted. There is not a case to be found that I know 
 of, there is not a writer to be found, witli whose writings I am familiar, 
 that ever undertook to say that Lord Stowell was wrong. Many have 
 been found to say that the facts did not give rise to the necessity that 
 was claimed; many have been found to criticise the action of these 
 nations, but upon what ground ? That they were wrong in their law 1 
 Ko; that they were wrong in their facts. This judgment of Lord 
 Stowell, was on the condemnation of a vessel; it was not an abstract 
 or obiter opinion ; it was when a vessel of a neutral Power was cap- 
 tured on the high seas by British cruisers for attempting to carry on 
 a legitimate and proper commerce with ports, where there was no 
 blockading force, in violation of the paper blockade, that the question 
 came up for Lord Stowell's decision. He says in the case of the "Suc- 
 cess " in the 1st Dodsons' Eeport at page 133 : 
 
 The blockade thus imposed is certainly of a new and extended kind, but has 
 arisen necessarily out of the extraordinary decrees issned by the ruler of France 
 against the commerce of this country, and subsists, therefore, in the apprehension 
 of the court at least, in perfect justice. 
 
 He did not say it was an act of war; it could not be an act of war; 
 it was the seizing of a vessel of a nation with whom they were not at 
 war — a neutral vessel. 
 
 In the case of "The Pox", in the 1st Edwards' Reports, page 314, he 
 says: 
 
 When the state, in consequence of gross outrages upon the laws of nations com- 
 mitted by its adversary, was compelled by a necessity which it laments, to resort to 
 measures which it otherwise condemns, it pledged itself to the revocation of those 
 measures as soon as the necessity ceases t 
 
 stating in the clearest manner the principle upon which they rest. 
 
 In the case of " The Snipe ", which is also in Edward's Reports, he 
 says, referring to these measures : 
 
 In that character they have been justly, in my apprehension, deemed reconcilable 
 with those rules of natujal justice by which the international communication of 
 independent states is usually governed. 
 
 That Judge had not made the discovery, for which we are indebted 
 to my learned friend, that justice did not make international law in 
 new cases between nations, but that you must find the previous sanc- 
 tion of the established usage of the world before you can execute the 
 justice that lies plainly in your way. He proceeds upon the ground 
 that in that absolutely new case, when the idea of blockade rights as 
 against neutrals was carried far beyond any assertion that ever had 
 been made before, if the necessity was such that the rules of natural 
 justice made it right and made it applicable, then, it was within the 
 principles of that international law, on which alone there could be a 
 judgment of condemnation against neutral vessels not engaged in car- 
 rying contraband of war, but simply engaged in legitimate commerce 
 with ports that were not blockaded. 
 
 IsTow, suppose a set of cases to which the attention of my learned 
 friends has been invited; and the failure of the attempt ol lawyers of 
 the first rank from whom everything is to be expected that their side 
 of the question admits of, to give an intelligent answer to these enquiries 
 is a stronger argument in favour of the propositions we advanced than 
 we can make. If they could be answered, surely no men in the world 
 are better qualified to do it than my three learned friends who have 
 addressed the Court. 
 
ORAL ARGUMENT OF HON. EDWARD J. PHELPS. 211 
 
 I am sure the Tribunal could not have failed to observe, as we passed 
 along through some of these historic instances, the various supposed 
 cases that were made. We will go back to Mr. Blaine's illastration put 
 forth in the correspondence. Here are the Newfoundland Fisheries 
 belonging to Great Britain or its province, the source of a valuable 
 industry, a great means of subsistence to its people, carried on for a 
 very long time, and protected by the laws of that province. That they 
 have any property in the fish, which does not attach to the shore, out- 
 side of the 3 mile line, they do not claim. None of the conditions upon 
 which we have claimed the property in the seals attach to them. 
 
 Now suppose vessels go there, keeping outside the territorial waters, 
 and proceed to destroy those fish by dynamite or other explosive pror 
 cesses by which they can be brought to the surface and availed of 
 wholesale, and out of which a profit can be made, the necessary result 
 of which is the destruction of the fishery, and extermination of the fish. 
 We put the question: Is Great Britain remediless? Have they to 
 submit to that destruction at the instance of a few fishermen from Cape 
 Cod who can make a profit for a year or two in that way before the last 
 fish disappears? What does my learned friend say to that? He says 
 that would be malicious. He apparently feels that he touches bottom 
 there. There is an element of malice. Well, let us see; I do not sup- 
 pose the case where an expedition is fitted out to go there for the mere 
 purpose of destroying the fishery. I suppose the case where the 
 Nantucket fishermen can make a satisfactory profit out of the business 
 for a year or two, and that is what they go there for. If, then, malice 
 is the express intent to work an injury to a person for the sake of 
 working an injury, it does not apply to that case. These men are there 
 to make money, regardless of the destruction they are working. 
 
 Now, I agree with my learned friend that it would be malicious in 
 the true definition of that term; not malicious because it is pure malice, 
 but malicious because wanton, reckless destruction is always malicious, 
 and it is not to be redeemed by the fact that a man can make a profit 
 out of doing it. If I fire my gun out of the window into the street 
 without taking any particular aim and destroy somebody's life, I am 
 not to be heard to say, "I did not mean to kill that man; I had no 
 quarrel with him." "Why then did you fire that gun out of the window?" 
 " Because somebody told me he would give me £5 if I would. That is 
 what I did it for. I had no wish to injure anybody. I could make a 
 profit out of it. " Does that exonerate me from that malice which to a 
 certain extent must always exist to make a man criminally liable? It 
 may not be murder, it may be modified to the degree of manslaughter, 
 but that I should be criminally responsible for the act in some degree 
 of the law of homicide is plain enough; it is not in the least modified 
 by the gain. 
 
 Now in that case, my learned friends do not undertake to say that 
 Great Britain has no right, that all she could do would be to go and 
 invite the United States to enter into a treaty by which she would keep 
 her people at home. They may not be subject to the jurisdiction of the 
 United States. They may be wanderers of the sea, subject to no par- 
 ticular jurisdiction, like some of the bands of renegades that were broken 
 up by President Monroe and another President in the cases we have 
 cited. It is not piracy. As my learned friends well argue, it does not 
 come within the definition of piracy, to destroy fish by dynamite. Is 
 there then any right of defence or protection, or must the Government 
 sit down and permit the fishery to be destroyed? Apply that to the 
 business of quarantine. Quarantine laws are in force within the terri- 
 
212 OBAL ARGUMENT OP HON. EDWAED J. PHELPS. 
 
 torial limits, and territorial limits are usually sufficient for the purpose. 
 There is usually no necessity to go out on the high sea to intercept a 
 vessel to enforce quarantine regulations. But suppose it became neces- 
 sary: suppose a vessel coming from some plague-stricken port, laden 
 with contagion which would ravage a whole continent, cannot be met 
 effectually within the three-mile limit, and it is necessary to intercept 
 her outside, is there any right to do it? Great Britain has asserted 
 that right by statutes that are on her Statute Book yet, and which are 
 mentioned with api)robation by writers and Judges. Suppose the case 
 of the cable to which my learned friend's attention was invited. Sup- 
 pose two nations established a cable and there is a party who, by 
 oyster-dredging or some industry at the bottom of the sea, that is well 
 enough in itself, if it did not interrupt the operations of the cable, is 
 interrupting its operations and is threatening its destruction, and the 
 man says, " I am on the high seas; I am fishing. Fishing is a right on 
 the high seas. If it interrupts year cable, I cannot help that. You 
 must take care of yourself." Is there any remedy? My learned friend 
 says, "Yes, you have a treaty. We have a treaty to prevent that 
 very thing, showing that my illustration is not very far fetched. We 
 anticipate that by a treaty". With whom? All the nations of the 
 earth? No, that is practically impossible; if one nation is left out of 
 the treaty, that one may go and engage in the very operations that 
 endanger this cable. There is no obligation on the part of any nation 
 to enter into any treaty unless she pleases. Suppose any country is 
 invited by the United States to join in a convention for the protection 
 of a cable between Newfoundland and Ireland, which is a Government 
 work; the nation says, just as some of the countries replied to Mr. 
 Bayard's invitation to join in a convention for the preservation of the 
 seals, " There is no objection to it, but it does not interest us. We do 
 not care to go into it". The only nations that responded to Mr. Bayard 
 favorably were Eussia, Japan, and Great Britain. All the rest said it 
 did not matter, and put it aside; was a thing they had no interest in. 
 Now suppose that nation refuses to enter into a convention, or suppose 
 what is inevitable, that it is found impossible to extend it to every 
 sea-going nation on the face of the earth, or suppose in this case, as I 
 have supposed in the case of the dynamite, the parties engaged in the 
 fishing are not under the special control of any nation, or aie a parcel 
 of renegades from various nations. The question is, has the Govern- 
 ment a right to protect that valuable and important industry, or at 
 the instance of this gang of adventurers, must it submit to have it 
 destroyed. My learned friends have no answer to that, except to say, 
 there is a treaty. It does not meet the point. The treaty does not 
 show that there would be no rights if there were no treaty. 
 
 Suppose we have a light house out in the sea, more than three miles, 
 and somebody engages in an industry, or pursuit that endangers the 
 lighthouse, or perhaps entirely or largely obscures the light, so that 
 the vessels of the country that established it are deprived of the benefit 
 of the light, — what is my learned friend's answer to that? He says 
 the lighthouse is a part of the territory of the country. But on what 
 principle is a lighthouse part of the territory of the country 10 miles 
 out at sea? Upon what principle has a nation a right, if they are cor- 
 rect in these theories, to put a light-house out there and say, " It is 
 part of our territory?" Why none whatever. And even granting it 
 is a part of the territory, suppose you say, " This structure we have 
 erected at our own instance in a part of the sea which is the highway 
 of nations and common to all th© world is paa^t of our territory " — 
 
ORAL ARGUMENT OF HON. EDWARD J. PHELPS. 213 
 
 "Very well; we do not interfere with your territory; we carry on a 
 legitimate industry" — "But you are obscuring the light and rendering 
 the lighthouse in a great measure valueless." They reply; " We cannot 
 help that; we are in the exercise of our right." And there is not one 
 of these cases that my learned friend can answer, because each case, as 
 it stares you in the face, shows the impossibility of establishing any 
 principle of law that justifies a class of outrages of that description; 
 much less can you cite any case in the history of the world in which 
 anything of that nature ever was submitted to. 
 
 STow I have discussed, as I said in my opening observations this 
 morning, this proposition of law ou the basis of the theory that the 
 objectionable business or industry was innocent in itself, — was fishing, 
 was doing anything which in and of itself, if you could look at it aside 
 from its consequences, could not be objected to upon moral, legal, or 
 any grounds; and I have tried to show, and the more this proposition 
 is reflected upon, the clearer it becomes to any mind I think that is 
 capable of clear thought, that even there, where the question is between 
 the individual and the nation, he must forego the small gain that he 
 would make by the destruction of an important national interest. 
 
 But what is this case? It is a case where the jjursuit, which is 
 claimed as of right, exterminates the race of animals, as well as destroys 
 the industry. So far as it destroys the industry, so far as that conse- 
 quence alone is concerned, it would come within the proposition I have 
 been dealing with. It might destroy the industry, but still be in other 
 respects an innocent pursuit in itself. Then would come the question, 
 whether the rule I have cited, is the true rule? But this case is noth- 
 ing of the sort. It is the extermination off the world of a valuable 
 race of animals, the last of their species; and it is doing that in a man- 
 ner, in the first place, that violates all the law that is administered 
 everywhere for the protection of such animals. In the second place, 
 it is so inhuman and barbarous that it would be indictable in any coun- 
 tiy under the head of cruelty to animals if it brought no extermination. 
 There are things that the owners of animals may not do. You may 
 slaughter your domestic animals if you please; that is an incident to 
 the right of property, and is one of tlie uses to which they are put: 
 You may put them to death because they are no longer serviceable, or 
 for the purpose of making use of their flesh or their skins; but there 
 are methods of putting them to death that the law of no civilised 
 nation will allow. There are ways of disposing of your ox and your 
 ass that would subject you to indictment, although it is your own and 
 on your own premises, under the law of any country that I know any- 
 thing about or desire to know anything about. Barbarism and inhu- 
 manity to the humbler creation of the Almighty is as much prohibited 
 by the law as the intringement of property rights. 
 
 There is a class of people who seem to think, if you may judge by 
 what they say, that gain is the only foundation of right in regard to 
 anything which can be called property; that dollars and cents are all 
 there is of it; that the principal function of men on this earth is to 
 trade and to vote, and when those are answered, the function of law 
 is at an end. 1 do not so regard it. I say that this business, — I assume 
 now for the purpose of my argument what I expect to demonstrate 
 from this evidence, — I say that the conduct which is claimed here to be 
 a part of the freedom of the sea, instead of being something which, if 
 it had no particular consequence, would be innocent and lawful and 
 inoffensive as well as profitable — I say that it has a double curse upon 
 it: first, that it is exterminating from the world the race of animals, in 
 
214 ORAL ARGUMENT OF HON. EDWARD J. PHELPS. 
 
 which we alone are not concerned; in which all civilization is con- 
 cerned ; in which Great Britain is concerned, in respect of its particular 
 industries, as much as we are; in which France is concerned and other 
 nations, and in which all civilization, I repeat, is concerned to a greater 
 or less extent; — I say, in the second place, that if it were not extermi- 
 nating the race, this conduct offends the moral sense in its manner, is 
 so barbarous, so inhuman, so shocking — too shocking to be talked 
 about here or to have the evidence read in its revolting details — and 
 that by such conduct in such a manner, these people are destroying 
 this industry of the United States Government, not its only resource 
 by a great many, but in respect of which, as I reminded you so long 
 ago that it may well have been forgotten, the law would have been the 
 same if this poor province of Alaska had been an independent State, 
 and this far-sealing industry was every resource it had for the subsist- 
 ence of the people or for deriving its national expenses. There is not 
 one law for the large State and another for the small one, unless it is 
 the law of the strong hand. 
 
 That is the question with which this Tribunal is concerned, and which 
 would have induced me, if I had pursued my own individual judgment, 
 to have argued fhis case, so far as I had anything to say about it, in 
 two hours; because I deny — 1 respectfully deny — that after this con- 
 crete case which is to be determined by the Tribunal, is stripped of its 
 adjuncts, its superfluities, its connections, and its unnecessary analy- 
 sis, — when it is brought down to its elements, it presents that proposi- 
 tion and that is enough to determine it. Many others that we have 
 tried to discuss, with more or less success, may legitimately be pre- 
 sented. 
 
 The title of the United States Government to this territory is not 
 questioned. The industry which they built up there is not controverted. 
 Its value and importance are not doubted. That it is the means of such 
 civilization as is being successfully introduced there in the place of the 
 savage condition that prevailed is not questioned. That the operations 
 of these euphemistically termed pelagic sealers are of the character 
 that I have described and have the consequence that I have described, 
 will not be doubted, (if it is doubted now), before we have done with 
 this case; and the question is: Is a Government obliged to sit down 
 and suffer conduct at this expense, and for the benefit of my learned 
 friend Mr. Robinson's particular clients, or have they the right of pro- 
 tection in themselves, and for the world, against it? It is unnecessary 
 to carry this case in my humble judgment a single step beyond that 
 enquiry. They stand upon the freedom of the sea. Very well. You 
 have the right to stand upon the freedom of the sea so far as it goes, 
 and tDl you get to the limit of it. Is this within the freedom of the 
 sea? If it is, why then there are no limits. Then the sea becomes not 
 merely the highway of nations — not merely the element upon which 
 all nations are equal — it becomes the only element on the face of the 
 earth in which conduct which is universally repressed by criminal law 
 can be perpetrated with impunity, as against the nation that is gravely 
 injured by the consequences of it. Of course, in order for a nation to 
 assert itself against such conduct, it must be brought into such relation 
 to it that arises from sustaining a serious injury. In that respect, it 
 differs from the law of piracy. The title of the United States to inter- 
 fere rises out of the right and the necessity of self defence. 
 
 Ifow, Sir, a few words more, and but a few words on this point. I 
 remarked that I accepted my friend's suggestion that the destruction 
 of the Newfoundland fish by dynamite would be malicious. Extermi- 
 
ORAL ARGUMENT OP HON. EDWARD J. PHELPS. 215 
 
 Dating cruelty, barbarity, constitutes all the malice that is necessary. 
 There is express malice, and there is implied malice. Like many other 
 terms it has a broad acceptation, and the legal acceptation is not 
 necessarily always the popular acceptation. I care not to add this 
 element of malice — it is not my argument — ^it is not the ground that I 
 have put this case upon. I say, if that is malicious, this is; and in the 
 sense that is, undoubtedly this is. Now take the suggestion made in 
 the course of this argument by Senator Morgan. Suppose instead of 
 cruising about the sea generally, giving these animals what they please 
 to call a "sporting chance" — suppose these sealers were to establish a 
 cordon of vessels just outside of the 3 mile line, and take every seal 
 that came out in the very first season, and bring the whole business to 
 an end: Is that malicious'? If this pursuit is not malicious, is that? 
 Why, if in that case, not in this? 
 
 They say: "We have no malice toward the United States people. 
 We are after the skins of the seals, and we are making this, profitable" ; 
 and they would be making it profitable. There is, no doubt at all that 
 any fleet that would go and surround these islands so closely, if the 
 fleet was all owned by one party — I mean by one sealers' association — 
 as to get all the seals the very first year, old and young, male and 
 female, it would be profitable. Is that malicious ? It is no more mali- 
 cious than the killing of the seals, as now. It is no more extermination 
 than it is if they kill them in the way they are doing now. Extermina- 
 tion is extermination, whether you exterminate them all at once, or 
 whether you exterminate them in a period that runs over three or four 
 years. We shall see, from the history of all the resorts that these seals 
 ever had, how long the process of extermination takes. Now, I enquire 
 is it any less extermination, because it is spread over three or four 
 years than if it was spread over three or four months? Is it any more 
 malicious when it is done for gain in three or four months than when it 
 is done for gain in three or four years? 
 
 When you come to look at the cases that have existed before, we find 
 they are every one met by the prompt exercise, by the Government 
 affected, of this right of self defence; and we know perfectly well that 
 there is not a country in this world, that has any of this marine or 
 semi-marine property which is the foundation of an industry upon its 
 shores — except the United States, that would permit foreigners to go 
 there and participate in it unless under the Eegulations which are 
 established for it. But is there another country that would permit 
 this extermination, even though not accompanied by circumstances of 
 particular inhumanity or barbarity? 
 
 We have cited. Sir, quite a number of cases in the argument, which 
 at this late stage I shall take no time to remark upon — I merely advert 
 to them in support of a corollary of this general proposition, as I have 
 confined what I have said on the right of self defence to the high 
 seas. 
 
 We have assembled instances enough, and cases enough, to show 
 that the right of defence extends likewise to the territory of friendly 
 nations if it is a necessity. Take the case of the "Caroline" in which 
 Great Britain came to the Niagara Eiver, entered a port of the United 
 States (a nation with whom they were at peace, and where the law was 
 in full effect), took a vessel out, burnt it, and ran it over the Palls. 
 There again the question of the necessity became the debatable ques- 
 tion. It is not easy for me to see that it was necessary — any more 
 necessary than it is always necessary for a nation that is at war, or has 
 a rebellion, to pursue its enemy into foreign ports. But the debate 
 
216 OEAL ARGUMENT OF HON. EDWABD J. PHELPS. 
 
 that ensued between Mr. Webster and the English Government on that 
 subject is set forth, and there again the law that the British G-overn- 
 ment invoked was conceded if the act was necessary to their defence in 
 what I could hardly call war — it was a little insignificant rebellion 
 that came to nothing — ^that might almost have been put down by the 
 police. But whatever you call it, if it was necessary to do this act, 
 their right to invade even the friendly territory of the United States 
 was conceded. The same in regard to these Mexican cases — the Amelia 
 Island case — several of those cases cited in our printed argument — 
 where the Government of the United States asserted a right to go over 
 into foreign territory and break up nests of criminals — of marauders — 
 which the country had failed to do either because it was not strong 
 enough, or probably because it was not active enough. In the diplo- 
 matic correspondence that ensued the right to do that was not only 
 asserted, but was conceded, and no satisfaction ever was made or 
 demanded. I might say on that subject of the "Caroline" case before 
 leaving it, that the only outcome was the indictment of the British cap- 
 tain. Captain McLeod, who commanded that expedition, went into the 
 American port and cut out the vessel, and in doing so a person was 
 killed on American soil. He was arrested and brought to trial in the 
 United States Circuit Court, and he was acquitted. He was tried before 
 a very able Judge, and I have never heard the propriety of that acquittal 
 doubted. Of course he had commanded an expedition that had killed 
 a man, and there was no war between his country and that to which 
 this person belonged or where the offence was committed; but he was 
 acting under the orders of his Government, and the Government was 
 acting under the justification of what they claimed to be a necessity; 
 and if that necessity did not exist, that was a matter that must be dis- 
 cussed between the nations, and for which this officer could not be 
 made responsible; and therefore his acquittal not only took place, but, 
 so far as I know, it has always been agreed it was a proper acquittal. 
 I am well warranted in saying that If the jury had been so far carried 
 away by popular excitement as to have convicted that man under the 
 circumstances, and if the learned Court before whom he was arraigned 
 had approved the conviction and afSrmed it, the United States Govern- 
 ment would have interposed and pardoned him upon the grounds I 
 have stated. 
 
 I do not refer specially to what my learned friends have said about 
 these various cases, because they do not touch the only point upon 
 which they stand, the exercise of self-defence. I take leave of the 
 general proposition in support of which this evidence is advanced, as 
 well as for its uses upon other branches and topics of the case, by 
 repeating that it presents to my mind the crucial, the final, the deter- 
 minative enquiry on this subject of the freedom of the sea : whether or 
 not conduct of that character, and with those consequences, is conduct 
 to which a nation must submit at the instance of individuals, or against 
 which it has a right of reasonable protection? The means by which 
 that protection is to be enforced is a question not addressed to this 
 Tribunal at all. You are not asked to say by what means any right 
 which the United States Government have here, shaU be enforced. If 
 regulations, which stand upon no right — which are the result of the 
 concurrent agreement of the nations — if those are adopted, then, of 
 course, means must be adopted as a part of the regulations by which 
 they can be carried into effect; because if the regulations are not ai 
 matter of right, then the enforcement of them would not be a matter 
 of right, except so far as the agreement on which they were founded gave 
 
ORAL ARGUMENT OF HON. EDWARD J. PHELPS. 217 
 
 the rigLt. In other words, the right to enforce them would stand upon 
 the agreement, as the agreement would stand upon the award; but if 
 the judgment of the Tribunal should be that this right of protection of 
 its property, of its interest, of all that it has there, resides in the United 
 States, my friend has well said, there is no question about the enforce- 
 ment of that right. In the first place, because the question is not sub- 
 mitted to the Tribunal. In the second place, because Great Britain 
 h,as agreed in this Treaty to abide by and enforce the award; and it is 
 not to be assumed for a moment that that country would fail to observe 
 its agreement in that respect. Furthermore, suppose it did not — if I 
 am at liberty to state a supposition, the very statement of which might 
 otherwise be regarded as injurious, the right being declared it is sup- 
 posed and presumed either that, if it is not acceded to, the nation which 
 possesses the right knows how (in accordance with the usuage of 
 nations), to enforce it; and if, in attempting to enforce it should over- 
 step the limit of necessity and propriety, the country that is injured, on 
 the other hand, by that excess would know how to obtain redress. 
 That whole subject about which my learned friends have had so many 
 alarming prognostications, about the right of search, the right of this, 
 and the right of that, raises questions, which I respectfully say, as far 
 as regards this claim of right, the Tribunal has nothing at all to do 
 with. 
 
 Now to come. Sir, as fast as I can to the particular facts that belong 
 to the application of this obvious and universal rule to this case. I 
 have assumed what I have said to be true. I have asserted those con- 
 ditions in trying to ascertain what the rule of law was — I have asserted 
 the conditions that are necessary to make the rule applicable. It is 
 one thing to establish a rule as an abstract one upon a hypothetical 
 case; it is quite another thing to apply that rule to the particular case 
 by proving that the conditions on which the rule rests are germain and 
 belong to the case under consideration. 
 
 Let me clear away two or three points that are brief. In the first place 
 this is a national interest— an interest that belongs to the Government 
 of the United States as a government, and not to its people, except so 
 far as some of its citizens may enter into a contract with the Govern- 
 ment to engage in it. The islands were purchased from Eussia. By 
 an Act of Congress they are set apart for the home of this herd of 
 seals. They are neither sold as the Government lands are generally 
 ■ sold, nor are they made open to entry of settlers, as lands have been 
 largely opened in the United States, under certain conditions. They 
 are reserved. Acts of Congress have been passed which my friend took 
 the trouble to go through and to point out to the Tribunal — a series of 
 Acts of Congress for the protection of the industry; for allowing Super- 
 intendents and ofiflcers appointed by the Government and paid by the 
 Government to reside there; making the killing of female seals crimi- 
 nal, or the killing of any seals by fire-arms; restricting the number 
 which the lessees of the Government might take; empowering the 
 Secretary of the Treasury from time to time to reduce that number as 
 far as the interests of the preservation of the herd might require: fix- 
 ing a Revenue for the Government derived out of the proceeds of the 
 industry, directly or indirectly, which is quite large. The Revenue 
 derived by the Government under the normal condition of things under 
 the present leases and present arrangements, is a million and a quarter 
 dollars. What the lessees make out of it is made by prosecuting the 
 industry as other employ(§s do; and what the poor Indians make out 
 of it, is a better subsistence than they have had before. 
 
218 ORAL ARGUMENT OF HOK. EDWARD J. PHELPS. 
 
 And now it is said, in the vast variety of things not material that 
 have been said, that this does not amount to much. It amounts to all 
 that there is of this case. It is the case which the Treaty submits, 
 whether it is great or small. It has the importance that I have stated. 
 It is quite of as much importance to the United States, to which it is a 
 prominent industry, as it can be to these sealers, to whom it is a very 
 temporary and speculative industry. 
 
 It is said " the United States did not regard the seals particularly in 
 the purchase of the islands : They had their eye upon something else, 
 and the seal industry was unimportant". What else did they have 
 their eyes on? They have owned it now for 26 years. 
 
 The capacity of the American people to find out what profit there 
 is in any part of their possessions, and to pursue it, is not a quality 
 that is open to much doubt. What have they made out of Alaska yet? 
 If I had time to entertain the Tribunal, I should refer to a report of a 
 Governor who was sent there to govern Alaska, and who came out with 
 a report (which I have no doubt he was quite at leisure to write, for 
 he did not have much else to do), in which he undertook to demonstrate 
 the great resources of Alaska. And if one goes through it, it might be 
 imagined to have been written as a burlesque — he so completely fails 
 to make out, that, within sight of anybody that is now born, there is 
 anything there in particular except the fur-seal industry, that nothing 
 could add to the clearness of it. It is all there is, except a quarrel 
 with Great Britain — I hope it may never be a quarrel — but a dispute 
 with Great Britain about the boundary line. 
 
 I want to refer to a little evidence (and I shall not be long upon the 
 point) to shew that at the time of its purchase, while some rose-colored 
 views were entertained by Mr. Sumner which have never been realized 
 about its other resources — the things that may be discovered there — it is 
 very plain from Mr. Sumner's speech, as well as from other references, 
 not only that the fur-seal business was aU that was then tangible, but 
 that the purchase of Alaska itself was originally set on foot and brought 
 about and came to pass for the purpose of realizing the profits of this 
 business. It is not merely that it was considered and estimated in the 
 purchase — it was absolutely the foundation of the purchase. 
 
 Mr. Sumner, in his speech from which my friends quote, and which is 
 quite long, cites statistics on page 79 of the 1st volume of the Appendix 
 to the British Case. They are those I referred to yesterday. He then 
 says on page 81 : 
 
 The seal, amphibious, polygamous, and intelligent as the beayer, has always sup- 
 plied the largest multitude of furs to the Russian Company — 
 
 who, as we see, had the monopoly of it under Russia. It is stated in the 
 Case what the revenue of that Company was. 
 
 I read from Mr. Blaine's letter in page 266 of the first American 
 Appendix showing what the value of this had been to the Eussian 
 American Company. Mr. Blaine says: 
 
 Its affairs were kept secret for a long time, but are now accurately known. The 
 money advanced for the capital stock of the Company at its opening in 1799 amounted 
 to 1,238,746 roubles. 
 
 The gross sales of furs and skins by the Company at Kodiak and Canton from that 
 date up to 1820 amounted to 20,024,698 roubles. The net profit was 7,685,000 roubles 
 for the 21 years — over 620 per cent for the whole period, or nearly 30 per centner 
 annum. 
 
 Reviewing these facts, Bancroft, in his History of Alaska, a standard work of 
 exhaustive research, says : We find this powerful monopoly firmly established in the 
 favour of the Imperial Government, many nobles of high rank and several members 
 nf the Royal Family being among the stockholders. 
 
ORAL ARGUMENT OF HON. EDWARD J, PHELPS. 219 
 
 He cites those figures for a different purpose— a purpose for which I 
 referred to some of them yesterday — as shewing the extreme improba- 
 bility that Eussia would have thrown open to the world that monopoly 
 without being invited. That is down to 1820. But 47 years more 
 elapsed before the country was purchased by the Government of the 
 United States? From 1821 to 1841 the gross revenue was 61 millions 
 of roubles, of which the net profits were 8,500,000 roubles. From 1842 
 to 1862, five years before the cession, the gross revenue was 75,770,000 
 roubles, and the net profits were 10,210,000 rou|3les. It thus appears 
 that the profits were not only enormous, the dividends enormous, but 
 that it appreciated all the way through down to a time within five years 
 of the purchase; under the first lease the stockholders made 30 per cent 
 per annum profit, under the second lease 55 per cent per annum; under 
 the third lease 45 per cent per annum. I was incorrect in saying it 
 appreciated all the time. 
 
 The President. — Was that gross profit, or net? 
 
 Mr. Phelps. — Net profit. 
 
 The President. — After having paid the Government dues? 
 
 Mr. Phelps. — Yes. That is the business we purchased; and as I 
 said when you contrast it with everything else we have ever done there 
 since, with all the resources and ingenuity and enterprise of American 
 people, there is nothing at' all. 
 
 I have said (and this is all I desire to call attention to; I cannot 
 dwell too long upon this), the way that it came to pass that the Ameri- 
 can Government bought this, was by an enterprise set on foot by certain 
 Americans to have the Government acquire it for the sake of getting 
 an interest in this important business. Perhaps, Sir, as the last words 
 before the adjournment, and as I shall not read much, I may read this 
 from the 1st volume of the Appendix to the British case, page 49. 
 
 Shortly afterwards 
 
 speaking of a memorial to the President which was referred to the 
 Secretary of State, by whom it was communicated to M. de Stceckl, 
 with remarks on the subject: 
 
 Shortly aftervrards another influence was felt. Mr. Cole, who had been recently 
 elected to the Senate from California, acting in behalf of certain persons in that 
 State, sought to obtain from the Russian Government a license or franchise to gather 
 furs in a portion of its American possessions. 
 
 Mr. Cole evidently was not aware that he had taken aU these furs 
 without any license. 
 
 The Charter of the Russian-American Company was about to expire. This Com- 
 pany had already underlet to the Hudson Bay Company all its franchise on the 
 mainland between 54° 40' and Mount-St-Elias ; and now it was proposed that an 
 American Company, holding direct from the Russian Government, should be substi- 
 tuted for the latter. The mighty Hudson Bay Company, with its head-quarters in 
 London, was togive way to an American Company, with its head quarters in Califor- 
 nia. Among the letters on this subject addressed to Mr. Cole, and now before me, 
 is one dated at San-Francisco, the 10th AprU, 1866, in which this scheme is developed 
 as follows. 
 
 There is at the present time a good chance to organize a Fur Trading Company to 
 trade between the United States and the Russian possessions in America, and as the 
 Charter formerly granted to the Hudson Bay Company has expired this would be the 
 opportune moment to start in. 
 
 I should think that by a little management this Charter could, be obtained from 
 the Russian Government for ourselves, as I do not think they are very willing to 
 renew the Charter of the Hudson Bay Company, and I think they would give the 
 preference to an American Company, especially if the Company should pay to the ' 
 Russian Government 5 per cent, on Uie gross proceeds of their transactions, and also 
 
220 ORAL ARGUMENT OF HON. EDWARD J. PHELPS. 
 
 aid in civilizing and ameliorating the condition of the Indiana by employing mission- 
 aries, if required by the Russian Government. For the faithful performance of the 
 above we ask a Charter for the term of twenty-five years. 
 
 Senator Morgan. — "What is the date of that? 
 Mr. Phelps.— That is dated in 1866. 
 
 The PRBSiDENT.^It is from Mr. Sumner's speech I understand. 
 Mr. Phelps. — It is taken from Mr. Sumner's speech ; but the letter 
 that I referred to was the 10th April, 1866, and is cited by Mr. Sumner. 
 Then a little farther down there is this : 
 
 Another correspondent of Mr. Cole, under date of San Francisco, the 17th Sep- 
 tember, 1866, wrote as follows: 
 
 I have talked with a man who has been on the coast and in the trade for ten years 
 past, and he says it is much more valuable than I have supposed, and I think it 
 very important to obtain it if possible. 
 
 The Russian Minister at Washington, whom Mr. Cole saw repeatedly upon this 
 subject, was not authorized to act, and the latter, after conference with the Depart- 
 ment of State, was induced to address Mr. Clay, Minister of the United States at 
 St.-Petersburgh, who laid the application before the Rnsaian Government. This 
 was an important step. A letter from Mr. Clay, dated at St-Petersburgh as late as 
 the 1st February, 1867, makes the following revelation : 
 
 "The Russian Government has already ceded away its rights in Russian America 
 for a term of years, and the Riisso-American Company has also ceded the same to 
 the Hndson Bay Company. This lease expires in June next, and the President of 
 the Russo-Americau Company tells me that they have been in correspondence with 
 the Hudson Bay Company about a renewal of the le&se for another term of twenty- 
 five or thirty years. Until he receives a definite answer he cannot enter into nego- 
 tiations with you or your California Company. My opinion is that if he can get oflf 
 with the Hudson Bay Company he will do so, when we can make some arrangements 
 with the Russo-American Company." 
 
 Some time had elapsed since the original attempt of Mr. Gwin, also a Senator 
 from California, and it is probable that the Russian Government had obtained infor- 
 mation which enabled it to see its way more clearly. 
 
 He then proceeds to give, following on the same page, p. 50, the 
 history of that. It is not very long and I will read it: 
 
 It will be remembered that Prince Gortschatow had promised an inquiry, and 
 it is known that in 1861 Captain-Lieutenant Golowin, of the Russian Navy, made a 
 detailed Report on these possessions. Mr. Cole had the advantage of his prede- 
 cessor. There is reason to believe, also, that the administration of the Fur Com- 
 pany had not been entirely satisfactory, so that there were well-founded hesitations 
 with regard to the renewal of its franchise. Meanwhile, in October 1866, M. de 
 Stceckl, who had long been the Russian Minister at Washington, and enjoyed in a 
 high degree the confidence of our Government, returned home on a leave of absence, 
 promising his best exertions to promote good relations between the two countries. 
 
 As is suggested to me, he is the one to whom Mr. Cole first applied. 
 
 While he was in St-Petersburgh the applications from the United States were 
 under consideration; but the Russian Government was disinclined to any minor 
 arrangement of the character proposed. 
 
 That is to execute a lease to the American parties who wanted it. 
 
 Obviously something like a crisis was at hand with regard to these possessions. 
 The existing government was not adequate. The franchises granted there were 
 about to terminate. Something must be done. As Mr. de Stoeckl was leaving in 
 February to return to his post, the Archduke Constantino, the brother and chief 
 adviser of the Emperor, handed him a map with the lines in our Treaty marked 
 upon it, and told him he might treat for this cession. The Minister arrived in 
 Washington early in March. A negoclation was opened at once with our Govern- 
 ment. Final instructions were received by the Atlantic cable from St-Petersburgh 
 on the 29th March, and at 4 o'clock on the morning of the 30th March this important 
 Treaty was signed by Mr Seward on the part of the United States, and by M. de 
 Stoeckl on the part of Russia. 
 
 In the Treaty, as you will remember, the United States gave 7,200,000 
 dollars ; and the returns which they have received since that from their 
 purchase, are very much beyond, as you will see from the statement I 
 
ORAL ARGUMENT OF HON. EDWARD J. PHELPS. 221 
 
 made a little while ago, the original purchase price; this means that 
 the whole idea, and the whole negotiation which subsequently resulted 
 in the transfer of these islands to the United States, was started in 
 California by the party of Americans who first set out to get a contract 
 or charter or lease or something of that kind from the Eussian Com- 
 pany to enable them to take the profits of this industry; and pressing 
 that home to the Eussian Company, it finally ripened into a proposition 
 to cede the whole country to the United States, which was carried into 
 effect. Therefore the fur-seal industry was not only all that gave that 
 province any value then, or has given it any value since — it was the 
 main inducement and the real origin of the entire purchase. 
 
 [The Tribunal here adjourned for a short time.] 
 
 Mr. Phelps. — I cannot help saying, sir, although it does no good to 
 say it that I know of, that I feel very sensibly how wearisome and 
 fatiguing the prolongation of this discussion must be to gentlemen who 
 have been so long absorbed with it, who have listened to so much, and 
 who may well be supposed to be as tired of this business as I am, and 
 it is impossible that they could be more so. Still, there are facts in 
 this case that I am not at liberty to pass over; I should be glad to 
 consult the feelings of the Tribunal, and I should be glad to consult 
 my own: but I must deal with them to some extent, because they have 
 been the subject of several weeks animadversion on the other side, and 
 we do not feel that we are justified in leaving them without observation 
 and reply. 
 
 My learned friend desires me to say, sir, or suggested to me that I 
 should say that, in the figures which I addressed to you this morning 
 just before the adjournment showing the value of this business to the 
 Eussian American Company, the fur business there included all the 
 fur-bearing animals as well as fur-seals. That is quite true and I 
 cheerfully make the qualification, but it should be added that there 
 was certainly of late years very little of the furbearing industry except 
 the fur-seal, though at a very early period there were a good many 
 other animals. 
 
 Now, I want very briefly, having pointed out what this industry is 
 and who it belongs to, on the part of the United States Government 
 to ^notice who are the parties with whom we are contending? Who 
 are the pelagic sealers? Like so many other questions in this case, it 
 is easy to say that it is of no consequence, and perhaps it is a minor 
 point, but it has been of sufficient importance to be presented with 
 considerable force and effect by my learned friend, Mr. Eobinson. 
 We call this an International Arbitration ; and it is an International 
 Arbitration so far as the parties to it are concerned ? What is it in its 
 object and its eff'ect? Are we contending with Great Britain? Not at 
 all. We should have settled this in the very outset with Great Britain ; 
 and the business interests of Great Britain concerned in the preserva- 
 tion of this seal herd. There are 10,000 people there tTiat are engaged 
 in the manufacture of these furs. It is the head quarters for the sale 
 of the furs all over the world; the commerce of the country is largely 
 engaged in it. You have heard the remonstraaces against the destruc- 
 tion of the seal addressed by leading men engaged in this business 
 before this controversy arose — before the United States approached 
 it. Then what is our dispute with Great Britain ? When you come to 
 Canada, what quarrel have we with Canada, that great and abounding 
 Province, — perhaps the largest territory in the world under one Gov- 
 ernment, if you take its dimensions? What have we in dispute really 
 with our neighbour, — the Province of Canada, with whom it is not only 
 
222 ORAL ARGUMENT OF HON, EDWARD J. PHELPS. 
 
 our interest to be at peace, but the interest of mankind that we should 
 be at peace? Why, it is one place; one little town, Victoria, that is 
 concerned in this business. I do not see that the rest of Canada has 
 any interest in it. Here is a little knot of people in Victoria who have 
 gone into this business, — a casual, a speculative, a temporary business, 
 in which the investment is small, the business is small, the profits are 
 precarious, sometimes large but still precarious, as all such pursuits 
 must be, and which is inevitably, if we are right about its being destruc- 
 tive, temporary. 
 
 In the American case, page 284, there are a few words I wish to 
 read because the authority for them is given there: 
 
 Consul Myers, in a report to the State Department, gives the oconpation of 
 seventy-one owners of sealing vessels hailing from the port of Victoria. Of these 
 only fourteen may be said to be dependent on sealing, and twelve others who are 
 employed in maritime enterprises. The remainder are composed of individuals 
 engaged in various pursuits. Among the list may be found several public officials, 
 seven grocers, a druggist, an auctioneer, a farmer, three saloon keepers, a plasterer, 
 an insurance agent, two iron founders, three real estate agents, a carriage manufac- 
 turer, a tanner, two women, a machinist, and others of different pursuits. 
 
 That is the statement, and I refer the Tribunal to peruse, what I 
 cannot take time to peruse, the authority itself for this statement. 
 
 Lord Hannen. — I suppose those are the shareholders of the ships. 
 That is just the same thing which would happen in England. 
 
 Mr. Phelps. — I was not aware that it was incorporated. 
 
 Lord Hannen. — No, not at all, but they are the shareholders in the 
 ships. 
 
 Mr. Phelps. — Well, call them shareholders or what you please. 
 They are the owners of this investment. They are the persons who 
 either under the name of shareholders or something else are prose- 
 cuting what my learned friends call this industry. I say it is per- 
 fectly speculative. It is not a legitimate industry — it is speculative, 
 in which various persons tajie a hand as they would buy stock in a 
 railroad or a steamboat company, or buy a lottery ticket. In the light 
 of what I said this morning, of the principles that cover this subject, 
 I ask attention to the persons that are engaged in it. 
 
 Then the amount of the investment is gone into there. That is 
 shown in the same book. It is said in the Case — and nothing is said 
 for which authority is not cited : 
 
 It is very questionable, however, whether there is any real investment in Canada 
 in pelagic sealing. The vessels are all common vessels, the guns common guns, and 
 the boats common boats, which can all be used in some other industry, excepting, 
 perhaps, the old and unseaworthy vessels. . 
 
 But admitting the validity of the investment, it can be questioned whether those 
 embarking therein as a rule pay the expenses incurred out of the sum realized on 
 the catch. An examination of the table of sealing vessels and their respective 
 catches, as given by the Canadian Fishery Reports, shows that the number of seals 
 taken by a vessel varies to a great extent. Thus in 1889 several vessels took less 
 than three hundred seals each; one schooner, with a crew of twenty-nine men, took 
 but one hundred and sixty-four seals, while another, with a crew of twenty-two 
 men, took over three thousand. In 1890 the same variation may be seen. In 1889 
 the average selling price of skins in Victoria was $7.65. On the catch of one hun- 
 dred and sixty-four seals, therefore, the total received would be $1,254.60, of which 
 at least $400 would have to be paid to the hunters. 
 
 This is pursued through several pages further and I do not take up 
 your time to read it. I just ask attention to it. 
 
 Now, another thing appears and I cannot pass it without referring 
 to it ; and that is the extent, which would have come before you on the 
 claim of damages that was originally submitted in the British Case if 
 it was not withdrawn, to which these vessels are owned in whole and 
 
ORAL ARGUMENT OF HON. EDWARD J. PHELPS, 223 
 
 in part, by the persons I have stated, — and the extent to which they 
 are owned by Americans, who could not pursue this business lawfully, 
 so far as Behring Sea is concerned, at any rate, without being crimi- 
 nally liable and having, therefore, to get vessels registered in the 
 names of British subjects so that they can engage in this business. 
 
 This evidence was brought together in the United States Counter 
 Case in answer to the claim for damages. That was gone into, in order 
 to show that of the vessels for which the British Government demanded 
 compensation, a considerable share were owned by Americans and the 
 facts that are brought out in that I will briefly refer to. 
 
 The vessels that I refer to are the "Hornton", the "Grrace", the 
 "Anna Beck", and the "Dolphin", which are steam schooners; the 
 " Sayward", the "Caroline", the " Path Finder", the "Alfred Adams", 
 the "Black Diamond", and the "Lily". Those were in whole or in 
 part — ytou will find this referred to at page 130 of the Counter Case of 
 the United States — the property of citizens of the United States. 
 
 The steam schooners Thornton, Ch-aoe, Anna Beck, and Dolphin and one-lialf of the 
 schooner Sayward were owned by one Joseph Bosoowitz, a citizen of the United 
 States; that James Douglas Warren, in whose name the claim is made as to the 
 steam schooner Thornton, had no real interest therein, but that the same was 
 mortgaged to her full value to Joseph Boscowitz, who was in fact the real owner : 
 and that Thomas H. Cooper, in whose name the claims growing out of the seizures 
 of the schooner W.-P. Sayward and of the steam schooners Grace, Dolphin, and Anna 
 Beck are made, had in fact no interest therein and has in no respect been demnifled 
 or sustained loss by the seizures thereof, either as owner of these schooners and 
 steam schooners, their outfits, or their catches, the same being mortgaged to their 
 full Talue to Joseph Boscowitz, above referred to, and having been conveyed to 
 Thomas H. Cooper, without consideration, for the sole purpose of giving them a 
 registry as British vessels. 
 
 It is also insisted by the United States that the schooners Caroline and Pathfinder 
 were in fact at the time of the time of their seizure owned by one A. -J. Beohtel, 
 then a citizen of the United States, and that William Munsie and Frederick Came 
 in whose names the claims for damages growing out of the seizures of these schooners 
 are made, had in fact no interest in the schooners or their outfits and catches ; that 
 the schooners Alfred Adams, BlaoTc Diamond, and Lily, for the seizures of which 
 claims are made in the schedule, were in fact, at the time they were seized, owned 
 by one A. Frank, who was then a citizen of the United States ; that Gutman, in 
 whose name the schooner "Alfred Adams" was registered, was not the actual owner 
 of the schooner, her outfit — 
 
 The President. — ^Tou argue that only as a moral consideration. It 
 does not change the legal point of view. 
 
 Mr. Phelps. — It does not change the legal point of view as to the 
 general propositions that have been advanced, but it does, I respect- 
 fully submit, enter into the general character of this act, when it is 
 weighed, as a part of the freedom of the sea. 
 
 Senator Morgan. — Suppose the Government of Great Britain ex- 
 pressly authorized these things to be done by American citizens under 
 their law, would that be a moral consideration or legal consideration. 
 
 The President. — Here is no question of special authorization. It 
 is the natural operation of laws. 
 
 Senator Morgan. — It might weU be a case of special consideration, 
 or special authorization, as to be justified under the general law or 
 general relations between the two Governments. 
 
 Mr. Phelps.— These only relate to the seized vessels. We have 
 had no opportunity or occasion to enter into the details of those not 
 seized. The evidence in support of what I have read, which I do not 
 take time to refer to, is- cited at the pages I have read, and is all con- 
 tained in the Appendix, and it c6mpletely supports what is said about 
 those vessels. It has been asked by my learned friend why the United 
 States have not prohibited the taking of these female seals or sealing 
 
224 ORAL ARGUMENT OF HON. EDWARD J. PHELPS. 
 
 at the improper time of the year in the North Pacific as well as in 
 Behring Sea. The reason is because it is impossible to go into a 
 parliamentary, or (Congressional Assembly and propose the passage of 
 a law that should exclude American citizens from the profits of pelagic 
 sealing so long as it was thrown open to the rest of the world. That 
 is the reason. 'So G-overnment could propose such a measure as that 
 with the expectation that it would be carried. Who would vote for 
 that ? If by voting for it you can preserve the seal from extermination 
 it is worth while, but to say that the seal shall be exterminated and 
 nobody shall participate in the' profit except a foreigner would be futile. 
 
 The President. — Is this a criticism in Parliamentary Government? 
 
 Mr. Phelps. — Well it is better than some criticisms; it is true. It 
 would be idle to propose it and it would be equally unjust. But Con- 
 gress, as soon as there was a prospect of the preservation of the seal 
 herd, passed a statute in 1892, an Act intitled an Act to extend to the 
 North Pacific Ocean the provisions of the Statute for the protection of 
 the fur seals and other fur-bearing animals. 
 
 Senator Morgan. — I hope you will put it on record. I have not a 
 copy of that. 
 
 Mr. Phelps. — It is very recent — just as we were coming here it was 
 passed through Congress, And now in order to seal in the North 
 Pacific as well as in the Behring Sea it will be necessary for that class 
 of American citizens who want to go into that business to get their 
 vessels registered in Canada, or sail under another ilag. 
 
 Senator Morgan. — I suppose it would be as well to say that Con- 
 gress was not aware until a recent period that citizens of the United 
 States were obstructing the policy of their own country by putting 
 their money under the British flag in order to seal on this herd. 
 
 Mr. Phelps. — The investigations that have been made in this case, 
 Sir, have thrown more light upon every branch and portion of this 
 subject than ever had been known before. 
 
 Now what is the consequence of all this? I have done with the 
 parties to it. We say it is extermination. What do they say on the 
 other side? What is the ground they take in respect to this great 
 underlying fact that what they call pelagic sealing is necessarily and 
 at no distant date a complete extermination. 
 
 That is our assertion. 
 
 What is theirs ? No Member of this Tribunal can undertake to state ; 
 it is not denied, but it is not conceded. It is talked about. They say 
 there are other reasons why the herd is being exterminated — that it is 
 the fault of the management of the Islands, all of which I shall come 
 to in due time if I go on with the discussion of this case. Aside from 
 any conduct good or bad, anything that may be expected from an 
 intelligent nation in the struggle to preserve this industry that belongs 
 to it — aside from all that, what do they say is the consequence of 
 pelagic sealing in and of itself ? 
 
 I repeat, no Member of this Tribunal can undertake to formulate the 
 proposition of the other side. They admit killing in the water to be 
 indiscriminate, and it must be — for nobody killing seals in the sea can 
 undertake to discriminate about sex or age. Unless they are very 
 young animals and very small there can be no discrimination. Well, 
 ibhen, what follows? If this trade were in its normal condition, half of 
 the seals to be found in the sea would be females — more than half prob- 
 ably, because, while everybody concedes that of those born into the 
 world half are male and half are female, it is not the normal condition 
 of any herd of polygamous animals that sm saany males survive as 
 
ORAL ARGUMENT OF HON. EDWARD J. PHELPS. 225 
 
 females. If they did, the coustant war would prevent the increase of 
 the herd at all, and ttierefore, if it were possible to take the census of 
 this herd as it was when Eussia discovered the Pribilof Islands where 
 fi'oui the time of the creation there had been no human interference 
 with sex, it would not have been found there were as many males as 
 females. Suppose there were in the sea as many females as males, so 
 that, indiscriminately shooting, 50 per cent of all that were killed 
 were females, I should like to know, in the light of common sense and 
 common experience and the knowledge that is derived from the prop- 
 agation of all animals of this class, what the result of that would be. 
 It is a mere question of speed. In the business of extermination, the 
 fewer females they kill, the longer they retard the result, but that it 
 comes is just as certain from a slaughter of half of the females, as it 
 would if they killed a greater number. But we do not stop there. 
 We do not concede that to be the case. We say that the evidence in 
 this case completely demonstrates that the proportion of all the seals 
 that are taken in pelagic sealing from one year to another is at least 
 85 per cent. It is taken at 75 per cent as a minimum, and it is stated 
 at 95 per cent and even higher than that in the specific evidence I will 
 call attention to, because this is a fact so important that it needs to be 
 exactly understood. The evidence that converges from various differ- 
 ent points, that are independent of each other, completely establishes 
 that of all this pelagic sealing, at least 85 per cent are females. 
 
 In the first place I want to call attention to what the American 
 Commissioners say. I have only one word to say about that report, 
 and any one who has read it through will not require that word to be 
 said, because it will have occurred to him. It is the work of a couple 
 of men whose authority and reputation as naturalists is not questioned. 
 We have no persons in America more competent to speak on this subject, 
 if they speak honestly, than they. A perusal of the report will show 
 whether it is or is not a partizan document, on one side of the case, 
 made for a purpose, or whether it is or is not a perfectly fair, candid, 
 truthful, and scientific treatment of the subject. It would not make it 
 so if it were not so, for me to assert that it was. It does not deprive 
 it of that quality to assert that it is not. I respectfully commend that 
 report, every word of it, to the perusal of the Tribunal, if it has not 
 already engaged their careful perusal, in view of the question whether 
 it is to be taken as fair and just, and I leave it without any eulogy or 
 observations of my own to that candid scrutiny. They give a table 
 which contains the approximate result of pelagic sealing and the note 
 states where they get their information from, which is the best they 
 could get. Then they say : 
 
 It cannot be denied that in pelagic sealing there can be no selective killing, as 
 far as individual seals are concerned, and only in a limited degree by restricting it 
 as to place and time. It necessarily follows that female seals must be killed and 
 seals whose skins owing to age and condition are much less desirable. As a matter 
 of fact, there is sufScient evidence to convince us that by far the greater part of 
 the seals taken at sea are females; indeed, we have yet to meet with any evidence 
 to the contrary. The statements of those who have had occasion to examine the 
 catch of pelagic sealers might be quoted to almost any extent to the effect that at 
 least eighty per cent of the seals thus taken are females. On one occasion we 
 examined a'pile of skins picked out at random, and which we have every reason to 
 believe was a part of a pelagic catch, and found them nearly all females. When the 
 sealers themselves are not influenced by the feeling that they are testifying against 
 their own interests they give similar testimony. The master of the sealing schooner 
 " J. G. Swan" declared that in the catch of 1890, when he secured several hundred 
 seals, the proportion of females to males was about four to one, and on one occasion 
 in a lot of sixty seals, as a matter of curiosity he counted the number of lemalea 
 with young, finding forty-sevea. 
 B S, P'4.' XV 15 
 
226 ORAL ARGUMENT OP HON. EDWARD J. PHELPS. 
 
 Ttiey pursue that subject, and I do not read by any means all they^ 
 say. How far that is undertaken to be contradicted on the specific 
 point what the proportion of the female seals killed is, by the British 
 Commissioners, I refer you to their Eeport to ascertain, in order to 
 see what they say on that subject, and to see which of these Eeports 
 is sustained and confirmed by the evidence in the Case, 
 
 (Mr. Phelps here reviewed all the evidence in the case on both sides 
 bearing upon the question of the slaughter of pregnant females on 
 their way to the islands. 
 
 On the first point he claimed that the evidence from all sources and 
 from many independent sources proved that of the seals killed on the 
 way to the islands from 85 to 90 per cent were females, a large propor- 
 tion of which were pregnant and about to be delivered immediately on 
 their arrival. In support of this he considered — 
 
 {a) The common understanding of naturalists and all concerned in 
 or familiar with the seal life, or who were led to investigate it before 
 this controversy arose in 1886, and referred to a letter to the British 
 Government written by Lampson & Co., the leading house in the fur 
 trade in London. 
 
 A despatch of Admiral Hotham of the British ISTavy to his Govern- 
 ment when commanding the Pacific Squadron. 
 
 Eeports of the British Columbia Inspector of Fisheries in 1886 and 
 1888. 
 
 Another letter from Messrs. Lampson to the British Government in 
 1888. 
 
 Mr. Bayard's letter to the American minister in 1888, laid before the 
 British Government, going fully into the facts and citing evidence. 
 
 A Review of the Fur-Seal Fisheries of the World, by Mr. Clark. 
 
 A memorandum from the Eussian minister to the British Govern- 
 ment in 1888. 
 
 A report of the Committee on Fisheries to the United States House 
 of Eepresentatives after an exhaustive investigation, in which a great 
 amount of evidence was taken. 
 
 A report of the Secretary of the Treasury of the United States in 
 1889 made to Congress. 
 
 A letter from Sir George Baden-Powell, afterwards one of the Brit- 
 ish Commissioners, written in 1889, published in the London Times. 
 
 A letter from Prof. F. Damon, the eminent English naturalist, pub- 
 lished in the London Times of December 3, 1889. 
 
 And other documents and publications to the same effect. 
 
 All which state the facts in regard to this question as they are 
 claimed by the United States, and enlarge upon their importance and 
 inevitable consequences. 
 
 And Mr. Phelps pointed out that until the creation of this arbitra- 
 tion these facts had never been questioned or denied. 
 
 (6) The testimony of British, French, and American dealers in and 
 manufacturers of fur-seal skins. Of these there were examined on 
 the part of the United States, thirty-one. Eight British, doing busi- 
 ness in London ; two French, trading in Paris ; nineteen American, resi- 
 dent in New York, in Albany, and in San Francisco. Among these 
 are the oldest and largest dealers in the world, and through their hands 
 pass all the seal skins taken from the Alaskan herd, and from that on 
 the Commander Islands. In the trade these skins are divided into 
 three classes: "Alaskan," embracing those taken on the Pribyloff 
 Islands; " Eussian," being those taken on the Commander Islands, and 
 " Northwest," which are those taken in the sea by what is known aa 
 
ORAL AEGUMENT OF HOK. EDWARD J. PHELPS. 227 
 
 "pelagic sealing." They uuiformly testify that the male and female 
 skins are eas-ily distinguishable; that the "Northwest" skins are in 
 large proportion females, and command consequently a lower price. 
 And the different witnesses state this proportion all the way from sev- 
 enty-five per cent, which is the lowest, to ninety per cent. Some of 
 them without giving a percentage in figures, say " mostly " or "mainly " 
 or " almost exclusively" females. 
 
 Several of the London witnesses have been reexamined on the part 
 of Great Britain, but do not modify their original statement on this 
 point. 
 
 IsTor is any other dealer or manufacturer of seal skins produced by 
 Great Britain to testify to the contrary. 
 
 (e) The evidence derived from an examination of all tlie sealing ves- 
 sels that have been seized, or were otherwise in a situation to have 
 their cargoes examined, after being engaged in pelagic sealing. This 
 evidence relates to the contents of twenty different vessels examined 
 at different times and places, and a large number of skins taken from 
 other seized sealers, not named, but examined at the Commander 
 Islands by the Eussian authorities. And the average result of all 
 these examinations was that the slain were eighty-eight per cent 
 females. 
 
 [d) The testimony of hunters and seamen actually engaged in pelagic 
 sealing. 
 
 Of these witnesses there are one hundred and thirty-six who testify 
 on behalf of the United States, made up as follows : 
 
 Of masters and mates of vessels, twenty-nine — five British and 
 twenty -four American ; officers of the United States Navy or Eevenue 
 Marine, four; officers resident on the islands, two;' seamen and hunters 
 able to write, forty-eight — nine British and thirty-nine American ; sea- 
 men and hunters illiterate, five British and nine American; Indian 
 hunters, thirty-one. These witnesses state the proportion of females 
 taken in pelagic sealing at various figures from seventy-five to ninety- 
 five per cent. Some of them who give no figures say "nearly all," 
 "mostly," "a large proportion," "the great majority," "principally" 
 females, or use other words of similar import. 
 
 The average of the proportion given by all the evidence of the 
 United States is: Of the British fur dealers, eighty -two per cent; of 
 the American, eighty-five and a half per cent; of the contents of 
 vessels examined, eighty-eight per cent; of the sealers and oflflcials, 
 eighty-three per cent. All the American evidence on this point was 
 printed as a part of the original Case of the United States, and was 
 therefore fully open to reply by British evidence. 
 
 The only testimony offered on the subject on the part of Great 
 Britain was the testimony of men engaged in the business of pelagic 
 sealing, brought forward in the Counter Case, so that no opportunity 
 to reply to it was afforded to the United States. 
 
 The witnesses thus produced number one hundred and twenty-two. 
 Of these fourteen fully supported the contention of the United States, 
 using such expressions as these to indicate the proportion of females in 
 the pelagic catch : "Four-fifths," "two-thirds," "three- fifths," "sixty- 
 five per cent," "eighty per cent," "chiefly female." One witness, Capt. 
 Lavender, states it thu s : " Over one- third females ; nearest the islands, 
 mostly females." 
 
 Twenty- two other witnesses, including five captains of Canadian ves- 
 sels, state the percentage of females as "more than half," without say- 
 ing how much more. They were not pressed to be more specific by the 
 
228 ORAL ARGUMENT OF HON. EDWARD J. PHELPS. 
 
 agents of Great Britain, though the examination was ex parte, and it is 
 therefore fair to presume that if pressed further the replies would not 
 have been favorable to that side. Three Indians also testify in the 
 same terms, "more than half," and were not enquired of more specific- 
 ally. Forty-five other witnesses in stating the proportion say: "Half," 
 "about half," "a little more than half." 
 
 The remaining thirty-eight witnesses testify that the large propor- 
 tion, or the larger proportion, of the pelagic catch consists olmale seals.) 
 
 [The Tribunal thereupon adjourned till Thursday the 6th July 1893 
 at 11.30 a. m.] 
 
FIFTY-FIRST DAY, JULY 6™, 1893. 
 
 Mr. Phelps. — 'Hear the close of tlie argument yesterday, Mr. Presi- 
 dent, you put to me a question in respect to the point I was discussing 
 in bringing forward the evidence to show the very great percentage of 
 females that were embraced in the pelagic catch, — whether or not that 
 might be attributed to the fact that there were so few, comparatively, 
 of young males; in other words, whether this great preponderance was 
 a preponderance of the females or a scarcity of the males. 
 
 I propose to answer that question this morning very briefly, and I 
 think very effectively by referring to certain testimony in the case, 
 which shows that this great preponderance of females in the pelagic 
 catch was just as noticeable years ago when pelagic sealing first began 
 as it is at the present day after the effects of it, and the effects of any- 
 thing else in the management of the Islands, have transpired. In the 
 year of 1868, when pelagic sealing first began, Mr. Fraser, of the firm 
 of Lampson and Company in London, in his deposition which is in the 
 2nd Volume of the United States Appendix, page 557, from which this 
 is an extract, says : 
 
 This fact, tliat the north west skins are so largely the skins of females, is further 
 evidenced by the fact that in many of the early sales of such skins they are classi- 
 fied in Deponent's books as the skins of females. 
 
 It was so noticeable in 1868 and afterwards, according to his deposi- 
 tion, that the whole catch was put down in the book as females. Mr, 
 Mclntyre, the special Agent of the United States, whose evidence is 
 prominently in the case on many points in his Official Eeport to the 
 Government in 1869 and which will be found in the United States 
 Counter Case, page 84, uses this language in support of this supposi- 
 tion — * 
 
 That nearly all the 5,000 seals annually caught on the Brltislj Columbian coast 
 are pregnant females taken in the waters about the 1st of June, while apparently 
 proceeding northward to the Pribilof Group. 
 
 Then Captain Bryant, a witness on whose testimony they rely on the 
 other side on several points, as we rely upon it, is also quoted in the 
 United States Counter Case at page 84, when writing of the year 1870 
 says ; 
 
 Formerly in March and April the natives of Puget Sound took large numbers of 
 pregnant females. 
 
 In August 1886, Eear-Admiral Culme Seymour of the British ^avy, 
 addressing the Admiralty — this will be found in the Appendix to Great 
 Britain's Case, vol. 3, United States, No. 2, 1890, page 1 — says : 
 
 The British Columbian seal schooners seized [by] United States Eevenue cruizer 
 Corwin, Behring Straits, seaward 70 miles from off the land [? in the execution of] 
 killing female seals, and using fire-arms to do it, which they have done for three 
 years without interference, although in company with Corwin. 
 
 22v 
 
230 ORAL ARGUMENT OP HON. EDWARD J. PHELPS. 
 
 The same year Mr. Mowat, the Inspector of the Fisheries of Canada, 
 British Columbia — and tliis is takenfrom tlie 3rd volume of the Appen- 
 dix to the British Case, page 173, — reports: 
 
 There were killed this year so far from 40,000 to 50,000 fur-seals wMph have been 
 taken by schooners from San Francisco and Victoria. The greater number were 
 killed in Behriug Sea, and were nearly all cows or female seals. 
 
 In 1892, Captain Shepard of the United States Revenue Marine — 
 and this is taken from the 2nd volume of tlie United States Appendix, 
 page 189 — says in his depositions: 
 
 I examined skins from the sealing vessels seized in 1887 and 1889, over 12,000 skins, 
 and of these at least two thirds or three-fourths were the skins of females. 
 
 This is selected evidence out of much more to the same effect. It 
 comes from men of the highest standing and position, in the majority of 
 cases British, and in the majority of cases ofl&cial; and if this is true, it 
 becomes apparent that the proportion of females taken in the pelagic 
 catch in these years before any of the causes that are suggested by my 
 learned friends for the diminution in the number of males had at all 
 taken effect. These observations are in reply to your very pertinent 
 and proper question which I was very glad to have put. They form 
 my reply, and when I come to deal with that part of the case, we shall 
 utterly and completely refute upon the evidence in the Case the sug- 
 gestion that any such consequence came from any mismanagement of 
 the Islands. We shall show to begin with that it depends on nothing 
 that is reliable, and shall show, in the next place that it is over-whelm- 
 in gly contradicted by the evidence. 
 
 But still dealing for a inoment longer with the President's enquiry, 
 the pelagic sealing near the Eussian Islands is a new business. The 
 Islands never have been harrassed by pelagic sealing before. How 
 new it is will be apparent at a future stage of this case, when we come 
 to consider how much the Russians have made out of the zone they 
 have exacted from Great Britain where the seals are taken now. I 
 only say now that this was sealing where no pretence had ever arisen 
 of a scarcity of males, or of any cause which could produce a scarcity 
 of .males, and yet, on these vessels, the average of females taken in 
 the pelagic catch by these schooners comes fully up to this. 
 
 The Pkesident. — Is there not an explanation to be made as to sea- 
 sons and places of the catches in connexion with the sexes? 
 
 Mr. Phelps. — N'o, I shall show you, when we come to Regulations, 
 where the seals are taken. 
 
 The President. — But we are told that the females went in a herd 
 together separate from the bulls and even from the young ones, and 
 passed through certain places at certain seasons, and consequently 
 were not at other places in the same seasons or not at those places at 
 other seasons. 
 
 Mr. Phelps. — For this reason, if we confined our evidence to par- 
 ticular times or particular ships, it would be open to the inference that 
 possibly those ships were to some extent exceptional. Our evidence 
 goes to the entire pelagic sealing — all that takes place at any period 
 when the weather allows, and goes to show that the percentage of female 
 seals principally pregnant, while the herd are on their way to the Island, 
 is the same percentage of nursing females after they get to Behring Sea. 
 The evidence covers the whole business, every month in the year in 
 which it takes place; it covers all vessels engaged in it, as far as we 
 can reach them, and all places in which seals are taken in the sea in the 
 whole year. 
 
ORAL ARGUMENT OF HON. EDWARD J. PHELPS. 231 
 
 I caiiDot stop to criticise the British evidence particulary, or to go 
 through the evideace of each of these -witnesses to show the explana- 
 tion that might be found in the testimony consistent with truth. They 
 are sealers, of course, swearing on behalf of their own craft. Their 
 testimony is necessarily ex parte, as all the evidence is. It is taken in 
 such a way that we cannot reply to it, or explain it in any way. But 
 let it stand without any criticism at all as the testimony of 38 hunters 
 and sealers who come here and tell you the greater proportion of pelagic 
 sealing is males, if that is the real purport of their evidence, — it will be 
 seen in many cases they are referring to particular voyages and par- 
 ticular ships, — these 38 nren constitute all the evidence there is in this 
 case, giving them their utmost effect, as against the mass of evidence ' 
 from all sources that we have brought to bear, from these numerous 
 British witnesses who swear the other way, the British subjects 
 examined by us who swear the other way, and the array of officers, 
 officials, hunters and seamen, four times as many, in addition to the con- 
 clusive evidence of the furriers, and the equally conclusive evidence 
 afforded by the vessels that were searched. 
 
 Here is a question of fact that must be decided upon the evidence. 
 There is no other way to decide it. Members of the Tribunal know 
 nothing about it except what they derive from the evidence. I have 
 fairly laid before you, for I have had my own calculations carefully 
 revised, and 1 speak with confidence about their accuracy, the result 
 'of the evidence on this point. To find against the contention of the 
 United States, you must take this scattered array of witnesses I have 
 alluded to, and which is open to all sorts of criticism, if I had time to 
 make it, as showing to what period and occasion their evidence alludes, 
 and balance that against the whole mass of the testimony. 
 
 One remark more. The least reflection will show that our calculation 
 must be true. They are killing seals at sea, where they cannot dis- 
 criminate and do not attempt to. In the normal condition of the herd 
 there would be at least as many females as males, as I remarked yester- 
 day, probably more. Ever since 1847, when the system of discriminat- 
 ing killing was introduced by Kussia on these islands, they have been 
 making this considerable draft of young males on the islands. What 
 must then be the greater proportion of seals in the sea in these later 
 years after all that period. We have some tables tbat, in another con- 
 nection, where they more i)roperly belong, I shall lay before you, in 
 which we have made the general observation that 1 have just made the 
 basis of an actual calculation. I dismiss that subject for the present. 
 
 Now to come to another point which I propose to treat in the same 
 way and to get over as rapidly as possible. 1 have spoken of the pro- 
 portion of females. ifTow what proportion of the females in the Spring 
 catch, in the Pacific Ocean catch — not now referring to Behring Sea — 
 what proportion of them are actually pregnant when they are taken. 
 
 This is not a very important question for this reason. The destruc- 
 tion of a female affects the herd not so much by the young she is about 
 to produce that year — that can only be one — it is the future production 
 of the animal going on in a geometrical progression that is so destruc- 
 tive. It is of no consequence to say that the female that was killed this 
 year was not pregnant. What if she was not? Is she not going to be 
 pregnant in all the successive years of her available life hereafter. 
 
 Mr. Justice Haelan. — And that is increased if the pup that is killed 
 is a female also. 
 
 Mr. Phelps. — Yes, I have made that the subject of calculation. I 
 have said that it is a question of geometrical progression; if a female 
 
232 ORAL ARGUMENT OF HON. EDWARD J. PHELPS. 
 
 is killed who would have had 8 or 10 pups, or whatever the number may 
 be, according to her age, half of those would be females, and of that 
 half that are females the same ratio of progression would go on if 
 they survived to become productive themselves. As 1 suggest, it is a 
 great deal worse for the herd, not speaking of humanity, to kill a young 
 female that is not pregnant than it is to kill an old female that is actu- 
 ally pregnant. They destroy more young ones in one case than in the 
 other. It is only the inhumanity that distinguishes it. They may kill 
 a pregnant female that never would have another pup, or more than 
 one or two, or they may kill a young female with her whole life before 
 her, that would have 10, 12, or 14. But still this point is made, and I 
 "do not mean to pass over any issue of fact that has been made, because 
 one thing I claim to be perfectly clear, whatever the decision of the 
 Tribunal may be in respect of this case in any of its points or in any 
 of its results, that there is not an allegation of fact which the Govern- 
 ment of the United States have put forward in their case — not one — 
 that is not perfectly demonstrated to be true by the evidence. 
 
 HiTow, on the subject of pregnant females, it is conceded that the period 
 of gestation is 11 to 12 months, undoubtedly 12 lunar months; because 
 that is the analogy with other such animals. The witnesses speak 
 of it as being 11 to 12 months; and I suppose that it is; and also that 
 the young are all born in June. The testimony agrees about that with 
 a very few exceptions, — some witnesses say in the very early July; they 
 are born at the latest in June and the early July. There is no proof 
 of any young coming into the world on these Islands, and certainly not 
 anywhere else later than that. I am reminded that is the British Com- 
 missioners' figure, — from the 15th of June to the 15th of July, but, really, 
 there is no divergence of testimony on that subject. 
 
 Then, all the pregnant females that are in the herd are necessarily 
 on their way, through the sea; and they are exposedj how much 
 exposed we shall point out. Of course, without any evidence you 
 would see that there must be a large number pregnant. Of course also, 
 the proper proportion of the females who are 2 years of age only, or 
 yearlings, and are not pregnant, as they do not produce young until the 
 third year, — in the loose statements that some witnesses have made 
 about barren females, are included; but the evidence on this subject is 
 this ; and from general considerations we show, before you look at the 
 evidence, what the evidence must bo if it is true. The United States 
 have examined Kevenue OfBcers, sea captains and fur-dealers, and I 
 mean by that fur-dealers who are there and know the facts personally. 
 This does not come from the examination of the London far-dealers, 
 but from fur- dealers on the Pacific Coast who know the business. 
 Aside from that, we have examined 7 Captains, Captain Cantwell, 
 Captain Shephard, Captain Scammon, Captain Douglass, Captain 
 Hays, Liebs, the fur-dealer, and a Missionary of the name of Duncan. 
 These witnesses say "75 percent;" "95 per cent j" "a majority of all;" 
 "nearly all of catch;" 95 per cent of all;" "nearly all of catch;" 
 "nearly all of catch;" are pregnant females. We have examined of 
 Sealing Captains, Mates and Owners, following the same qualification, 
 and putting those by themselves who can write as somewhat superior 
 to the common men, 25; 4 of these are British subjects and 21 Amer- 
 ican. The testimony of these 25 men is this; "the greater number;" 
 "90 per cent;" "99 percent;" "75 per cent of all;" "the majority;" 
 "most;" "all;" "85 per cent;" "nearly all of catch;" "75 to 80 of all:" 
 "all of catch;" "four-fifths of the cows;" "nearly all;" "mostly all,"— 
 a repetition of those words or of exactly the same significance, stating 
 
OEAL AEGUMENT OF HON. EDWARD J. PHELPS. 233 
 
 it from tke lowest " 75" np to several witnesses who say '< all," wliicli 
 is probably rather a strong, though perhaps natural statement of wit- 
 nesses who do not attempt to be particularly critical. 
 
 Then we have examined hunters and seamen, not officers of vessels, 
 62:21 of them are British subjects, and 41 American subjects, and the 
 languageof those witnesses is just the same. It would be a repetition for 
 me to read down these two or three column s. The lowest that is stated, 
 I believe — I think some few of these witnesses say — is 60 per cent. 
 They are very few. Most of them use these expressions that I have 
 read: "Most"; "a large majority": "mostly all"; "two-thirds"; 
 "nearly all"; "almost exclusively";' "most of the females"; "the 
 majority " ; and to the same effect. I think there is not a witness, except 
 two or three that speak of 75 per cent, who falls short of that. That, 
 you see, shows how it came to pass that Mr. Lampson in keeping his 
 books classified these as female skins, because the exceptions were too 
 small to take account of. Then we have examined Indian hunters and 
 Indians, but not the less truthful on that account. They have not 
 acquired yet all the virtues of civilization, and their testimony is to the 
 same effect. There are of these witnesses 74, and I have given here 
 the names and pages on which their testimony is found, and the point 
 or substance of their testimony. It is an exact repetition of what I 
 have already said. There are a few of these witnesses that say "about 
 a half", and they do not go as far as the others. "About a half" ; " fully 
 a half"; " one half". There are a small number who say that, and the 
 great majority use the stronger language that I have given. I find a 
 more specific recaijitulation than that. 28 of these witnesses say " one 
 half"; "about a half"; "nearly a half"; "a little over a half ". Two 
 say "less than half"; and one of them says "a third"; and one says 
 "three out of ten"; which, of course, would be less than a third. All 
 the others say what they do say in the language I have referred to. 
 
 Now what is the British evidence on this point? They have exam- 
 ined apparently a large body of men — I should say really a large body 
 of men. There are 25 of their witnesses who sustain the United States 
 Case, who use the same language that our witnesses do; — "the greater 
 number", "most of the females", "about two-thirds", "most of the 
 females", "three out of five", "about two-thirds", "females for the 
 most part ", " cows for the most part ". Then one says : " 75 per cent ", 
 "four out of six", "two out of three". One says he did not get any 
 this year that had no pups. "I do not remember having got an old 
 cow that had no milk: one hunter says, I never saw an old cow along 
 coast without pups ", and so on. I do not read it all. There are thus 
 25 British witnesses that cannot be distinguished in their testimony 
 from ours. Then there is another class of 14 of their witnesses who 
 are called to contradict our evidence, and they do not contradict it. 
 They do not specifically sustain it, but they do not contradict it. 
 They say, the proportion of pregnant females is " about half", " fully 
 half", "or not more than half". There are three more who use these 
 expressions — " many of the cows ", "a good many ", " quite a number ". 
 Then here are six witnesses in aU of this array of evidence on the 
 British side who testify affirmatively, that the number and pro])ortion 
 of pregnant cows in this catch was small — and they say " about 25 jier 
 cent", " about a quarter ", " in a total catch of 119 only 30 ", in a catch 
 of 202 only 65". These refer to particular catches. " Half I got this 
 year females, mostly young cows, only four or five". Then another 
 witness says, " out of 300 not more than 100 ". That was iu one catch. 
 Then one witness^an Indian, I judge, says " lots of them are old cows 
 
234 ORAL ARGUMENT OF HON. EDWARD J. PHELPS. 
 
 ■without pups". Then there are two others who decline to express an 
 opinion. One of them, a witness named Shatter, says, he cannot say 
 what proportion, and I find one added at the bottom to those 25 1 gave 
 before on the British side who support the American Case. There you 
 see where this evidence comes out. There is another class of witnesses 
 however, it is only right to say, in attempting to deal with the whole 
 of this evidence, in which this is put in another way, not how many, 
 not what proportion of the cows are pregnant, but what proportion of 
 barren females are found in the catch. As I have explained, that 
 means all who are not in a condition of pregnancy, who are not gravid. 
 
 Of these British witnesses, 8 testify to finding very few barren 
 females; they say, "2 out of 90"; " not noticeable " ; "not any"; "not 
 seen any"; have only seen few"; "they are generally two years old, 
 and travel with young seals"; and one witness gives the explanation 
 that he has seen a few older females that were barren, — " got a few 
 barren females this year"; "2outof 90 seals"; "a few barren females": 
 and another witness says, " We cannot tell in the sea whether the cow 
 is barren or not " ; and another " we always find a few barren females ". 
 
 Then there are 10 who testify to finding a great many barren females. 
 Ten of these sealers testify strongly the other way. In 64 seals " 20 or 
 25 "- Another says, " quite a number ". " By barren females, I mean 
 one that has no young ". Then by another witness, " a good many 
 barren females this year"; " a great many"; " almost half barren; the 
 other half cows and pups ". Then, " Less than half, about a quarter ". 
 That is the evidence on this subject. 
 
 I next enquire what proportion of the females taken in Behring Sea 
 are nursing mothers, who have young upon the islands. 
 
 (Upon this point Mr. Phelps reviewed all the evidence upon both 
 sides. He pointed out that on the part of the United States had been 
 examined four officers and Government officials, eight captains, owners, 
 and mates of vessels engaged in the sealing business, thirty-six hunt- 
 ers and seamen, white men, and .nine Indian hunters engaged in the 
 same pursuit, fifty-nine witnesses in all. That the statement of those 
 among this number who attempted to give a numerical proportion of 
 nursing females killed, fixed it variously at from seventy-five to eighty 
 per cent of the whole Behring Sea catch. That the other witnesses 
 testified the nursing females formed " the large proportion," " nearly 
 all," " the greater part" of the catch, and other equivalent expressions, 
 except that three of them gave no opinion upoii this point, but only 
 stated the distances from the islands at which nursing seals were found. 
 
 He showed that the British Commissioners in their report stated that 
 no nursing females were killed in the early part of the season, and but 
 few later in the summer, but remarked that in this, as in every other 
 disputed fact in the case, without exception, the statement of the British 
 Commissioners was overwhelmingly refuted by the evidence. 
 
 He pointed out that upon this question there had been examined on 
 the part of Great Britain twelve captains of vessels, twenty -three hunt- 
 ers and sealers, and ten Indian hunters — forty-five witnesses in all; 
 that of these nineteen sustained the American contention that the 
 greater part of the Behring Sea catch were nursing females, using the 
 same language, as to the proportion, employed by the witnesses on the 
 American side; that fourteen of the others did not contradict the Amer- 
 ican witnesses, expressing no opinion upon the point and not being 
 pressed to express any, although their means of knowledge were ample; 
 and only eleven witnesses supported the British contention, stating that 
 the nursing mothers killed in the Behring Sea were "few," "very few," 
 
ORAL ARGUMENT OF HON. EDWARD J. PHELPS. 235 
 
 or J' none." So that irrespective of the American evidence, the great 
 weight of the British testimony went to establish the fact claimed by 
 the United States to be true and stated by the American Commis- 
 sioners. 
 
 He further remarked that from the nature of the case, upon the undis- 
 puted account of the habits of the seals, it could not be otherwise than 
 tbatthe greater part of the seals taken in the Behring Sea must be 
 nursing mothers, since, at the time when the catch in that sea was in 
 progress, very few other seals left the islands, and the mothers of the 
 pups just born were compelled to go out and did go out, sometimes to 
 long distances, for sustenance.) 
 
 Mr. Phelps proceeded: I pass on to another subject, the effect on 
 the young on the Islands of the death of these nursing mothers. We 
 have had the extraordinary suggestion made that the young may be 
 left without nourishment, and are going to live somehow or other, and 
 that the destruction of the mothers does not make any difference. — Per- 
 haps some other mother will nurse them — that is one theory. Another 
 is, that they do not need any nursing — that they come down to the 
 shore and forage on the sea-wrack, and so forth. But what is the evi- 
 dence? In tlie first place, the evidence on that subject of the great 
 number of dead pups that are found on the rookeries is not denied and 
 cannot be denied. I need not refer you again to it, because that is not 
 in dispute; but other reasons are given or attempted to be given for 
 the mortality. 
 
 It is said by my learned friends that there were no dead pups seen 
 on the rookery in any great numbers up to 1891, and they say if pelagic 
 sealing was destroying the nursing females in the previous years, how 
 comes it to pass that young were not found dead on the rookery till 
 1891? Then they say the mortality in 1891 was confined to St. Paul's 
 Island, one of the Pribiloffs, and did not extend to the other ; and to two 
 rookeries on that Island. Then they say that the mortality appeared 
 again in 1892 upon the same rookeries, although, under the modus 
 Vivendi, there was no sealing in Behring Sea to destroy the nursing- 
 mothers ; and they say that no unusual number of dead pups was seen 
 on the Commander Islands in 1892, notwithstanding that pelagic seal- 
 ing had begun there. 
 
 Now, all these propositions, if true, would constitute a complete and 
 conclusive answer to the charge that the pups starved to death by the 
 destruction of their mothers during the suckling period. In what 
 extraordinary manner Providence provided for their surviving would 
 still be left a matter of astonishment; but it would dispose of the fact 
 that death was owing to the destruction of mothers. 
 
 The difficulty with those propositions is that there is not one of them 
 that is true. They are assumptions not supported by evidence, and are 
 utterly disproved. 
 
 In the first place, as to the proposition that there were no dead pups 
 prior to 1891 seen on the rookery in any great numbers. That is their 
 proposition — there is no evidence to show it. 
 
 I will call attention to the testimony on this subject as rapidly as I 
 can ; not all of it — there is a great deal more. It will be found between 
 pages 466 and 481 of the Appendix to the American Argument — the 
 Collated Testimony. The full depositions are in all cases referred to in 
 the margin, so that by turning to the 2nd United States Appendix— 
 another book — you see the whole of the statements. There is a great 
 deal more testimony as I say between the pages I have mentioned. 
 
236 ORAL ARGUiMENT OP HON. EDWARD J. PHELPS. 
 
 Mr. Clark, who was four years on St. George, from 1884 to 1889, says : 
 
 Dead "pup" seals, wliicli seem to have starved to death, grew very numerous on 
 the rookeries these latter years; and I noticed ■when driving the bachelor seals for 
 killing, as we started them up from th« beach, that many small "pups", half starved, 
 apparently motherless, bad wandered away from the breeding grounds and became 
 mixed with the killable seals. The natives called my attention to these waifs, say- 
 ing that it did not use to be so, and that the mothers were dead, otherwise they 
 would be upon the breeding grounds. 
 
 Mr. Hansson, a sealer, was five years on St. Paul island — from, 1886 
 to 1891: I do not stop to give the page of these particular oues, — it is 
 all between the pages I have given, and I must save all the time I can. 
 Mr. Hansson says : 
 
 There were a good many dead pups on the rookeries every year I was on the island, 
 and they seemed to grow more numerous from year to year. There may not in fact, 
 have been more of them because rookeries were all the time growing smaller, and 
 the dead pups iu the latter years were more numerous in proportion to the live ones. 
 
 Mr. Mclntyre, whose name has become quite familiar to you, was on 
 the Islands from 1870 to 1882, and from 1886 to 1889. He says: 
 
 The seals wore apparently subject to no diseases; the pups were always fat and 
 healthy, and dead ones very rarely seen ou or about the rookeries prior to 1884. 
 Upon my return to the islands, in 1886, I was told by my assistants and the natives 
 that a very large number of pups had perished the preceding season, a part of them 
 dying upon the islands, and others being washed ashore all seeming to have starved 
 to death; the same thing occurred in 1886, and in each of the following years, to 
 and including 1889. Even before I left the islands in August 1886, 1887 and 1888, I 
 saw hundreds of half starved, bleating emaciated pups, wandering aimlessly about 
 in search of their dams, and presenting a most pitiable appearance. 
 
 Mr. Morgan, who was 13 years on St. George as the Agent of the 
 lessees from 1874 to 1887, says : 
 
 But facts came under my observation that soon led me to what I believe to be the 
 true cause of destruction. 
 
 For instance, during the period of my residence on St. George Island down to the 
 period of 1884, there were always a number of dead pups, the number of which I 
 cannot give exactly, as it varied from year to year, and was dependent upon acci- 
 dents or the destructiveness of storms. Young seals do not know how to swim fiom 
 birth, nor do they learn how for six weeks or two months after birth, and therefore 
 are at the mercy of the waves during stormy weather. But from the year 1884 down 
 to the period when I left St. George Island (1887) there was a marked increase in 
 the number of dead pup seals, amounting perhaps to a trebling of the number 
 observed in former years, so that I would estimate the number of dead pups in the 
 year 1887 at about five or seven thousand as a maximum. I also noticed during my 
 last two or three years among the number of dead pups an increase of at least 70 
 per cent, of those which were emaciated and poor, and in my judgment they died 
 from want of nourishment, their mothers having been killed while away from the 
 island feeding, because it is a fact that pups drowned or killed by accidents were 
 almost invariably fat. 
 
 Mr. Loud, Government Agent from 1885 to 1889, states the same 
 thing. He says: 
 
 I am unable to make a statement as to the number of dead pups on the rookeries 
 in that year, 
 
 That is 1885: 
 
 but in 1886 I saw a large number of dead pups lying about. These pups were 
 very much emaciated and evidently had been starved to death. . . In 1887 the 
 number of dead pups was nnich larger than in 1886. In 1888 there was a less number 
 than in 1887 or in 1889, owing, as I believe, to a decrease of seals killed in Behring 
 Sea that year, but in 1889 the increase again showed itself. I believe the number of 
 dead pups increased in about the same ratio as the number of seals taken in Behring 
 Sea by pelagic sealers. 
 
 Mr. Goff, who was Treasury Agent from 1889 to 1890, testifies in this 
 manner: 
 
OEAL ARGUMENT OF HON. EDWARD J. PHELPS. 237 
 
 Another fact I have gained from reliable sources is that the great majority of the 
 seals taken in the open sea are pregnant females or females in milk. It is an unques- 
 tionable fact that the killing of these females destroys the pups they are carrying or 
 nursing. The result is that this destruction of pups takes about equally from the 
 male and female increase of the herd, and wheu so many male pups are killed in 
 this manner, besides the 100,000 taken on the islands, it necessarily aftects the 
 number of killable seals. In 1889 this drain upon male life showed itself on the 
 islands, and this in my opinion accounts for the necessity of the lessees taking so 
 many young seals that year to fill out their quota. 
 
 Mr. Palmer is a witness introduced by the British Government. He 
 went with Mr. Loud. He is an ornithologist — a man employed in the 
 Smithsonian Institute to stuif birds. He says : 
 
 The greater number of the seals captured in the waters of Behring Sea are females 
 which are on their way to or have left their young on the rookeries while they are 
 seeking food. As it is a well-known fact that a mother seal will only suckle its own 
 young, and that the young seal is unable until it is several months old to procure 
 its own food, it necessarily obtains that the death of the pup follows that of its 
 mother in a short time. The numbers of dead pups about the shores of St. Paul's 
 began to attract my attention about the middle of July last year. 
 
 That was 1890: 
 
 On Aug. 2 I stood on Zoltoi Beach and counted 17 dead pups within teu feet of 
 me, and a line of them stretched the whole length of the beaoh. Many of them starve 
 to death on the rookeries, but by far the greater number sink in the deep water 
 along the margin of the rookeries. 
 
 Now in 1888 — (I have nearly done with this but I want to be done 
 with it effectually) — an examination, as you have learned was made by 
 a Congressional Committee at Washington, and the Iteport has been 
 put into this case; and from the testimony there given before that 
 Committee — (not for the purposes of this case) — we extract two or three 
 witnesses. 
 
 D"^ Mclntyre, whose testimony I have read before in this case, said : 
 
 And I would say further that if cows are killed late in the season, say in August 
 after the pups are born, the latter are left upon the islands deprived of the mother's 
 care, and of course perish. The effect is the same whether the cows are killed 
 before or after the pups are dropped. The young perish in either case. 
 
 Mr. Mclntyre's great familiarity with the subject, and the candid 
 manner in which he has testified, and his large experience, are already 
 known to you. 
 
 At page 255 of that Eeport, Mr. Moulton, the United States Treas- 
 ury Agent at the islands from 1877 to 1885 testifies as follows. He is 
 asked : 
 
 Q. When a female is nursing her young and goes out for food and is killed or 
 wounded, that results also in the death of her young? — A. Yes, sir. As her young 
 does not go into the water, it does not do anything for some time, and cannot swim 
 and has to be taught. 
 
 Mr. Tupper, my friend on the other side, knew that as early as 1888 
 the United States claimed that the pups died when the mother was 
 killed; because on page 443 of volume III of the Appendix to the 
 British case, referring to the testimony just quoted, he says: 
 
 The opinions of the gentlemen given before the Congressional Committee in 1888 
 for the most part, though sometimes contradictory, are in favour of the undermen- 
 tioned theories. 
 
 1. That the female seals while nursing their young go great distances in search of 
 food; 
 
 2. When out a great distance, female seals are shot, and the pups on shore are 
 lost for want of their mothers' care. 
 
 I shall read no more. The subject can be pursued upon the refer- 
 ence that I have given to the Collated Testimony, and the full testi- 
 
238 ORAL ARGUMENT OF HON. EDWARD J. PHELPS. 
 
 mony, of wliicli there is a great deal more. Now is there any testimony 
 to the contrary'? Is there any witness brought here to say: "I knew 
 those islands prior to 1891; in all those years there were no dead pups 
 there"? JSTot a witness! What brought my friends into the error of 
 saying, as they have said in the course of the argument, that this first 
 appearance of starved pups was in the year 1891? 
 
 Then they say, the mortality in 1891 was confined to St. Paul Island, 
 and to two of the rookeries on that island, namely Tolstoi and Pola- 
 vina. That when you come to 1891 instead of its being diffused all 
 over those islands, as the mothers from both were equally killed, it 
 is confined to two rookeries on one island. That again would be 
 extremely important, if it were true. The difQculty of that proposition 
 is that it is not supported by evidence and is overthrown by evidence. 
 
 I will allude, as briefly as I possibly can, to a few witnesses on that 
 point. Mr. Stanley Brown testifies in the United States Appendix, 
 Volume II, page 19 : 
 
 From a careful examination of every roohery upon the two islands made by me in 
 August and September (1891) I place the minimum estimate of the dead pups to be 
 15,000, and that some number between that and 30,000 would represent more nearly 
 a true statement of the facts. 
 
 Lieutenant Cantwell, of the United States Eevenue Marine, at page 
 408 of the same book, says : 
 
 During the month of September of that year (1891) in company with Mr. J. Stanley 
 Bro wn, I visited the Starry Arteel and Eastern rookeries on St. Gfeorge Islan ■" 
 
 — that is the island where they say the mortality did not reach— 
 
 and saw more than the average number of dead pups, and a great many dying pups, 
 evidently in very poor condition. 
 
 Captain Coulson of the Eevenue Marine, on duty there, at page 415 
 of the same book, says : 
 
 No mention was ever made of any unusual dead pups upon the rookeries having 
 been noticed at any time prior to my visit in 1870, but when I again visited the 
 islands in 1890, I found it a subject of much solicitude by tliose interested in the per- 
 petuation (of the seals), and in 1891 it had assumed such proportions as to cause 
 serious alarm. The natives making the drives first discovered this trouble, then 
 special agents took note, and later on I think almost every one who was allowed to 
 visit ihe rookeries could not close their eyes or nostrils to the great number of dead 
 pups to be seen on all sides. 
 
 Now th» is the particular point: 
 
 In company with special Agent Murray, Captain Hooper, and engineer Brerton of 
 the Corwin, I visited the Beef and Garholcli rookeries, St. Paul Islands, in August 1891, 
 
 Lord Hannen. — On St. Paul Islands? 
 
 Mr. Phelps. — Yes. 
 
 Lord Hannen. — I thought the object of your observation was to 
 show that pups were also dead on St. George's Island. 
 
 Mr. Phelps. — Yes, but it was said on that Island it was confined to 
 two rookeries, and this witness testifies to visiting other rookeries on 
 that island — to visiting the Eeef and the Garbotch rookeries which are 
 diffei'ent. 
 
 Mr. Garter. — Tolstoi and Polavina are said to be the ones. 
 
 Mr. Phelps. — Their proposition is that this is confined to Tolstoi 
 and Polavina. This witness whilst on the same island visited 2 other 
 rookeries. He continues thus : 
 
 and saw one of the most pitiable sights that I have ever witnessed. Thousands of 
 dead and dying pups were scattered over the rookeries while the shores were lined 
 with hungry, emaciated little fellows with their eyes turned towards the sea utter- 
 ing plaintive cries for their mothers which were destined never to return. 
 
ORAL ARGUMENT OP HON. EDWARD J. PHELPS. 239 
 
 Dr. Akerly was a resident physician on St. Paul in 1891, and at page 
 95 will be found his testimony. It is so long bearing on this point, 
 although it is interesting and very much to the point, that I will only 
 read a line or two here and there. But it is just touching this par- 
 ticular point, without going over his evidence in support of the general 
 fact that is not denied. He says : 
 
 During my stay on the island I made frequent visits to the dift'erent seal rookeries. 
 
 That is on St. Paul. Then he says : 
 
 One thing which attracted my atteaition -was the immense number of dead young 
 seals; another was the presence of quite a number of young seals on all the roolceries 
 in an emaciated and apparently very weak condition. I v\ras requested by the Gov- 
 ernment Agent to examine some of the carcasses for the purpose of determining the 
 cause or causes of their death. I visited and wallced over all the roolceries. On all 
 dead seals were to be found in immense numbers. Their number was more apparent 
 on those rookeries, the water sides of which were on smooth ground, and the eye 
 could glance over patches of ground, hundreds of feet in extent, which were thickly 
 strewn with carcasses. Where the water side of the rookeries, as at Northeast 
 Point and the Reef (south of the village) were on rocky ground, the immense number 
 of dead was not so apparent, but a closer examination showed that the dead were 
 there in equally great numbers, scattered among the rooks. In some localities, the 
 ground was so thickly strewn with the dead that one had to pick his way carefully 
 in order to avoid stepping on the carcasses. The great mass of dead in all oases was 
 within a short distance of the water's edge. The patches of dead would commence 
 at the water's edge, and stretch in a wide swarth up into the rookery. Amongst 
 the immense masses of dead were seldom to be found the carcasses of full grown 
 seals, but the carcasses were those of pups or young seals boru that year. I can 
 give no idea of the exact number of dead, but I believe that they could only be 
 numbered by the thousands on each rooJcery. Along the water's edge, and scattered 
 amongst the dead, were quite a number of live pups which were in an emaciated 
 condition. 
 
 and so forth. His whole testimony should be read. 
 
 The last Witness I shall refer to from page 152, is Mr. J.-C. Eedpath, 
 who says : 
 
 Excepting a few pups killed by the surf occasionally, it has been demonstrated 
 that all the pups found dead are poor and starved, and when examined, their 
 stomachs are found to be without a sign of food of any sort. In 1891, the rookeries 
 on St. Paul Island were covered, iu places, with dead pups, all of which had every 
 symptom of having died of hunger, and on opening several of them, the stomachs 
 were found to be empty. 
 
 The British Commissioners themselves have not denied that there 
 were pups on other rookeries than Tolstoi and Polavina, because iu 
 section 355 of their Eeport they say : 
 
 Tha mortality was at first entirely local, and though later a certain number of 
 dead pups were found on various rookeries examined, nothing of a character com- 
 parable with that on Tolstoi rookery was discovered. 
 
 They were there for 12 days, and D"^ Akerly has explained the dif- 
 ference. 
 
 l^ow, Sir, that is my answer to this proposition. What is the war- 
 rant for the claim that the mortality of these pups was confined to 
 special rookeries on one Island? 
 
 Then it is said by my learned friend that the mortality appeared 
 again in 1892 on the same rookeries when pelagic sealing was repressed 
 by the modus vivendi in Behring Sea? How far it was repressed is a 
 matter of conjecture; bit that it was intended to be repressed is 
 undoubted. Of course, of sealing that evaded the modus, we have no 
 account here. 
 
 The President. — Have you any reason to suppose that Behring Sea 
 was not quite closed to seahng? 
 
240 ORAL ARGUMENT OF HON. EDWARD J. PHELPS. 
 
 Mr. Phelps. — I have no reason to suppose it, founded upon any 
 evidence or information; I am not to be understood as saying so. The 
 modus Vivendi closed that sea. That it was attempted to be enforced 
 by both Governments in good faith is unquestionable — there is no doubt 
 about that. 
 
 Mr. Justice Harlan. — It was stated in the argument that some got 
 into Behring Sea, before they got notice of the modus vivendi. 
 
 Mr. Phelps. — Yes there is some evidence of that kind. 
 
 The President.— In 1891? 
 
 Mr. Justice Harlan. — 1891. 
 
 Sir Charles Rtjssbll.— The figures (that I did not know were dis- 
 puted) show that the entire number taken the year 1892 was 500. 
 
 Mr. Phelps. — I am making no statement on that subject because 
 I shall make no statement that is not founded upon evidence; and 
 therefore I do not say that any sealer got in, or that any seal was killed 
 in Behring Sea; I only say that is like the raids on the Island, and to 
 what extent in that foggy, tempestuous region the modus vivendi was 
 evaded, I do not know and I do not undertake to say. My friend may be 
 quite right in the figures of the number of skins he gives, for aught I 
 know. , In that year 1892 the number of dead pups declined rapidly 
 and there were none seen except on these two rookeries of Tolstoi and 
 Polavina. Mr. Macoun in the British Counter Case, and Mr. Stanley 
 Brown iu the United States Counter Case, and Mr. Lavender and Mr. 
 Murray, all show that the mortality of 1892 was confined to those rook- 
 eries, and that evidence undoubtedly may have misled my friends, and 
 they have carried the conclusion that was applicable to that time to an 
 anterior period. Now what does that show? It shows that the mor- 
 tality of 1891 and of the previous year everywhere else except on those 
 rookeries, must have been due to pelagic sealing, unless you ascribe it 
 to some cause that no ingenuity has been able to suggest, much less to 
 prove. 
 
 The evidence is not agreed as to whether the mortality in those two 
 rookeries was or was not as great as that which was noticed in the 
 same rookeries in 1891 ; but the evidence that we rely upon — the evi- 
 dence of Mr. Murray, the assistant Treasury agent, and the evidence of 
 Mr. Brown in the United States Case are both very explicit to the point 
 that the mortality on those rookeries in 1892 was much less than on the 
 same rookeries in 1891. Colonel Murray says : 
 
 I went over the rookeries carefully, looting for dead pups. The largest number 
 on any rookery occurred on Tolstoi, but here, as on the rookeries generally, but few 
 of them were to be seen as compared with last year. 
 
 In his deposition in the case he testifies to having seen about 3,000 
 dead pups in 1891. Then he goes on to say: 
 
 This was the first time in my four seasons residence on the islands, that the num- 
 ber of dead pups was not greater than could be accounted for by natural causes. 
 
 Then Mr. Stanley Brown says at page 388 of the United States Coun- 
 ter Case : 
 
 Dead pups were as conspicuous by their infrequency in 1892 as by th6ir numerous- 
 ness in 1891. In no instance was there to be noted an unusual number of dead pups, 
 except on the breeding grounds of Tolstoi, the position, character and size of whicli 
 gave prominence to the carcasses. Here the mortality, while in no way approaching 
 that of the previous season, was still beyond the normal, as indicated by the deaths 
 upon the other breeding grounds. 
 
 The evidence on the other side is solely, as far as I know, that of the 
 observation of Mr. Macoun, as stated in his Eeport, and an afiQdavitbv 
 Mr. Maynard which is referred to by Mr. Macoun. Now Mr. Macoun, 
 
ORAL ARGUMENT OP HON, EDWARD J. PHELPS. 241 
 
 speaking of Polavina rookery, does not himself state there were as 
 many dead pups on Polavina in 1892 as in 1891, because it does not 
 appear that he was on Polavina in 1891 at all, and he could not make 
 any comparison j but he takes a native with him to the rookery, and he 
 quotes the native if he properly understood him (or, rather, if the 
 native properly understood Mr, Macoun), to the effect that there 
 never had been before so many dead pups in the rookeries. As to 
 Tolstoi rookery, Mr. Macoun is the only witness who saw a greater 
 number of dead on Tolstoi in 1892 than there were in 1891. He was 
 on Tolstoi in the previous year, and he took a native along with him to 
 corroborate his opinion of 1892 and he quotes from the latter's state- 
 ment. The photographer was asked to verify a statement of the native, 
 and the language of the photographer, whatever was meant, is: 
 "When asked"— that is when the native was asked— " When asked 
 whether there were as many seals (not dead pups) in 1892 as in 1891, he 
 replied "more; more than ever I saw before". Mr. Macoun undoubt- 
 edly misunderstood him, because he gives it as supporting the claim 
 that there were more dead pups in 1892 than in 1891; biit the language 
 that is given would seem to indicate that the native did not so under- 
 stand the statement that he was making. It would be very plain that 
 the native says no such thing if it were not that Mr. Macoun cites him, 
 evidently understanding that that was what he meant to say. Mr. 
 Maynard says in the course of his affidavit : 
 
 We walked to that part of Tolstoi rookery ou which dead pups wore lying in great 
 numbers, and while we were standing within a few yards of the limit of the ground 
 on which these dead pups were, Mr. Macoun asked Anton Melovedoff— 
 
 that is the native — 
 
 whether he thought there were as many of them as there were last year, to which he 
 replied, "More; more than I ever saw before". 
 
 I make that observation upon the evidence for what it is worth. It 
 is not conclusive by any means. It is an observation that is fair to 
 make upon the language of the witness. 
 
 It is only fair, as I am dealing with the whole of this evidence, to read 
 something from Mr. Macoun's report. 
 
 Mr. Macoun, at page 146 of his Eeport, which is in the 1st volume of 
 the Appendix to the British Counter Case says: 
 
 Dead pups were first noticed by me ou Tolstoi rookery the 19th of August, though 
 photographs taken by Mr. Maynard on the 8th of August while I was on St. George 
 Island, show that at that date there were nearly, if not quite as many of them on 
 this rookery as there were ten days later. At the time I first noticed the dead pups 
 I counted over four thousand (4,000). . . The pups, when I first saw them, appeared 
 to have been dead not more than two weeks, and nearly all seem to have died about 
 the same time. . . This rookery was revisited on the 21st of August. At this time an 
 estimate was again made of the number of dead pupe. A large band of holluschickie 
 on their way from the water to the hauling ground at the back of Tolstoi rookery, 
 had stopped to rest on the ground on which the pups were lying, and hid a part of 
 them ; so that on this occasion a few less than 3,800 were counted. . . My last visit 
 to Tolstoi rookery was made on the 11th of September. No living seals were to be 
 seen on that part of the rookery ground on which the dead pups were, and it was 
 now apparent that they extended further to the left than is shown in the photo- 
 graphs taken of them. 
 
 Sir Charles Etjssell. — You are not reading Mr. Macoun's Eeport 
 continuously? 
 
 Mr, Phelps. — ^o; I skip a passage, — I am reading an extract given 
 me. He goes on: 
 
 Thatis to say, a part of the ground on which seals are taken in these photographs 
 had dead pups ou it, which at that time could not be seen; this would add sever^} 
 
 -m 
 
242 OEAL ARGUMENT OF HON. EDWARD J. PHELPS. 
 
 hundred to my former estimate of their number. No pups that had died recently 
 were to be seen anywhere. It seems reasonably certain that all the dead pups seen 
 on this part of Tolstoi rookery died at about the same time. . . 
 
 Of course, I do not read the whole of Mr. Macoun's observations, — I 
 do not propose to. That shows, however, that when Mr. Stanley Brown 
 left the Island, the mortality on the Tolstoi rookery was over, so that his 
 testimony, which I have before read, on this subject, was made with full 
 knowledge and observation of all the facts there were. 
 
 Just ciie other observation on this subject of dead pups. Of course, 
 it is not to be denied that in 1892 while the modus vivendi prevailed, 
 and while the number of nursing-mothers that were killed must in all 
 probability have been small, there was a mortality on two rookeries of 
 the Islands greater or less — Mr, Macoun states it a good deal higher 
 than Mr. Murray and Stanley Brown state it. They are all witnesses 
 entitled to attention. Their testimony differs only to that extent; but 
 the decisive point has already been alluded to, that it was only on those 
 rookeries that any mortality of dead pups that was noticeable was to be 
 seen in 1892. Our witnesses testify that, as compared with former 
 years, it was very small. Mr. Macoun's testimony is different. 
 
 ISTow then, the decisive point is, what was the cause of the death? 
 The evidence completely makes out, I think I am authorized in saying, 
 that in all the previous years the death of these pups was due to 
 starvation, because I do not understand that there is any contradiction 
 of the numerous statements that have been made before, that the pups 
 were in an emaciated condition, and that in numerous instances when 
 they were dissected, and their stomachs opened, they were found to be 
 without any nourishment. In 1892 the dead pups were generally in 
 good condition, and not indicating death by starvation, and the testi- 
 mony of Mr. Macoun himself establishes that. Ho says this in his report 
 at page 1 47 of the same Appendix : 
 
 That their deaths were not caused by starvation was very evident, as tbey were, 
 with few exceptions, large and well developed, not small and emaciated, as is almost 
 invariably the case witli those that are known to have wandered away from the 
 breeding grounds and died of starvation. 
 
 Now, Sir, by the testimony of Mr. Macoun himself, who very fairly 
 gives his observation on that point, it is plain that the seals that died 
 on these rookeries in 1892, did not die of starvation. It is not attribu- 
 table to pelagic sealing. It is equally plain upon the evidence of 
 many- witnesses, which is not contradicted, that in previous years on all 
 the islands and all the rookeries they did die of starvation. Now what 
 these pups died of on these two rookeries in 1892, it is quite out of my 
 power to tell — the evidence does not inform me. 
 
 I leave that subject and I leave it with the observation that with the 
 exception of the difference which I have tried to state fairly between 
 Mr. Stanley Brown and Mr, Murray, on the one hand, and Mr, Macoun 
 on the other, as to the relative proportion of the dead pups in these two 
 rookeries, there is no contradiction. Their evidence must speak for 
 itself and I cannot assist the Tribunal to reconcile it. And as I am now 
 coming to a new topic, although it is a few minutes before the adjourn- 
 ment, perhaps you will allow me. Sir, to stop here for the moment, 
 
 [The Tribunal then adjourned for a short time.] 
 
 Mr. Phelps. — I thought I had done, Sir, with the subject of dead 
 pups; but there is one other suggestion from the other side that I want 
 to answer briefly, if you will permit me to recur to it. The suggestion 
 is that on the Commander Islands no dead pups were seen in 1892, 
 which is the year when the pelagic sealing went over to the vicinity of 
 
ORAL ARGUMENT OF HON. EDWARD J. PHELPS. 243 
 
 those Islands in consequence of the modus vivendi. That, again, is 
 inaccurate. Mr. Macoun says, in his statement in the British Counter 
 Case at page 1 48. 
 
 Special inquiry was made by me at the Commander Island during the first week 
 in September as to whether young seals had been found dead in 1892 in larger num- 
 bers than usual, and several of the eldest natives were questioned by me on this 
 point. I was told by them that none had been seen there but a few that had been 
 "killed by the surf or had wandered away from the rookery ground. 
 
 This is not Mr. Macoun's observation, but what he learned from some of 
 the natives, and is in direct opposition to the testimony of a very much 
 higher character than that of the natives. Either the natives misun- 
 derstood him, or he misunderstood them, or he enquired of men who 
 did not understand what they were talking about. 
 
 Mr. Grebnitzki, whom, you will remember, was the Governor for 15 
 years, in the United States Counter Case at page 366, says : 
 
 There are always a few dead pups to be found on the rookeries whose death is not 
 due to that of their mothers; but during the last year or two a greater number of 
 dead pups have been actually noticed than heretofore, and have attracted the atten- 
 tion of all persons on the islands who are at all familiar with seal life. It cannot 
 be successfully contended that they all died of natural causes. There is no disease 
 among the Commander Island seals; and while a certain number of young pups are 
 always exposed to the danger of being crushed to death. . . or of being drowned by 
 the surf, yet these causes of death will not account for the greater mortality of 
 pups which took place during the past summer. Besides the bodies of the dead 
 pups I refer to are those of starved animals, being greatly emaciated. 
 
 Mr. Malowansky says under oath, in regard to this subject in the 
 United States Counter Case, page 374, — he is the Superintendent of 
 the Russian Government on those islands: 
 
 After the pups have learned to swim a number of dead pups have been reported 
 killed along the shore by the surf, but the number was always inconsiderable. 
 These pups were always grey pups, their bodies were always near the water's edge, 
 and never back on the rookeries. Within the last two years, the natives noticed 
 however, anotlier class of dead pups on the islands. These were always black pups 
 which were too small to have learned to swim, and were found on the breeding 
 grounds two hundred yards from the water. Such dead pups have been observed 
 since the sealing vessels began to take seals about the island. This year (1892), the 
 numbers became so great that the latter was commonly talked about on the islands, 
 and the natives made complaint to the Governor. It was my opinion and the 
 universal opinion of all on the islands that these deaths were caused by starvation, 
 which resulted from the mothers having been killed by the sealing schooners while 
 out feeding. This was also the opinion of the natives and others on the islands 
 during all of last season (1891). The matter was discussed with the British Behring 
 Sea Commissioners, who wore at Behring Island for about a day and a half in Sep- 
 tember of that year. Snigeroflf told them about it, and I acted as the interpreter at 
 the time. The grey pups heretofore mentioned as having been killed were always 
 plump and in good condition, while these black pups were in all cases very thin and 
 emaciated, showing evident signs of starvation. 
 
 And you will remember, to conclude, the passage that I read a day 
 or two ago from the letter of Mr. Chichkine, the Eussian Foreign 
 Minister, in the correspondence with the British Government, about 
 their seizing vessels, where, in stating his case, and the reasons for his 
 seizure, he stated these facts, including the fact that the pups died on 
 the islands on account of the loss of their mothers. 
 
 Now I come to another question. What is the consequence of all 
 this? We say the consequence is the inevitable extermination of the 
 animal. We say that the reduction in the numbers of the seal herd, 
 which the Commissioners, actingjointly, agreed had taken place — it was 
 the only point upon which they did agree — and that it was attributable 
 to the act of man, is owing to this indiscriminate killing; and we say 
 the necessary and inevitable consequence of it will be the extermination 
 
244 ORAL ARGUMENT OF HON. EDWARD J. PHELPS. 
 
 of the seal herd. On that point perhaps you will bear with me while 
 I at first, consider very briefly, if General Foster will be so kind as to 
 assist me by pointing out, what has taken place elsewhere. The islands 
 marked in red, on the map now before the Tribunal, were islands 
 which the testimony says were once populous ; where the seals were as 
 numerous as they are on the Pribilof Islands, and were obtained in 
 groat numbers. What has become of them? Except I believe on the 
 Lobos Islands where some measures have been taken to prevent indis- 
 criminate killing some years ago, where there are a few left, though 
 hardly enough to be commercially important, they are gone from every 
 one of them; so that with the small exception of what there are on 
 the Lobos Islands, there are no seals in the world — fur-seals, I mean. 
 Except on the Pribilof Islands, and the Commander Islands, in Behr- 
 ing Sea, they are all gone. When the sealers first visited the Island 
 of Mas-a-Fuero, off the coast of Chili, in 1797, there were estimated to 
 be 2,000,000 or 3,000,000 on the islands. More than 3,000,000 were 
 killed, and the skins carried to Canton in seven years thereafter. In 
 1807 they were almost exterminated, and in 1891 Captain Gaffney 
 visited the islands and saw 300 or 400, killing a few. All this is from 
 the evidence in the Case, 
 
 Juan Fernandez is a few miles eastward of Mas-a-Fuero. Dampier, 
 who visited this island in 1683, says that seals swarm as thick about 
 the island of Juan Fernandez, as if they had no other place in the 
 world to live in. There is not a bay or rock that one can get ashore 
 on but is full of them. There the unrestrained taking of the seals on 
 the land began in 1797, and in the year 1800 there were no seals to be 
 found on any part of it. In 1891, the island was visited, and a few fur 
 seals were seen, but very few. 
 
 The coast of Chili has the same history. I need not read the story 
 over again. The same about Cape Horn and the Falkland Islands. 
 There they are not quite gone, because the British since 1881 have put 
 an Ordinance in force which was presented to the Tribunal in another 
 connexion, and they are gradually increasing, but as yet assume no 
 commercial importance. On the South Georgia Islands and Sandwich 
 Land 300 miles east of Cape Horn, when first discovered, fur-seals 
 existed in very great numbers. In 1800 a single vessel took 57,000 
 skins. 16 vessels visited South Georgia that year, and in a few years 
 not less than 1,500,000 were taken from the Islands. In 1822, they 
 were reported as almost extinct. In 1874, after many years' rest, the 
 Islands were visited, and 1,450 skins were taken. In 1875, five vessels 
 secured 600, and in 1876, four vessels could only obtain 110. 
 
 In 1892 Captain Budington found the seals in that region practically 
 extinct, only a few straggling ones being seen. 
 
 The South Shetland Islands is another place. The first sealing ves- 
 sels in 1819 readily obtained cargoes of very fine skins. The news of 
 the discovery was quickly spread and by the end of the next year a lieet 
 of 30 vessels reached the region to gather the valuable pelts. Captain 
 Weddell gives this account : 
 
 The quantity of seals taken off these Islands by vessels from different parts dviring 
 the years 1821 and 1822 may be computed at 320,000 and the quantity of sea-elephant 
 oil at 960 tons. This valuable animal, the fur-seal, might, by a law similar to that 
 which restrains fishermen in the size of the mesh of their nets, have been spared to 
 render annually 100,000 fur-seals for many years to come. This would have followed 
 from not killing the mothers until the young were able to take the water and even 
 then only those which appeared to be old together with a proportion of the males 
 thereby diminishing their total number but in slow progression. This system is 
 practised at the River la Plata. The Island of Lobos at the mouth of that river 
 contains a quantity of seala. 
 
OEAL ARGUMENT OF HON. EDWARD J. PHELPS. 245 
 
 And he refers to that where there is a similar ordinance or provision. 
 He says : 
 
 The system of extermination was practised, however, at the South Shetlands ; for 
 ■whenever a seal reached the beach, of whatever denomination, he was immediately 
 killed and his skin taken, and by this means at the end of the second year the 
 animals became nearly extinct. The young, having lost their mothers when only 
 three or four days old, of course died, which at the lowest calculation exceeded 
 100,000. 
 
 Mr. Williams, in a Eeport to a Committee of the Congress of the 
 United States, speaking of the Shetland Islands says : 
 
 In 1872, fifty years after the slaughter at the Shetland Islands, the localities before 
 mentioned were all revisited by another generation of hunters, and in the sixteen 
 years that have elapsed they have searched every beach and gleaned every rock 
 known to their predecessors and found a few secluded and inhospitable places before 
 unknown ; and the nett result of all their toil and daring for these years scarcely 
 amounted to 45,000 skins ; and now not even a remnant remains save on the rocks oif 
 the pitch of Cape Horn. The last vessel at South Shetland this year of 1888, after 
 hunting all the group, found only 35 skins, and the last, at Kerguelan Land, only 61, 
 including pups. 
 
 The Island of Tristan d'Acunha and Grough Islands, midway between 
 Capes Horn and Good Hope, were formerly abundantly occupied, and 
 in 1887 Captain Comer, on a sealing voyage, left six men on Grough 
 Island, where they remained nine months, taking only about 50 skins. 
 
 On the west coast of South Africa, the same history is true. The 
 immense number of seals in this locality, on the islands and along the 
 coast, were vigorously hunted, beginning about 1790, and large quanti- 
 ties were taken by sealing vessels at intervals up to 1830, when, owing 
 to the diminished number, sealing became unprofitable. 
 
 The Islands south-east of the Cape of Good Hope was another place 
 once covered with a multitude of seals; so that Captain Cox, who visited 
 there in 1789, says : 
 
 On first landing, we found the shore covered with such multitude of seals, that we 
 were obliged to disperse them before we got ont of the boat. 
 
 But, on all these Islands, only a few straggling seals are found, in 
 numbers so small as to make their pursuit unprofitable. 
 
 In Australia and New Zealand at the beginning of the present cen- 
 tury, fur-seals in considerable numbers were found along the south- 
 west coast of Australia and in the vicinity of Tasmania. Stimulated 
 by these reports, the adventurous sealers discovered an apparently 
 inexhaustible supply of these animals on the numerous small islands 
 south of New Zealand. In 1803 a single vessel took away from the 
 island of Antipodes 60,000 prime fur-seal skins. Macquarie Island 
 was discovered in 1811 by a sealer, who procured a cargo of 80,000 
 skins. Sealing on these islands was at its height from 1810 to 1820. 
 In two years 300,000 skins were obtained, one vessel carrying away 
 100,000. Now Morrell, who visited those regions in 1830, reported that 
 the sealers had made such complete destruction "as scarcely to leave 
 a breed, not one fur-seal" being found by him. A few, however, sur- 
 vived the general slaughter, and, in recent years, under the protection 
 of the Government of New Zealand, a small annual catch of from one 
 to two thousand fur-seals is now taken. 
 
 There is the history of the whole of the world, as far as these animals 
 are known to exist in it. My learned friend says these animals were 
 not killed in the sea; they were killed on the islands. That is true 
 undoubtedly. They were killed on land and water. It is not the kill- 
 ing of a seal in the water that exterminates the race. The same seal 
 may be killed in the water as well as on land without affecting the 
 
246 ORAL ARGUMENT OF HON. EDWARD J. PHELPS. 
 
 duration of the race. The only difference would be that in killing in 
 the water, they do not save so many of those you kill. But that is not 
 the point. It is the indiscriminate killing by which the females are 
 destroyed and breeding stopped. 
 
 That is what destroys the race. If we were engaged on the part of 
 the United States in killing the female seals on the Islands, and the 
 pelagic sealers were engaged in killing the male seals at sea, this case 
 would be exactly reversed. I mean killing the same seals. If they 
 were doing on the sea what we are doing on the Islands, or if we were 
 doing on the Islands what they were doing at sea, then the preserva- 
 tion of the fur-seal race would, of course, require the cessation on the 
 Islands and not at sea. It is the indiscriminate killing by which the 
 stock is destroyed. 
 
 I want to refer — I hope not tediously — to Vol. 1 of the United States 
 Appendix, at page 411. We have collected there letters from many of 
 the most distinguished and leading naturalists in the world, from many 
 countries on this subject. I cannot afford the time to read to you 
 aloud, what I should be so glad to read, all these letters, but I may 
 just advert to some passages in some of them, and I will respectfully 
 ask, if these letters have not already engaged the attention of the 
 Members of the Tribunal, — and, of course, in this vast mass of mate- 
 rial, I cannot tell what has been read and what not — I would respect- 
 fully ask the perusal of these pages after page 411. The first statement 
 is by Professor Huxley, and this is not in response to any enquiry — 
 some of the other letters are. He says, at the bottom of page 411. — 
 
 In the case of tlie fur-seal fisheries, the destructive agency of man is prepotent on 
 the Prihilof Islands. It is obvious that the seals might he destroyed and driven 
 away completely in tveo or three seasons. Moreover, as the number of bachelors, 
 in any given season is easily ascertained, it is possible to keep down the take to 
 such a percentage as shall do no harm to the stock. The condition for efficient reg- 
 ulations are here quite ideal. But in Behring Sea and on the north-west coast the 
 case is totally altered. In order to get rid of all complications, let it be supposed 
 that western North America, from Behring Straits to California is in the possession 
 of one Power, and that we have only to consider the question of regulations which 
 that Power should make and enforce in order to preserve the fur-seal fisheries. 
 Suppose, further, that the authority of that Power extended over Behring Sea, and 
 over all the north-west Pacific, east of a line drawn from the Shumagin Islands to 
 California. 
 
 Under such conditions I should say (looking at nothing but the preservation of 
 the seals) that the best course would be to prohibit the taking of the fur-seals, any- 
 where except on the Pribilof Islands, and to limit the take to such percentage as 
 experience proved to be consistent with the preservation of a good average stock. 
 The furs would be in the best order, the waste of life would be least, and if the 
 system were honestly worked, there could be no danger of over-fishing. 
 
 Sir Charles Eussbll. — Would you read the next passage. 
 
 Mr. Phelps. — I really have not the time or I should be glad to oblige 
 my learned friend. He proceeds to poiut out what he conceives to be 
 the legal difficulties in the way. 
 
 Sir Charles Eussell. — He says what he calls the ideal arrange- 
 ment is impracticable. 
 
 Mr. Phelps. — He says it is impracticable because he assumes there 
 are legal objections — not that it is impracticable in fact: finally, he 
 says, and I will read his conclusion. (As I have said in reading any 
 passage of these letters, I do it in the hope that the whole context will 
 be read.) 
 
 Finally, I venture to remark that there are only two alternative courses wortli 
 pursuing. 
 
 One is to let the fur-seals be extirpated. Mankind will not suffer much if the 
 ladies are obliged to do without seal skin jackets. 
 
ORAL ARGUMENT OP HON. EDWARD J. PHELPS. 247 
 
 That is one. 
 
 The other course is to tread down all merely personal and trade interest in pnr- 
 snit of an arrangement that ■will work and be fair all round; and to sink all the 
 stupidities of national vanity and political self-seeking along with them. 
 
 Sir Charles Etjssbll. — That refers to a scheme for making the 
 Pribilof Islands an international concern. 
 
 Mr. Phelps. — No. 
 
 Sir Charles Etjssell. — I assure yon, yes. 
 
 Mr. Phelps. — Now I cannot read all these letters, but in every one 
 of them that I shall notice I hope the context will be read, and it will 
 be of no avail for me to select passages. 
 
 Dr. Sclater, Secretary of the Zoological Society of London, has given 
 cin afiidavit in which he says : 
 
 1. Unless proper measures are taken to restrict the indiscriminate capture of the 
 fur-seal in the North Pacific he is of opinion that the extermination of this species 
 ■will take place in a few years as it has already done in the case of other species of 
 the same group in other parts of the world. 
 
 2. It seems to him that the proper way of proceeding would he to stop the killing 
 of females and young of the fur-seal altogether, or as far as possible, and to restrict 
 the killing of the males to a certain number in each year. 
 
 3. The only way he can imagine by which these rules could be carried out is by 
 killing the seals only in the islands at the breeding time (at which time it appears 
 that the young males keep apart from the females and old males), and by prevent- 
 ing altogether as far as possible, the destruction of the fur-seals at all other times 
 and in other places. 
 
 I commend to the attention of the Tribunal an article which this 
 gentleman, of his own motion, published in " The Nineteenth Century" 
 magazine, of London, since this argument commenced. It is in the 
 June number, entitled "A Naturalist's Yiew of the Fur-Seal Question," 
 in which he says he has read this evidence, and he comes out with his 
 views. It is not in the Case, and I have not time to read it, but I quite 
 commend that to the attention of the Tribunal, as I did venture, on a 
 question of law, to commend an article by Mr. Tracy, in " The North 
 American Review," who is a very eminent lawyer in the United States. 
 Mr. Merriam addressed a circular letter of enquiry to various distin- 
 guished naturalists in different parts of the world, in which he gave 
 them, as a foundation, certain statements in regard to the nature and 
 habits of the fur-seal, and the conditions of pelagic sealing. 
 
 These occupy several pages, and in order fairly to understand the 
 answer of these naturalists it would be but fair to be iirst acquainted 
 with the facts that were presented in the letter of enquiry, because if 
 those facts have misled these gentlemen, then their opinion would be 
 good for nothing. I must not stop to read that, but I submit, with great 
 confidence, it will be found to be a correct statement of facts. On 
 page 419, there is a letter in French, and a translation of Mr. Milne 
 Edwards, of Paris. He is the director of the museum of natural his- 
 tory. This is but an extract and he refers to the extermination that 
 has taken place everywhere, and he goes on and says, 
 
 It will soon be thus with the callorhinus ursinus in the North Pacific Ocean, and it 
 is time to ensure to these animals a security which may allow them regular repro- 
 duction. I have followed with much attention the investigations which have been 
 made by the Government of the United States on this subject. The reports of the 
 Commissioners sent to the Pribilof Islands have made known to naturalists a very 
 large number of facts of great scientific interest, and have demonstrated that a regu- 
 lated system of killing may be safely applied in the case of these herds of seals when 
 there is a superfluity of males. What might be called a tax on celibacy was applied 
 in this way in the most satisfactory manner, and the indefinite preservation of the 
 species would have been assured if the emigrants on their way back to their breeding 
 places had not been attacked and pursued in every way. 
 
248 ORAL ARGUMENT OP HON. EDWARD J. PHELPS. 
 
 Dr. Bhering of Berlin, Professor of Zoology in the Koyal Agricultural 
 College, writes a letter which will be found at the bottom of page 420; 
 and reading only an extract here, he says : 
 
 I am, like yourself, of the opinion that the remarkable decrease of fur-seals on the 
 rookeries of the Pribilof Islands, which has of late years become more and more 
 evident, is to be attributed mainly or perhaps exclusively to the unreasonable 
 destruction caused by the sealers who ply their avocation in the open sea. The only 
 rational method of taking the fur-seal and the only one that is not likely to result 
 In the extermination of this valuable animal is the one which has hitherto been 
 employed on the Pribilof Islands under the supervision of the Government. Any 
 other method of taking the northern fur-seal should, in my opinion, be prohibited by 
 international agreement. I should, at furthest, approve a local pursuit of the fur- 
 seal where it as destructive of the fisheries in its southern winter quarters. I regard 
 pelagic fur-sealing as very unwise; it must soon lead to a decrease, bordering on 
 extermination of the fur-seal. 
 
 Professor OoUett, of the University of Christiania, in liTorway, says : 
 
 It would be a very easy reply to your highly interesting treatise of the fur-seal, 
 which you have been kind enough to send us, when I only answered you that I agree 
 with you entirely in all points. No doubt it would be the greatest value for the 
 rookeries on the Pribilof Islands, as well as for the preservation of the existence of • 
 the seal, if it would be possible to stop the sealing at sea at all. But that will no 
 doubt be very difficult, when so many nations partake in the sealing and how that 
 is to go about 1 cannot know. My own countrymen are killing every year many' 
 thousands of seals and cystopTiorai on the ice barrier between Spitzbergen and Green- 
 land, but never females with young; either the old ones caught, or, and that is the 
 greatest number, the young seals. But there is a close time, accepted by the differ- 
 ent nations, just to prohibit the killing of the females with young. Perhaps a 
 similar close-time could be accepted in the Behring Sea. 
 
 Dr. Hartlaub writes a letter, and you will notice that the original as 
 well as the translation, from which I read, is printed. He says: 
 
 I am far from attributing to myself a competent judgment regarding this matter, 
 but considering all facts which you have so clearly and convincingly combined and 
 expressed, it seems to me that the measures you propose in order to prohibit the 
 threatening decay of the northern fur-seal are the only correct ones promising an effect- 
 ive result. 
 
 Professor Salvadori, from Turin, gives a letter. 
 
 Dr. Leopold von Schrenck, of the Imperial Academy of Science, St. 
 Petersburg, gives another letter. 
 
 Then I take Dr. Giglioli, the Director of the Zoological Museum, 
 Eoyal Superior Institute in Florence. That is a long and full letter. 
 I wish I could read it all, but I will read from the bottom of page 424. 
 
 Having conclusively shown that the lamented decrease in the herd of fur-seals 
 resorting to the Pribilof Islands can in no way be accounted for by the selective 
 killing of non-breeding males for commercial purposes, which takes place on those 
 islands under special rules and active surveillance, we must look elsewhere for its 
 cause ; and I can see it nowhere but in the indiscriminate slaughter, principally prac- 
 tised on breeding or pregnant females, as most clearly shown in your condensed 
 Report, by pelagic sealers. 
 
 In any case, all who are competent in the matter will admit that no method of 
 capture could be more uselessly destructive in the case of Pinnipedia than that called 
 "pelagic sealing," not only any kind of selection of the victims is impossible, but it 
 Is admitting much to assert that out of three destroyed one is secured and utilized, 
 and this for obvious and well-known reasons. In the case of the North Pacific Fur 
 Seal, this mode of capture and destruction is doubly to be condemned, because the 
 destruction falls nearly exclusively on those, the nursing or pregnant females, which 
 ought on no account to be killed. It is greatly to be deplored that any civilized 
 nation possessing fishery laws and regulations should allow such indiscriminate 
 waste and destruction. The statistical data you give are painfully eloquent, and when 
 we come to the conclusion that the 62,500 skins secured by pelagic sealing in 1891 
 represent at a minimum one-sixth of the Fur seals destroyed, namely 375,000, — that 
 is, calculating one in three secured and each of the three suckling a pup or big with 
 young, — we most undoubtedly need not look elsewhere to account for the rapid 
 
ORAL ARGUMENT OP HON. EDWARD J. PHELPS. 249 
 
 decrease in the rookeries on the Pribiloflf Islands ; and I quite agree with you in 
 retaining that unless the malpractice of pelagic sealing be prevented or greatly 
 checked, both in the North Pacific and in the Behring Sea, the economic extermina- 
 tion of CallorMnut ursinus is merely the matter of a few years. 
 
 The rest of the letter is equally interesting. 
 
 The next letter is from Dr. Eaphael Blanchard of Paris, Professor of 
 the Faculty of Medicine and General Secretary of the Zoological 
 Society of France. It is to the same effect, and I only call attention 
 to it. 
 
 Then the letter from Dr. William Lilljeborg, of Upsala, Sweden, and 
 Professor l!fordenskiold, of the Academy of Sciences, Stockholm, is a 
 joint letter; and I will read an extract from that: 
 
 We do not, therefore, hesitate to declare that the facts about the life and habits 
 of the Fur Seal, stated by you in your said letter under 1-20, should serve as a base 
 for the regulations necessary to preserve this gregarious animal from its threatened 
 extinction in a comparatively short time. 
 
 These regulations may be.divided into two categories, namely, firstly. Regulations 
 for the killing, etc., of the Fur Seals on the rookeries in order to prevent the gradual 
 diminution of the stock; Secondly, Regulations for the Pelagic Sealing or for the 
 hunting of the Seals swimming in tlie ocean in large herds to and from the rookeries, 
 or around the rookeries during the time when the females are suckling the pups on 
 land. 
 
 Then the last paragraph : 
 
 As to the Pelagic Sealing, it is evident that a systematic hunting of the Seals in 
 the open sea on the way to and from or around the rookeries, will very soon cause 
 the complete extinction of this valuable, and from a scientific point of view, so 
 extremely interesting and important animal, especially as a great number of the 
 animals killed in this manner are pregnant "cows," or "cows" temporarily sepa- 
 rated from their pups while seeking food in the vicinity of the rookery. Every one 
 having some experience in Seal-hunting can also attest that only a relatively small 
 part of the Seals killed or seriously wounded in the open sea can in this manner be 
 caught. We are, therefore, persuaded that a prohibition of Pelagic Sealing is a 
 necessary condition for the prevention of the total extermination of the Fur-Seal. 
 
 There are other letters, with which I must not detain you, from gen- 
 tlemen of eminence in various countries of scientific position and high 
 repute. 
 
 Now this is scientific testimony; these are not seal-hunters or super- 
 intendents. This is the scientific branch of the case ; on the other hand 
 we have a great mass of testimony that I cannot stop to review. There 
 is a vast amount of evidence in the case from practical men. In the 
 Collated Testimony appended to the American Argument from pages 
 306 to 312 you will find the testimony of 174 practical sealers ; 25 of 
 them are masters of vessels, 30 are seamen, 86 are Indian hunters, 8 
 others are intelligent observers from those resident on the Islands. I 
 shall not read a word of their testimony. I refer you to it. It is all 
 concurrent. 
 
 It is nothing but a repetition of the statement that in their judg- 
 ment the decrease that has taken place is owing to this destruction of 
 females and young, and that the extermination of the seal will be the 
 consequence. They come to the exact conclusion from their practical 
 point of view that the scientific men do from theirs. These witnesses 
 are no more scientific men than those scientific men are practical seal- 
 ers, and the concurrence of their judgment is extraordinary. 
 
 What is there on the other side? Among all the scientific men of 
 eminence in this world, even including those in England like Professor 
 Sclater, Professor Huxley and Professor Flower, whose letter was read 
 the other day, where is the man who comes to contradict the testimony 
 of these gentlemen and to express any different view? Where is the 
 practical evidence to the contrary 1 What is it that my learned friends 
 
250 ORAL ARGUMENT OF HON. EDWARD J. PHELPS. 
 
 say about this? Do they say that you cau go on killing females in 
 these increasing proportions, for you have not failed to observe that the 
 business of pelagic sealing has grown in respect to the number of vessels 
 with great rapidity — do they assert that? No. They attempt to parry 
 it only by saying, "Well, you exaggerate it". Tou might as well say 
 we exaggerate mathematics. That we exaggerate a demonstration of 
 geometry. It is a result that comes mathematically; — certainly, by 
 natural laws from certain premises. Nobody can exaggerate it. It 
 does not need any exaggeration. 
 
 Thej^ undertake, however, to say this is not the only factor in 
 extermination. This is not all there is, they say ; you are responsible for 
 some of it; there is a decrease that is alarming and portentous, but it 
 is not all our fault. It is partially yours. Now, I propose to examine 
 that question; not because it is really material, but because, so far as 
 time allows, I do not propose to leave any suggestion that my learned 
 friends think important enough to make, and to rely upon, to be disre- 
 garded. We will meet them on their own ground on all these points. 
 
 Let me first, however, call your attention to the conclusive mathemat- 
 ics that result from this evidence. I said a little while ago, in opening 
 the question of the proportion of females, that reflection would show, 
 without any figures, that this business of killing the males ever since 
 1847 and sparing the females, till pelagic sealing prevented them, must 
 result in a preponderance. My learned associates have prepared for 
 my use a statement. It is in reply to the calculation that my learned 
 friend Sir Charles Eussell presented, based on the diagrams of the 
 American Commissioners which are given in connection with their 
 Eeport ; and he arrives at a conclusion which certainly leads me to think 
 that he is not so much my superior in mathematics as he is in everything 
 else. He arrives at the conclusion that the diminution caused by pelagic 
 sealing on the statistics in this case is inconsiderable; or figuring it out 
 it is not large enough ever to exterminate the herd. How does he 
 reach that conclusion'? Simply by leaving out the most important fac- 
 tor in his sum. He treats these females as individuals, and takes no 
 account of their productive faculty. He does not take into account the 
 geometrical progression from year to year. If the same mathematics 
 were true in the increase of the human race we should not be here. 
 We should long ago have perished off the earth. It is the reproductive 
 power of the female sex which has kept the human race in its rapid 
 progression in number, even though the ratio of increase in humanity 
 is, of course, from many and obvious reasons, very much slower than the 
 progression of many animals of a lower grade. 
 
 In reply to this suggestion my learned friends on our side have pre- 
 pared some tables, which are nothing new. They are simply figures 
 which we make upon the evidence, in reply to his figures; but I cannot 
 make them understood without you have the kindness to glance at the 
 Eeport. They introduce, as I say, nothing new. They are only figures 
 based on the evidence in the case, and I shall be able to point out what 
 there is of them, very briefly. They can be compared in their results 
 with the result that my learned friend has arrived at with his figures. 
 
 The assumption of these tables should be first stated, in order that 
 they may be understood. We assume that the seals born in any year 
 decrease annually at the several rates indicated in the diagramsof the 
 United States Commissioners. 
 
 (See the United States Case, page 353.) That is from natural 
 causes, of course; that they decrease aside from anything that men 
 do; and it struck me that the ratio allotted by the Commissioners of 
 
ORAL ARGUMENT OF HON. EDWARD J. PHELPS. 251 
 
 decrease from natural causes was too large; but my opinion on that 
 question is worthless; and there is no evidence by which it can be 
 ascertained. They evidently undertook to make a very liberal allow- 
 ance for the death of the young by natural causes; and they work 
 out, I believe, that half of all that are born perish the first year; and 
 then in a proportionate ratio they continue to perish from merely 
 natural causes, even if they were left alone. Then we assume that 
 each breeding female has a breeding life of 18 years. Tliat is the 
 result of the best evidence there is in this case: that each breeding 
 female gives birth annually, from and including her third year, to one 
 pup, and that half of these pups are females. That, I believe, is 
 conceded. Of course, these are assumptions, but they are the best 
 assumptions that the evidence warrants as to the breeding age of the 
 seals, the number of pups that they produce. Tlien a calculation is 
 made in this way; and we will take Table A, We take 1,000 females. 
 By way of hypothesis we divide them into 4 classes: 3 years old, 4 
 years old, 5 years old, G years old, which are all breeding ages. Then 
 if you refer to the first column of Table A, the left-hand column, the 
 figures at the top give the uumbers of the years from one to 18. In 
 column one, the 4 lower figures of 250 each represent these 1,000 fur- 
 seals of 3, 4, 5 and 6 years of age. Now those seals will produce that 
 year 500 female pups, upon the assumption that, if they produce 1,000 
 young, 500 will be females. You add, therefore, to that 1,000, the first 
 year, 500; and you have now 1,500 females of whom the 500 are just 
 born. 
 
 Now go to the second year, and the 500 females, that were born the 
 year before, shrink, by natural causes, to 250 who attained their second 
 year, and that 250 is the second figure in the column. Then the 1,000 
 breeding seals, with which you begin, shrink, the one class to 208, the 
 next to 225, the next to 236, and the last to 220. Those are the figures 
 resulting from the ratio of decrease given by the Commissioners. That 
 number of seals, thus shrunk from the former year, produces that year 
 444 females, which you will find is the figure at the head of the column, 
 and the number of female seals has increased that year, the net 
 increase, to 1,583. Now if you follow that table down, noticing that 
 the corresponding figure in each column is one step lower down, you 
 find what becomes of that original 1,000 that you started with. In the 
 sixteenth year they, are all gone; that is to say, if not dead they are 
 past the breeding time, and that 1,000 with which you started has 
 gradually disappeared from the herd, and is gone. 
 
 You will see what the successive birth in each successive year is 
 after they get to be old enough for the seals that are born in each suc- 
 cessive year to breed, and you will see at the head of the column under 
 each successive year the females that will be born during that year. 
 They are carried forward with their increase after they get to be three 
 years old, and I think with this explanation I can add nothing that 
 renders the tables any clearer. They are quite clear as they stand 
 and you see the result in the 18 years ; at the end of that time 1,000 
 females have become 2,117, as a net result after deducting all that 
 have died from natural causes either by being killed in earlier years or 
 from outliving their usefulness and so disappearing. 
 
 Unless some question should be suggested about these tables I will 
 turn to Table B though I should be happy to try to answer any ques- 
 tion that may be put. 
 
 Table B shows the number of females that would have been alive in 
 1882 except for j^elagic sealing and which would have appeared on the 
 breeding grounds in 1884, calculating from Table B. 
 
252 ORAL ARGUMENT OP HON. EDWARD J. PHELPS. 
 
 This table begins with tlie year 1872 and ends with the year 1882. 
 That covers 11 years therefore. It assumes the theoretical calculation 
 of the last table. It gives the catch for each year as derived from 
 actual figures in the evidence the tables given by the American Com- 
 missioners of the pelagic catch, and it figures out upon that basis the 
 net loss to the herd by the destruction of the number of females which 
 the table shows were actually taken. 
 
 That requires a word of explanation before leaving it. We have 
 assumed that for the purpose of this table, all the seals shown to have 
 been taken by pelagic sealing are females. Of course, that might at 
 the threshold be challenged. We do it for this reason: In the first 
 place 85 per cent are proved to be females. Then it is shown by a 
 great body of evidence what common sense indicates sufficiently with- 
 out any evidence, that a great many more seals are necessarily 
 destroyed by shooting in the water than can possibly be saved, and 
 that of the proportion of seals that are lost, the same proportion are 
 females as among those that are saved, so that if 85 per cent of the 
 seals saved are.females, 85 of those lost are females, and when you add 
 a very small percentage to what the evidence shows is the actual loss, 
 it is a very moderate assumption that the number of seals destroyed, 
 wasted and lost is equal to the entire number of seals saved, male and 
 female. Therefore we have felt it right — and the figures sustain us — 
 in treating the pelagic product that is saved as all of them being females. 
 
 Now what is the result? The result is that the number of females 
 killed in those ten years, because although 11 years are covered, in one 
 year, namely, that of 1873, the catch is not given — the number of 
 females lost to the herd aside from those perishing from natural conse- 
 quences is 137,624. That is the actual result; that is at the end of 
 1882. Now if you will kindly turn over the leaf to table 0, this is car- 
 ried forward, so as to show the number of females which would have 
 been alive in 1889 except for pelagic sealing, and which would have 
 appeared on the breeding grounds in 1891, three years later. It is a 
 carrying forward of the same figures with the addition of the catch in 
 the years subsequent to 1882 — from 1882 to 1889; and on the same 
 basis of calculation you find as the result of these figures, that the 
 female seals on the breeding grounds in the year 1891, in consequence 
 of the ascertained pelagic catch, would be 483,420, in round numbers, 
 500,000 of female breeding seals destroyed by the pelagic catch, and by 
 nothing else : I respectfully invite attention to those figures. 
 
 Lord Hannen. — You have invited a question upon this table, I 
 believe. 
 
 Mr. Phelps.^— Certainly, my Lord. 
 
 Lord Hannen. — Does that take account of any female born to replace 
 those supposed to be used? 
 
 Mr. Phelps. — Yes. 
 
 Lord Hannen. — It does take that into account. 
 
 Mr. Phelps. — Yes, it takes an account of the perpetual birth-rate 
 as well as the decrease. In the first table that is made very plain by 
 adding every year the increment and deducting the loss from natural 
 causes. Those are figures that are applied to the pelagic catch, and 
 the consequence of the figures is, that the loss from the pelagic catch 
 to the herd is in round numbers 500,000 breeding females — not quite 
 that. Mr. Carter has suggested a correction, that naturally enough 
 escaped me, that this 483,420 is subject to one deduction that is not 
 made in the table. It is a little too large. It is subject to the deduc- 
 tion of those who would have died between 1889 and 1891, from natural 
 causes. 
 
OKAL ARGUMENT OF HON, EDWARD J, PHELPS. 253 
 
 Mr. Caetbe. — It is not too large for 1889. 
 
 Mr. Phelps. — No. The table is right as it is headed. It shows the 
 loss in 1889, but when you come to carry that forward, 3 years longer, 
 to 1891, you must take into account the deaths from natural causes of 
 these young seals maturing during that period. That figure has not 
 been made, but it would not change the result. 
 
 On the other hand the killings of 1890 and 1891 are not included, 
 which would more than balance, because if they are not included then 
 the number of females would be increased rather than diminished. 
 
 Now this is Table D, the last one, which shows the loss in the number 
 of female seals which would be effected by 10 years of pelagic sealing 
 based on the supposition that 20,000 breeding females were killed 
 annually during that period. 
 
 This is a hypothetical table not founded on actual catch, showing 
 what would be lost if 20,000 breeding females are killed by pelagic 
 sealing each year: you will see readily from the table hOw that is fig- 
 ured out, and the total loss in 10 years of female seals would be 361,840. 
 The difference between this table and the last is that the last is at- 
 tempted to be founded on the actual destruction as reported. This is 
 based on a hypothetical destruction of 20,000 female seals in each year. 
 I am talking exclusively of female seals in these tables. They take no 
 account of anything else. It is the loss of breeding females. I should 
 have remarked that there is a total loss of females, and a loss of breed- 
 ing females, the difference being of course that females are not breeding 
 females till they are three years old, and the loss of breeding females 
 is 220,820, and the total loss of females at the end of the period is 
 361,840. 
 
 The American Commissioners do not assume to number the herd, but 
 they give a hypothetical herd in which there is supposed to be. 1,500,000 
 females, of which 800,000 are capable of breeding. That is a total herd 
 of 3,000,000. It is seen, therefore, assuming the Pribiloft" herd to cor- 
 respond in numbers to the Commissioners' hypothesis, that in 10 years 
 of pelagic sealing which destroyed 20,000 breeding females a year, the 
 number of females in the herd would be reduced by 361,840, or over 24 
 per cent of the whole number of females, while the breeding females 
 would be reduced by 220,820. If you take it at 3,000,000 as its nor- 
 mal condition, and assume half of those are females, and that of the 
 1,500,000 females, 800,000 are capable of breeding, the figures tell the 
 consequence, that 27 per cent of the breeding cows are gone in 10 years. 
 Of course, it may be said these figures are upon the hypothesis of the 
 Commissioners, because an exact census cannot be taken, but it is the 
 best hypothesis that the case admits of. I do not think that examin- 
 ing this table, in connection with the evidence in the case, it will occur 
 to members of the Tribunal that the premises are in any respect erro- 
 neous, that the hypotheses are not the most just and reasonable that 
 the materials of the Case enable us to make; and from this source as 
 well as from all the others we arrive at a conclusion that I confess, to 
 ray mind, would be just as apparent before I heard a word ou the sub- 
 ject from scientific, or practical men, from tables, from experience else- 
 where, as it is now. Anyone who will give a moment's attention to 
 the geometrical progression of animal life — animals of this class I 
 mean, or animals that are analogous to those with which we are con- 
 cerned — must see, if he is no more of a mathematician than I am, what 
 result takes place. 
 
 Cast your eyes back for one moment to the growth of the population 
 of this world. The conditions of increase are nothing like those we 
 
254 OEAL ARGUMENT OF HON. EDWAKD J. PHELPS. 
 
 assume here. The human race is not polygamous. The number of 
 children that are produced under ordinary circumstauces is far less. 
 The time that elapses before the productive period arises is much 
 greater. Now let a person reflect for a moment how long it is since the 
 continent of America was discovered. The Indians that then inhabited 
 it are substantially gone. A remnant alone remains in the Far West 
 that are fast disappearing. Now look at the 60,000,000 or 70,000,000 of 
 people on that Continent, leaving Indians out. Where do they come 
 from'? Emigration considerably, of course. All from emigration in 
 the first place — all the descendants of emigrants. But what country 
 has lost population in that period from whence they came? One or' 
 two — perhaps one, might be named; under unhappy circumstances in 
 a more recent period, its population has diminished, but not during 
 that entire period. In every country in the world that 400 years ago 
 began to contribute to the population of the Western Hemisphere its 
 own population has largely increased. i 
 
 Now suppose a herd of animals of this kind is not touched by man 
 at all. The increase would not be indefinite: it would reach a point 
 which would be called by naturalists its maximum. The laws of nature 
 provide for those things. No race of -animals could ever over-populate 
 the earth or reach a point where the laws by which the increase of pop- 
 ulation regulates itself. ; 
 
 The President. — Malthusianism. 
 
 Mr. Phelps. — Yes, the natural Malthusianism. The natural opera- 
 tion of that theory undoubtedly; but in order for that, causes have to 
 intervene, provided by Providence, by which these animals are kept at 
 their maximum. It was enquired by the President, in the early stages 
 of this discussion, how it came to pass, if the males were not reduced 
 by artificial killing, that the females would become most numerous. 
 
 That is a question that is for naturalists to. answer, or for observers; 
 but I suppose the answer to be in the theory of the survival of the 
 fittest. I suppose when the number of males becomes too large in such 
 a herd of wild animals, when they are not artificially restrained as in 
 the propagation of domestic animals, there is a mutual destruction by 
 fighting, of which these islands are the conspicuous theatre, with regard 
 to this race of animals, and it results not in the survival of all the males, 
 but only a part of them. However, that is theoretical, and I do not 
 care to pursue it. 
 
 Now, Sir, this is the point to which all my observations have tended 
 to day, and, part of them, yesterday: are we, or are we not as a matter 
 of fact, established by the evidence in this case, drawn from many con- 
 verging and independent sources, entitled to say, that the continuance 
 of pelagic sealing just as it has taken place, especially in view of the 
 increase of it, which we have shown also to be steady, and which will 
 only find its check when the destruction of the animals ceases to render 
 it profitable, results necessarily at no very distant period in the exter- 
 mination of this race of animals here as it has everywhere else. 
 
 Now returning to what has been said by my friends on the other side 
 — that is to say, that the management on the islands has not been good, 
 and therefore that the pelagic sealer is not responsible for all the 
 decrease that has taken place in this herd. 
 
 Before I look into the facts upon which I shall claim that to be a 
 proposition absolutely unwarranted — that will no more bear examina- 
 tion in the light of the whole evidence in the case than any of the other 
 propositions that I have been able to demonstrate to be inaccurate and 
 unfounded — suppose it to be true"? Suppose that in the prosecution of 
 
ORAL AEGUMENT OP HON. EDWARD J. PHELPS. 255 
 
 this industry by a great nation not wanting in intelligence, anxious to 
 preserve this herd, largely interested in preserving it — that in this 
 industry as in every other pursuit that man ever set his haTid to, experi- 
 ence has shown, as it advanced and grew, that earlier methods were in 
 some respects deficient — that the first ideas were not always the best — 
 that time has developed not only the necessity, but the means of 
 improvement. Is there an industry to which that does not apply? 
 Can there be? Can any man undertake to say that the time will ever 
 come when the oldest handicraft will have reached a point at which 
 improvement is impossible? I fancy that no man who has a common 
 acquaintance with the history of his race will venture to assert such a 
 conclusion. Suppose it is true that the number it was estimated might 
 be taken from the seal-herd without harming it, had proved too great — 
 suppose it was true that in the manner of taking them the best pos- 
 sible manner is shown by experience not to have been observed and 
 that improvements are needed, is there any doubt that they will be 
 adopted? May not the interest and intelligence of the nation which, 
 with such sedulous care, has managed this industry during the short 
 period since 1869 when they began, make it certain that the improve- 
 ments will take place? Are the difficulties that are suggested difficul- 
 ties that cannot be overcome?' Is it like the killing of the female seal 
 in the water, — something that cannot be helped if you are to kill seals 
 there at all? Very far from it. Therefore, I might well dismiss this 
 suggestion of the accountability of the management on the Islands for 
 a part of the decrease with the single remark : — Granted that experience 
 has taught us better intelligence, and that some things must be cor- 
 rected which are easy of correction, what has that to do with. the 
 certain and inevitable means of extermination with which we are deal- 
 ing in this case? It almost needs an apology for carrying this enquiry 
 any further; and it is only because I am not willing to leave anything 
 that I conceive to be wrong — without allusion. 
 
 Now, what are the points in the management on the Islands which 
 are claimed by my learned friends to have been mischievous in the 
 past? They are two. They say, we have killed too many male seals. 
 The draft that we set out with of 100,000 is too great. You will remem- 
 ber that the Statute authorises the Secretary of the Treasury at any 
 time to restrict it, if it is found that they are taking too many. Ton will 
 remember that under the Orders of the Secretary in 1890, the number 
 was restricted to 22,000; and, therefore, it is perfectly plain that, if 
 any restriction is necessary for the preservation of this race, it will be 
 made. The United States here is not struggling for the privilege of 
 prior extermination, because that would be quite in their power without 
 any license at all. 
 
 The second objection is that in the manner of driving the seals, at 
 times I will allude to presently, they have been injured; those that are 
 not killed have been so injured as to affect the reproductive power of 
 the race, and so to diminish the birth rate by affecting the opposite sex 
 from that which is exposed to pelagic sealing. 
 
 If that were true it does not touch the question of extermination at 
 all. It simply shows that we have somewhat hastened it by ill-advised 
 conduct which it is to be presumed will certainly be checked and be 
 corrected if the race can be preserved. But there is no just foundation 
 for that assertion. It stands principally upon the statements of a gen- 
 tleman about whom more has been said than would have been said if 
 he were here present to be examined orally, who has been promoted in 
 this case by my friends to the office of Professor, — a gentleman who haa 
 
256 ORAL ARGUMENT OF HON. EDWARD J. PHELPS. 
 
 given considerable attention to this subject, who has written much and 
 said more, and who undoubtedly knows a good deal about the subject 
 and has been regarded as an authority. 
 
 But before I come to consider the only point on which we have any 
 criticism to make upon Mr. Elliott's deliverances upon this subject, 
 which are all in favor of our contention, except on this one topic, let 
 me say that we can well afford to accept this gentleman at the estimate 
 put upon him by my learned friends on every point but this; we do not 
 need his corroboration, but we have it very emphatically, for all it is 
 worth, on every point almost, connected with seal life which we are 
 contending for, except this. 
 
 Now, as to the number, my friends have endeavored to show that the 
 American average on the Pribilof Islands, of 100,000, was a great deal 
 larger than the Eussian authorities had deemed safe. To begin with, 
 what if it was? What constitutes the Eussians a particular authority? 
 The reference to the average which Eussia, in the early period, before 
 they began to discriminate, when they were killing in an exterminating 
 way, that is to say killing without any reference to whether they were 
 males or females — does not prove anything. It was not until 1847, as 
 the British Commissioners admit, that the present system of discrimi- 
 nation was begun. It has been followe'd ever since. 
 
 After that, between 1850 and 1867, it will be found from the evidence 
 that the number of skins they took, depended on the markets of the 
 world. Of course they could not overstock the market without depre- 
 ciating the returns, instead of increasing them. Bancroft, the historian 
 that is referred to in the British Case so frequently, — I read from the 
 footnote to the United States Counter Case page 73 — says : 
 
 In 1851, 30,000 could be killed annually at St. Paul Island alone, and in 1861 as 
 many as 70,000, without fear of exhausting the supply. 
 
 The figures from 1860 to 1867, given in the British Case, are shewn 
 in the United States Counter Case at pages 71 to 73, to be incorrect. 
 What are they ? They say for 1861, 1862, 1863, 1864, 1865, 1866, 1867,— 
 so many; the last five being estimates — round numbers, and as to 4 
 of them an interrogation mark is put against them by the Commission- 
 ers, which indicates that they are open to question — they are^rather 
 suggested. Then in Sections 777 to 779 of the British Commissioners 
 Eeport, you see how these figures are reached. To get those of 1861, 
 they took Elliott's totals for the years 1842 to 1862 and subtracted 
 Bancroft's totals from 1842 to 1861, and the difference they call the 
 figures of 1861. But what does Elliott himself say about those totals 
 of his ? At page 165 of the Census Eeport he says : 
 
 I now append a brief but significant extract from Teohraneniov — significant sim- 
 ply because it demonstrates that all Russian testimony, other than Veniamiuov's, 
 is utterly self contradiotori/ iu regard to the number of seals taken from the Pribylof 
 Islands. Techmneniov first gives a series of tables which he declares are a true 
 transcript and exhibit of the skins sold out of Alaska by the Russian-American 
 Company. The latest table presented, and up to the date of his writing, 1862, shows 
 that 372,894 fur-seal skins were taken from the Pribilof Islands, via Sitka, to the 
 Russian markets of the world, in the years 1842-1862, inclusive ; or giving an average 
 catch of 18,644 per annum (p. 221). Then further on as he writes (nearly one hun- 
 dred pages), lie stultifies Ms record above quoted by using the language and figures as 
 follows : "In earlier times more were taken than in the later ; at present (1862) there 
 are taken from the island of St. Paul 70,000 annually without diminishing the num- 
 ber for future killing". Further comment is unnecessary upon this author, who 
 thus writes a history of the doings of the Russian-American Company. 
 
 The bottom, therefore, of the British Commissioners computation 
 derived from Mr. Elliott, falls out upon the testimony of Mr. Elliott, 
 who says that it is not in the least reliable. The United States show 
 
ORAL ARGUMENT OF HON. EDWARD J. PHEDPS. 257 
 
 that the number of seals killed in that year, 1861, was 4=7,940, and in 
 proof of this they have published a letter from the Chief Manager of 
 the Russian American Colonies to the Russian American Company, 
 written at Sitka, October 14, 1861, containing a Report upon the oper- 
 ations of the Company for that year. The reference for that is the 
 United States Counter Case, page 195. One would suppose that was 
 satisfactory evidence of the number killed by the Company. He says — 
 this is an extract of course : 
 
 In the course of this year — 
 
 that is 1861; the date of the letter is October 14th 
 
 In the course of this year 47,940 seal skins hare heen taken from the islands of 
 St. Paul and St. George, of which number 24,943 salted, 3,000 bachelors, dried, and 
 2,500 greys have to be sent to New York; and 12,000 dried skins will now be sent by 
 the ship Czaritza to Croustadt. 
 
 The British Commissioners, in this extraordinary method of compu- 
 tation, make the figures for that year 29,699. The Manager of the 
 Company informs us that it is 47,940. 
 
 Sir Charles Russell.— One is shipped from the island, and the 
 other may be killed on the island. The two figures are not inconsistent. 
 
 Mr. Phelps. — Why not? He describes what had become of all 
 these — where they are all spnt. They are all sent to market. 
 
 Sir Charles Russell. — You have been speaking yourself of not 
 glutting the market. 
 
 Mr. Phelps. — They are all sent to market. They are not only killed, 
 but sent to market; and they only shew the fallacy of figures that are 
 arrived at by taking one unreliable and unproved sum, and subtracting 
 it from another unreliable and unproved sum and taking the difference 
 as the basis. 
 
 At Section 779 of the British Commissioners Report is the authority 
 for the years 1862 to 1867. That is their figures. Most of them they 
 have marked with an interrogation point, as I said before. They by no 
 means undertake to vouch them ; — I am not to be inferred as saying 
 that they misrepresent this, because they say themselves that these 
 figures both inclusive, have been filled hypothetically by Elliott. They 
 say: 
 
 The figures for the years are therefore far from satisfactory. 
 
 Those figures of course disappear, because in the first place the Com- 
 missioners say themselves that they are unsatisfactory : they appear, 
 in the next place, to be based upon a hypothesis, and the man who 
 invents the hypothesis, Elliott, says they are unreliable. They disap- 
 pear into the air. 
 
 We have put translations and facsimiles of the official Correspond- 
 ence of the American Company consisting of Reports from the wit- 
 nesses, and orders to the managers, in the Counter Case at pages 195 
 to 199, and at page 429. 
 
 I will read the Report for 1862 — we have seen what 1861 was. This 
 is an extract. Itis the Reportof the Chief Manager at Sitka. He says: 
 
 In spite of the great slaughter of seals on St. Paul and St. George they are every 
 year occupying more space with their rookeries; and I therefore permitted the man- 
 ager to take 75,000 skins on the former island, instead of 50,000; and on the latter 
 5,000, an increase of 2,000. Seeing now, however, that the demand for sealskins 
 for New Tork does not go beyond 20,000, I will alter this arrangement, and Instruct 
 him to prepare 25,000 salted sealskins and 20,000 dried on St. Paul and not to take 
 more than 3,000 on St. George, as heretofore. The sealskins remaining over cannot 
 spoil, as they are thoroughly salte4 
 
 B S, PT XV 17 
 
258 ORAL ARGUMENT OF HON. EDWARD J. PHELPS. 
 
 What becomes, I should like to know, of the suggestion that in these 
 years the Eussians found it necessary to take fewer seals than the 
 United States took afterwards? This is 1861 and 186l>. What are the 
 records for the following years? In 1863 it was 70,000. I refer to the 
 United Stales Counter Case pages 195, 196, 197 and 199. They are 
 taken from the original letters of the managers of these Companies 
 which are there given. I read in this abbreviated way to save lime, 
 and to present results instead of wading through language. You will 
 find the letters there. 
 
 1863: 
 
 70,000 
 
 ( U. S. Counter Case, p. 195) 
 
 1864: 
 
 70,000 
 
 ( - - - p.196) 
 
 1865: 
 
 53,000 
 
 (- - - p.197) 
 
 1866: 
 
 53,000 
 
 ( - - - p. 197) 
 
 1867: 
 
 75,000 
 
 ( — — - p. 199) 
 
 The British Commissioners suggest that the Russians were honest 
 enough, as they were about to cede the business to the United States, 
 to take a large number of seals the last year notwithstanding it might 
 be a detriment to the islands. That is not a very respectful suggestion 
 concerning a Government like Eussia, and certainly is not warranted 
 by any evidence; but in the United States Counter Case page 199, 
 I>r° 15, that such is not the cause of the increase, is shewn. Then the 
 Eussian average in the late years of their control, (after tbey began to 
 discriminate so that the herd was in a normal condition), reached 
 70,000 skins that were taken ; and it appears that more could have 
 been, and would have been taken, except that they were kept down by 
 the exigencies of the market, the want of demand. 
 
 In 1868, in the chaos that took place in the absence of law, there 
 were 240,000 seals killed. That is shewn by Mr. Morgan's testimony 
 in the United States Case, Appendix Volume II, page 63. And in 
 1869, the following year, after the government had gotten hold of their 
 property and began to control it the amount was 85,000. The number 
 of seals killed on the Pribilof Islands from 1870 to 1889 for all pur- 
 poses, (including those pups killed for natives' food and the few seals 
 that died during the drives) is given in the United States Counter 
 Case, pages 425 to 428; and the total number is 1,977,337, being an 
 annual average of 98,857. That is what we took from the island before 
 the take was restricted by orders of the Secretary of State or under 
 the operation of the successive arrangements of the modus vivendi. 
 There is what the evidence shews upon this point. 
 
 Then it is said that there were warnings to the United States Govern- 
 ment that the killing of 100,000 seals annually was too great — that our 
 officials, some of them, made known to the Government that too many 
 male seals were being killed ; and they quote Daniel Webster, an excel- 
 lent witness, properly relied on by both sides, who says that formerly 
 there would be an average of 38 cows to 1 bull — now they will not aver- 
 age 15. 
 
 Let us see from Mr. Webster's afSdavit — his observation was very 
 large — what he does say about it. You may take a casual expression 
 or a line without its context and get a very erroneous impression. The 
 reference to this is page 179 of the 2nd United States Appendix. 
 What I am reading is a quotation. He says: 
 
 There was never while I have been upon the islands any scarcity of vigorous bulls, 
 there always being sufficient number to fertilize all the cows coming to the islands. 
 It was always borne in mind by those on the islands that a suflScient number of males 
 must be preserved for breeding purposes. . . The season of 1891 showed that male 
 seals had certainly been in sufficient number the year before, because the pups on 
 the rookeries were as many as should bo for the number of cows landing. , , J^hen, 
 tQO, there was a surplus of vigorous hiiUa in 1891 it/l^Q could obtain nq cqwa, 
 
ORAL ARGUMENT OP HON. EDWARD J. PHELPS. 259 
 
 That is Mr. Webster's evidence. 
 
 Then they cite Captain Bryant. The British Commissioners quote 
 Captain Bryant. It is very remarkable how full the British Commis- 
 sioners Eeport is, of references to what is said, often, by unknown men; 
 to letters, often, the writer of which is not given ; to letters or to .persons 
 as in this case where the author is given, but the substance only is 
 stated as understood by the Commissioners, without any context; the 
 Report is full of that sort of evidence, which every one who has ever 
 had any dealing with evidence knows is the most likely, of any in the 
 world, to be mistaken. It is hearsay, excluded as evidence, under the 
 Common Law. Why? Simply because human experience shews that 
 you cannot get hearsay correctly. You can get what is said to be 
 hearsay, but the moment you undertake to resort to hearsay evidence, 
 you are utterly at sea. Mr. Foster suggests that I am wrong in respect 
 to this quotation, and I am very happy to make the correction. In this 
 instance this is quoted from Captain Brya,nt's statement, — I was wrong- 
 as far as this is concerned. The context, however, shews that when 
 you get at the context that is not what Captain Bryant means — that is 
 not what he says. 
 
 Sir Charles Uxtssell. — Would you kindly give the reference? 
 
 Mr. Phelps. — It is our House Executive Document, Ko. 83, iith. Con- 
 gress, page 17.S. 
 
 Sir Charles Kxtssell. — Where is it cited? 
 
 Mr. Phelps. — At page 69 of the Counter Case. This is not referred 
 to by the British Commissioners. Captain Bryant recommends, in 
 October 1875, that for two years only the killing be reduced to 85,000. 
 This is omitted from the British Commissioners Eeport. Then in his 
 sworn testimony before a Congressional Committee in the year 1876, 
 his views on this subject are brought out, and this is cited in the United 
 States Counter Case page 71. This is what he says: 
 
 In tlie season of 1868, before the pvohibitory law was passed and enforced, numer- 
 ous parties sealed on the Islands at will and took about two hundred and fifty 
 thousand seals. They killed ]iiostly alt the product of 1866-'67. In making our 
 calculations for breeding seals we did not take that loss into consideration, so 
 that in 1872-'73, when the crop of 1866-'67 would have matured, we were a little 
 short. These seals had been killed. For that reason, to render the matter doubly 
 sure, I recommended to the Secretary a diminution of 15,000 seals for the two years 
 ensiling. I do not, however, wish to be understood as saying that the seals are all 
 decreasing — that the proportionate number of male seals of the proper age to take 
 is decreasing. 
 
 Q. The females are increasing? 
 
 A. Yes, Sir; and consequently the number of pups produced annually. 
 
 Q. It looks, tlien, as if the males ought also to incre.ise? 
 
 A. I think that number of 100,000 was a little more than ought to have been begun 
 with. I think if we had begun at 85,000 there would have been no necessity for 
 diminishing. On the other hand, I think that within two years from now it could 
 be increased. 
 
 Now it appears that all that Mr. Bryant meant (and this is his expla- 
 nation to the Committee, not his evidence in the case), was this— he 
 meant to say that the year 1868 when 240,000 had been killed had so 
 reduced the herd that he thinks it would have been safer to have begun 
 at 85,000 instead of to begin at 100,000; but that in two years after it 
 could have gone to the larger figure. And in section 818 of the British 
 Commissioners Eeport, quoting, they say: 
 
 Bryant states that this year (1877) tliere was evidenfincrease in the number of 
 breeding males. He estimates that there were about 1,000,000 breeding seals on the 
 islands, as against 1,300,000 in 1869. 
 
 Mr. Elliott, who was on the Islands from 1872 to 1876 makes no refer- 
 ence to the gap in certain classes of males, Avhich Captain Bryant alone 
 
260 ORAL ARGUMENT OP HON. EUTWARD J. PHELPS. 
 
 appears to have noticed. The British Commissioners in paragraph 822 
 of their Report say that Elliott in the same Eeport — that is the Census 
 Eeport of 1881 — says that the breeding rookeries have been gradually 
 increasing since 1 857 
 
 Sir Chaklbs Eussell. — What year is that in? 
 
 Mr. Phelvs.— Elliott's Census Eeport of 1881. 
 
 Sir Chakles EtJSSELL. — You are passing 1872, 1873 and 1874? 
 
 Mr. Phelps. — Yes. 
 
 Sir Charles Eussell. — Very well. 
 
 General Foster. — And 1876. 
 
 Mr. Phelps. — I have to pursue this subject a little further, Sir, before 
 I have done with this topic. I shall not be long upon it, but I am so 
 much fatigued, and the hour of adjournment has arrived, that I shall 
 ask to be allowed to defer my further observations till to-morrow. I 
 may say I am very confident that I shall finish all the observations I 
 have to trouble you with, to-morrow. 
 
 [The Tribunal thereupon adjourned till Friday, the 7th of July 1893, 
 at 11.30 a. m.] 
 
FIFTY-SECOND DAY, JULY 7™, 1893. 
 
 Sir Charles Etjssell. — Before my learned friend resumes Lis argu- 
 ment, Sir, I want to make a correction in point of fact. You will recol- 
 lect a discussion that occurred some days ago (I think it was also referred 
 to during the argument of my learned friend) about the map ISTo. 98 in the 
 schedule of maps and described as the "Map of 1822 with additions to 
 1823", — that was stated by some one on our side originally, and I believe 
 I repeated the statement, that it came from the British Museum. Well, 
 that turns out to be inaccurate. It is a map in the possession of the For- 
 eign OfQce in London and is here now, and I produce it to my learned 
 friends. It is a matter of no importance; but we wish to be correct in 
 our statements. 
 
 The President. — It is the Arrowsmith map ? 
 
 Sir Charles Eussell. — Yes; it is described here as, "by Arrow- 
 smith, Hydrographer to His Majesty, 1822", and in print underneath, 
 "Additions to 1823". There the matter ends. 
 
 The President. — They are printed or engraved editions'? 
 
 Sir Charles Eussell. — Yes ; printed or engraved additions. There- 
 fore, showing that though published originally in 1822, there was a second 
 edition in 1823. 
 
 The President. — We shall be pleased to see the map. 
 
 Sir Charles Eussell. — Certainly. This is one side of it, but it is the 
 important side. You will see "Behring Sea" is not marked. 
 
 Now, you will recollect that yesterday my learned friend produced 
 and dwelt for some time upon a certain Table of figures, working out or 
 profiessing to work out certain mathematical results. You will recollect 
 that Table of figures which was handed in. I ought to tell the Tribunal 
 that my learned friends did not furnish us with copies of that document 
 beforehand; and my reason for mentioning that fact is that, if they had, 
 we should have been prepared by this time to offer certain criticisms to 
 which we think it is open. It has been examined by persons who are 
 more competent than I profess to be, because I do not, any more than my 
 learned friend, profess to be a mathematician; we conceive it is based 
 on false assumptions; but even on those assumptions, it is not worked 
 out correctly. And, therefore, we claim the right respectfully to put in 
 black and white, as my learned friends have done, a criticism on this 
 Table. The Tribunal will then judge what weight is to be attached to 
 the original document, as well as to the criticisms upon it. 
 
 The President. — You mean the calculation. This was no new docu- 
 ment, but only a calculation. 
 
 Sir Charles Eussell. — And a calculation, as we say, which is 
 inaccurate. 
 
 The President. — That is simply a matter of arithmetic. 
 
 Senator Morgan. — And it only refers to matters that are in the Case 
 and Counter Case. 
 
 Sir Charles Eussell. — We deal with the document that they have 
 handed in and point out, Sir, the errors that we conceive are to be 
 found in it. 
 
 261 
 
262 ORAL AKGUMENT OF HON. EDWARD J. PHELPS. 
 
 The President.— There can be no objection to any error being rec- 
 tified, I should think. 
 
 Sir Charles Eussell. — Of course, we should propose to hand to 
 my learned friends a copy of whatever figures or criticisms we put 
 down before handing it in to you. 
 
 Now, only one other thing; my learned friend said yesterday that I 
 had, in my criticism which I addressed upon the figures, lost sight of 
 the geometrical progression that would apply to the consideration of 
 this question. I am not much concerned to defend myself; but I want 
 to point out that I was dealing with the question of whether pelagic 
 sealing could have occasioned the great decrease said to have been 
 manifested in 1884; and, for that purpose, it was not necesary to con- 
 sider the question of geometrical increase, because these animals do not 
 begin bearing until they are three years of age. That is all I meant, 
 and before the 3 years, before 1884, the amount of pelagic sealing was 
 almost nil. 
 
 The President. — There is no question of the propriety of bringing 
 in the geometrical progression as Mr. Phelps did. 
 
 Sir Charles Uussell. — There are two sides of that account, Sir — 
 that is a criticism — only one of which has been looked at by my learned 
 friend — there is a debit and a credit side. 
 
 The President. — As to the paper you propose to hand in after you 
 have been in communication with your friends on the other side we 
 will take it and see what it is and reserve to ourselves the right of 
 determining what use is to be made of it. 
 
 Sir Charles Russell. — Certainly. 
 
 The President. — Now, Mr. Phelps, will you please to resume your 
 argument and continue after your own plan, and we shall be pleased to 
 hear you. 
 
 Mr. Phelps. — In respect of the map which my learned friend has 
 properly produced, since it has come into their possession, I haveVinly 
 to repeat the observation I made before, and which was substantially 
 made by Sir Richard Webster, that this map, from its date, could not 
 have been in the possession of the negotiators of the American Treaty 
 and that it is extremely improbable that it should have been In the 
 possession of the British negotiators. 
 
 With regard to the table of figures submitted yesterday to which 
 my learned friend refers, I have nothing further to say. The document 
 will vindicate itself upon examination. If it does not vindicate itself, 
 it would be quite impossible to set it up, and I have no fear of any 
 criticism that it will be in the power of any one upon the facts of this 
 case to make. 
 
 As to the other point my learned friend refers to. 
 
 I do not know that I quite comprehend what he means to say. If he 
 only means that if the females that were killed in the water were unpro- 
 ductive females who never could have any young, I quite concur with 
 him that the ravages of pelagic sealing would then become slow and 
 that would be a question which this case has not presented. But the 
 objection to it on economical grounds, aside from any question of 
 humanity is that every female that is killed is not only the probable 
 immediate mother, of young, but the future mother of young to an 
 extent only bounded by the age of the animal. 
 
 Now I return, Sir, to the subject I was considering yesterday at the 
 time of the adjournment, and to which I am afraid I am giving more 
 time than it justifies, because I think it is all sufficiently answered by 
 the suggestion I have already made, that even if it were found to be true 
 
ORAL ARGUMENT OF HON. EDWARD J. PHELPS. 263 
 
 that to some extent on the islands there had been a miscalculation, an 
 overdriving, or anything else which experience shows was not advisa- 
 ble, it is to be presumed, and it is perfectly certain that would be cor- 
 rected, as it is quite in the power of the Government to correct it, and 
 that it does not at all enter one way or the other into the question of 
 the consequences of pelagic sealing, which are quite independent. It 
 simply suggests if it is true, though we have taken the pains to show 
 it is not brue, that the conduct of the American authorities has helped 
 towards the decrease that now exists, and is conceded to exist. I had 
 considered yesterday the first proposition that is made that too many 
 seals have been killed, and I was passing over the evidence as fast as 
 I could on the subject of the decrease, and of the warnings that are 
 said to have been given to the American Government by its own 
 agents on this subject. Eesuming that, I referred to Captain Bryant, 
 the first witness called on the other side. Dr. Mc Intyre is another 
 witness relied upon, and when you examine his testimony you find in 
 respect to this, that it shows no such thing. Dr. Mc Intyre is cited by 
 the British Commissioners. He was the superintendent upon the 
 Islands, and he says the number of seals have decreased since 1882. 
 He did not mean from 1882. All the evidence in the Case is to the 
 contrary of that. It was very much later. It was as late as 1889. In 
 1884 and 1885 there was a slight decrease, but the significant decrease 
 I am talking of, that would attract attention, was much later than that. 
 In support of that, passages are cited from his Congressional Eeport 
 in 1889, entitled "Fur-seal fisheries" and the moment the language 
 is read it will be seen that Dr. Mc Intyre does not mean any such 
 thing as is ascribed to him. He is referred to at section 830 of the 
 British Commissioners' Eeport, and he says at page 116 of the Con- 
 gressional Eeport of 1889. 
 
 From 1870 to 1882 there was a constantly increasing number before the beginning 
 of the annual marauding, and the iucrease was apparent eacli year. The bounda- 
 ries of the rookeries were being constantly extended. The lanes through the rook- 
 eries were in many cases completely closed before 1882. There was no question at that 
 time as to the increase, but since 1882 the lanes through the rookeries have again 
 opened and grown wider from year to year. During the last two years bachelor 
 seals pass through these lanes as they did not formerly. 
 
 He was absent from the Island, as is shown in the United States 
 Case Appendix, 1883, 1884 and 1885. He knew nothing about it and 
 could have known nothing about it and does not profess to have known 
 anything about it. When he says since 1882, he does not mean to say 
 beginning with 1882. He is writing in 1889. Another quotation from 
 Dr. Mclntyre's testimony is found in the Appendix to the United 
 States Argument page 293 : 
 
 I was, therefore, always alert to see that a due proportion of breeding males of 
 serviceable age was allowed to return to the rookeries. This was a comparatively 
 easy task prior to 1882 but it became from year to year more difficult as the seals 
 decreased. No very explicit orders were given on this point till 1888. 
 
 There is the same observation. 
 
 In the affidavit of Dr. Mclntyre in the 2nd volume of the United 
 States Appendix, page 45, he uses this language, and this is really his 
 judgment on the subject: 
 
 That from the year 1880 there was an expansion of the areas of the breeding 
 grounds and that in the year 1882 they were as large as at any time during my 
 acquaintance with them; that during the three years following 1882, namely, 1883, 
 1884, 1885, 1 was not upon the Islands; that upon my return to the Islands in 1886, 
 I noticed a shrinkage in the breeding areas but am unable to indicate the year of 
 the period of my absence in which the decrease of the breeding seals began. 
 
264 ORAL ARGUMENT OF HON. EDWARD J. PHELPS. 
 
 These are the only witnesses on the Island before 1889 who are relied 
 upon by the British Government to sustain the assertion that too many 
 seals were killed on the Island. 
 
 The President. — Is that the same witness, Dr. Mclntyre, you were 
 reading from in the British Commissioners Reports. 
 
 Mr. Phelps. — Yes, a witness of unquestionable authority. All I 
 desire to find out is, what he means to say. In 1890, the Treasury 
 Agents on these Islands were Mr. Goff', Mr. IsTettleton, Mr. Lavender, 
 and Mr. Murray. They were new men, none of them having been 
 there before 1889, and it was at that time Mr. Elliott appears on the 
 scene. Passing Mr. Elliott fbr the moment, see what the others say. 
 Mr. Murray, in his Official Report cited in the British Appendix, Vol. 
 3, page 19, expresses the opinion that the seals were diminishing. 
 That is in 1890, because of the killing oft' of male seals whereby none 
 were left for use on the breeding grounds. In the same Report, he 
 expresses the further opinion that the seals had been steadily decreas- 
 ing since 1880. Of course, this could not be based on any personal 
 knowledge at all ; but in 1892, with larger experience, Mr. Murray tes- 
 tifies under oath in these words : 
 
 During my observations in 1890 I was led to believe that tbe decrease was partly 
 due to the lack of bulls on the breeding roolieries, and I so reported to Agent Goff. 
 
 We shall see pretty soon how he was led to believe and by whom : 
 
 But after thoroughly investigating the subject the next year by daily visits to the 
 breeding grounds of the several rookeries, where I saw nearly every cow with a pup 
 by her side and hundreds of vigorous bulls without any cows, I came to the conclu- 
 sion that there was no truth in the theory, and that it was the cow that was scarce 
 and steadily decreasing. , 
 
 It was Mr. Elliott, who came there with the prestige of being an 
 authority on that subject; who was sent there by the Government; 
 who had formerly visited the Islands and written on the subject, that 
 put it into the head temporarily of Mr. Murray and one or two others 
 that this theory he set up (and we shall see why pretty soon) was true. 
 And I may remark in passing", that there is abundant proof of the 
 inaccuracy of Mr. Elliott's observations, because Mr. Murray found on 
 the breeding-grounds the offspring of the various animals that Mr. 
 Elliott laments with much rhetoric were wanting. Mr. I^Tettleton vis- 
 ited the Islands for the first time in 1889, and his report for 1890 appears 
 in the British Case; and he confirms the remark I made just now. "I 
 do not feel called upon to go into details with regard to this," he says, 
 '" in view of the forthcoming Report of Professor H. W. Elliott," but in 
 July, 1892, after he had been there long enough to have an opinion of 
 his own and after he had probably come to be better acquainted with 
 Mr. Elliott. (It is in the United States Case and Appendix, Volume 
 II, page 75:) 
 
 During my stay on the islands I have never seen a time during the breeding sea- 
 son when there has not been a number of large, vigorous bulls, young bulls hanging 
 about the borders of the rookeries watching for an opportunity to get a position 
 of their own. 
 
 Then Mr. Lavender is referred to, another of the recent Agents; and 
 he undoubtedly was under the influence of Mr. Elliott's activity. He 
 says: 
 
 The writer was surprised when he first visited the rookeries to find no young bull 
 seals upon them; — this looked stranse to him, and he began to look up the cause, 
 and it occurred to him that the constant driving of young males and the killing of 
 all the 2, 3, 4, and 5 years old. 
 
 — what he means by that you can judge as well as I can; that is to say, 
 you cannot judge at all. Mr. Goli' we shall see afterwards. 
 
ORAL ARGUMENT OF HON. EDWARD J. PHELPS. 265 
 
 I have not yet mentioned Mr. Elliott; and except so far as Mr. Elli- 
 ott's Eeport is to be relied upon, there is absolutely no evidence (aud 
 we shall cite a great deal of evidence to the contrary) that there was a 
 diminution of the sort he undertakes to describe on those Islands which 
 could have had to do with the decrease of the birth-rate. 
 
 Now, let me come to this matter of driving; and I have still to post- 
 pone the consideration of the only witness that really supports it, Mr. 
 Elliott. His theory is absolutely invented by himself, — nobody ever 
 heard of it before. He cites no authority for it, except a passage from 
 one of the Eussian writers, which, as I shall show, is mistranslated and 
 reads exactly the other way. There are two passages in Mr. Elliott's 
 Eeport translated from the Eussian, and in both of them it appears not 
 merely that they are erroneously translated, but that the sense of the 
 passage translated is exactly the opposite of that which is given as his 
 translation. The hauling grounds are situated, as appears, at a dis- 
 tance of 1^ to 2J miles; the average distance is about IJ miles; the 
 Eookery Charts in the United States map show this. Before pelagic 
 sealing obtained any dimensions, the killable seals were on the hauling 
 grounds, that is to say males from 2 to 5 years of age, — those males 
 that Mr. Lavender appears, by his statement, to have thought should 
 not have been killed. He does not tell us what you could kill if you 
 do not kill those, if you killed any, and the evidence shows that less 
 than an average of 20 per cent of these driven up were turned back. 
 Mr. Elliott's theory is that numbers were injured by this re-driving aud 
 being allowed to go back. That is the point I now come to. 
 
 Up to 1890 there was no re-driving, and there is not a word of evi- 
 dence to show that there was. None but a small percentage in the 
 drives, when a superabundance of seals would go up, and some might 
 come back again, but not in sufficient number to be appreciable. It 
 is said they were turned back, and taking the largest construction 
 of this evidence, as I desire to do, and not to minimise it, you may 
 argue or infer that perhaps if somefewwent back from the drives tbey 
 might be driven over again, but whether they were not all ultimately 
 Idlled is of course quite a different question. 
 
 Till 1890, the seals were sufficiently abundant not to require this sec- 
 ond driving, and the driving which Mr. Elliott complains of never took 
 place till 1890, and that the evidence is conclusive to show. jSTow sup- 
 pose that by the driving in 1890 — and that is another conjecture that 
 is utterly without foundation — suppose that some of these re-driven 
 seals were injured by that process in 1890, when would that make its 
 appearance in the herd? Thej could not begin to be productive till 
 they were 5 or 6 years old — none could get on to the rookery and it is 
 not pretended that they could. If then these driven seals could begin 
 to be productive when 5 or 6 years old, it would be, of course, still 
 another year after that, if not 2 or 3, before the results of any failure 
 in re-productive capacity would make itself appreciable. It is per- 
 fectly evident, therefore, that this decrease, which everybody agrees 
 was to be seen there in 1890 and 1891, could not have come from any 
 abuse in the driving in the year 1890. The very earliest time and sea- 
 son, that if any such facts were true, they could manifest themselves 
 on the Island would be some years later. In 1890 the catch was stopped 
 on the 20th July by Mr. Goff, the United States Treasury Agent, 
 because he perceived they could not get the requisite number which 
 their contract allowed, and less than 22,000 skins were taken that year. 
 It is undoubtedly true that, in order to get 22,000 skins in the year 1890 
 there was more or less excessive driving, or re-driving — a method of 
 
266 OEAL ARGUMENT OF HON. EDWARD J. PHELPS. 
 
 driving that probably could not be carried on as a permanent thing 
 from year to year without mischievous results, but it had never takeu 
 place before, and the reason was, because there was no occasion for it. 
 It was the result of the scarcity that had been brought about by this 
 pelagic sealing and for which no other reason is suggested. 
 
 Mr. Justice Harlan. — What year is thaf? 
 
 Mr. Phelps. — 1890. I say no reason is suggested. I should perhaps 
 say that no reason is proved. There is a general talk by my learned 
 friends about the consequences of driving; but when you look into the 
 evidence to see when it took place, 1890 was the first time, and then it 
 stopped. 
 
 The President. — What was the allowance made by the Governmeut 
 for that year 1890? 
 
 Mr. Phelps. — I believe it was 60,000 — I believe that was the first 
 year it was changed. There was always a provision, you will remem- 
 ber in these leases, that the number allowed on the face of the contract 
 could be diminished by the Treasury Agent, and it was reduced. Gen- 
 eral Foster reminds me, to 00,000 by order of the Secretary of the 
 Treasury, and they were only able to get less than 22,000, so that less 
 than 22,000 was actually taken, though the Secretary's order would have 
 permitted them to take 60,000. 
 
 The witnesses that are relied upon on this subject of redriving, every 
 one of them, refer only to the year 1890, when the fact is not in dispute, 
 but when, as I have said, it could have produced no possible effect. 
 This is what Mr. Goff said, who stopped this, and I read from Volume 
 III of the British Appendix, part 111, page 16 : 
 
 We opened the season by a drive from the Reef Rookery, and turned away 83 1/2 
 per cent, when we ahoul:l have turned away 15 per cent of the seals driven, and we 
 closed the season by turning away 86 per cent, a fact which proves to every impartial 
 mind that we were redriving the yearlings. . . and that we were merely torturing 
 the young seals, injuring the fnture life and vitality of the breeding rookeries, to 
 the detriment of the lessees, natives and the Government. 
 
 In 1890 that was true ; that is what Mr. Goff reported to his Govern- 
 ment. 
 
 In his affidavit, Mr. Goif says, in the United States Case, Yolume 
 II, page 113 : 
 
 A few seals are injured by redriving (often confounded with overdriving and 
 sometimes so called), but the number so injured is inconsiderable and could have no 
 appreciable effect upon seal life throijgh destroying the vitality of the male. The 
 decrease, caused by pelagic sealing, compelled whatever injurious redriving has 
 taken place on the islands, as it was often necessary to drive every two or three 
 days from the same hauling grounds, which caused many seals let go in a former 
 "drive" to be driven over again before thoroughly rested. If a "drive" was made 
 once a week from a certain hauling ground, as had been the case before pelagic seal- 
 ing grew to such enormous proportions, and depleted the rookeries, there would be 
 no damage at all resulting from redriving. 
 
 Mr. Kettleton, another Treasury Agent, concurs in those views, 
 because in his deposition, United States Case, Volume II, page 76 
 he says : 
 
 The result of my observations of the methods of driving the seals from the haul- 
 ing grounds to the killing grounds is that a very small fraction of one percent of 
 the seals die from being overdriven or from being overheated in driving. 
 
 Something is said about Mr. Palmer, who had no knowledge of this 
 subject. He was there with Mr. Elliott, and partakes of the views of 
 Mr. Elliott that I shall examine later. 
 
 Qn the Eussian Islands, as the British Commissioners themselves 
 said, the driving was a great deal harder for the seals than on the 
 American. 
 
ORAL ARGUMENT OF HON. EDWARD J. PHELPS. 267 
 
 On Copper Island, 
 say tlie British Commissioners in section 706 — 
 
 on the contrary, tlie drives generally extend across the island, and are from three 
 to four miles long, very rough, and crossing one or more intervening steep ridges. 
 These drives must be much more trying to the seals than any now made upon the 
 Pribiloflf Islands. 
 
 We never heard from there or any quarter in this case that any 
 diminution had ever been noticed till the year 1892, when the pelagic 
 sealing commenced. 
 
 The statement of Mr. J. K. Moulton in the United States Case, page 
 72, volume II, is: 
 
 I am positive the reproductive organs of every one of the hundreds of thousands 
 of seals I have seen driven -were uninjured by their movements on land, and I am 
 further convinced this must be so from the fact that a seal when moving on land 
 raises himself slightly on the hind flippers, so that his reproductive organs are clear 
 of the ground. 
 
 In 1891 and 1892 the number of seals killed on the ground was 
 13,000 and 7,500 respectively. In neither of those years were year- 
 lings killed. All yearlings driven up were allowed to return to the 
 water. Mr. Macoun's evidence or statement in the report is gone into. 
 He witnessed part of one drive, which is all he claims to have known 
 anything about. And if you take the trouble to read it, I do not care 
 to spend much time upon it, you will see the consequences. 
 
 !N"ow let me refer to some few of the witnesses as rapidly as I can 
 out of the many witnesses on this subject of driving to be found in the 
 United States Case. 
 
 We have examined 44 witnesses on this point, who are men on 
 the Islands, employed there in one capacity or another, and knowing the 
 manner in which this takes place, in a business you will recollect, the 
 method or theory of which, is described by the Commissioners them- 
 selves as an ideal method. The only objection that is attempted to be 
 stated to it is the manner in which it was carried into eifect. Mr. 
 Bryant says — and this is in the Appendix to the Argument, page 235 : 
 
 The driving and killing of the bachelor seals was always carried on in the most 
 careful manner and during my stay upon the islands, there was practically no injury 
 caused to seal life by overdriving, and after 1873, when horses and mules were 
 introduced by the lessees to transport the skins, the seals were not driven as far, 
 killing grounds being established near the hauling grounds, and the loss by over- 
 driving was reduced to the fraction of 1 per cent. 
 
 Mr. Falconer, who was on the Islands from 1870 to 1875, says in his 
 testimony. — I cannot read it all : 
 
 The greatest care was always taken not to overheat the seals in driving them, and 
 when a seal was by accident smothered, the skin was removed and counted in the 
 number allowed to be taken by the lessees. There were not, to the best of my recol- 
 lection, twenty-five seals killed during any one season on St. George by overdriving. 
 
 Whenever the sun came out while a "drive" was in progress the driving at once 
 ceased, so great was the care taken not to overheat the seals. . . 
 
 I never saw or heard of a case where a male seal was seriously injured by driving 
 or redriving. 
 
 Certainly the reproductive powers were never in the slightest degree impaired by 
 these means. When we consider that the bulls, while battling on the rookeries to 
 maintain-their positions, cut great gashes in the flesh of their necks and bodies, are 
 covered with gaping wounds, lose great quantities of blood, fast on the islands for 
 three or four months, and then leave the islands lean and covered with scars, to 
 return the following season fat, healthy, and full of vigor, to go through again the 
 same mutilation, and repeating this year after year, the idea that driving or redriv- 
 ing, which can not possibly be as severe as their exertions during a combat, can afl'ect 
 such unequal vigor and virility, is utterly preposterous and ridiculous. 
 
 Senator Morgan. — Has any witness ever stated that, from his obser- 
 vation, there was any loss of virility in male seals ^ 
 
268 OKAL ARGUMENT OF HON. EDWARD J. PHELPS. 
 
 Mr. Phelps. — No, I am coming to that. I want to get in the testi- 
 mony of some of these witnesses, and then I will observe upon that in 
 connection with Mr. Elliott: 
 
 To show the wonderful vitality of the male seal, I will give one instance; 
 
 I do not care to follow that up. 
 
 Mr. Glidden who was on the Island from 1882 to 1885 — you will see 
 these Agents give different periods — in the Appendix to the Argument 
 at page 237, says : 
 
 The driving from the hauling grounds to the Icilling grounds was always con- 
 ducted with the greatest care; was done ;it nifjht or very early in the morning 
 slowly and witli frequent rests, so that the seals might not become overheated. 
 During the killing the merchantable seals were always carefully selected. No 
 females were killed, except, perhaps, one or two a season by accident, and the 
 remainder of the herd were allowed to return to the water or hauling grounds. 
 Very few seals were killed in a "drive", and the slcins of these were, in nearly every 
 case, retained and counted in the quota allowed to be taken by the lessees. The 
 number of seals killed in this way could not possibly have affected seal liie on the 
 island. I never saw or heard of a, case where a male seal was seriously iujured by 
 driving or redriving; and I do not believe that the virility of males driven was 
 destroyed by climbing over the rocks or affected in any way by driving. Certainly 
 the reproductive powers of male life on the islands were never decreased or impaired 
 by these methods. 
 
 D"^ Hereford the resident physician was there from 1880 to 1891, 
 covering the whole time in which the overdriving or re-driving must 
 have taken place, if it was to produce any effect that is yet noticeable, 
 and he says : 
 
 The methods employed in handling the drives are the same identically as of twenty 
 years ago. The same methods were observed when I first went to the Islands, and 
 were in vogue during the period that I lefurred to as an actual increase in seal life, 
 and have been continued up to the present times. There is nothing different, except 
 the enormous increase of vessels and hunters engaged in pelagic sealing in Behring 
 Sea. 
 
 Mr. Kimmel was the Government Agent on St. George Island in 1882 
 and 1883 ; and he describes the manner in which these seals were driven 
 and states (pausing to read it) substantially what those witnesses whose 
 testimony I have referred to say. 
 
 Krukoft', an Aleut resident on St. Paul Island ever since 1869, one of 
 the employes, says : 
 
 The driving is all done by our own people under direction of the chiefs and we 
 never drive faster than about half a mile in one hour. We very seldom drive twice 
 from one rookery in one week. . . 
 
 I never saw a seal killed by overdriving or by overheating; odd ones do die on the 
 drives by smothering, but their skins are taken by the company and are counted in 
 with the others. 
 
 Mr. Loud was the Agent from 1884 to 1889, and he says: 
 
 While I was on the islands I attended nearly every "drive" of the bachelor seals 
 from the hauling grounds to the killing grounds, — 
 
 — as it was his duty to do, — 
 
 And these "drives" were conducted by the natives with great care, and no seals 
 were killed by overdriving, plenty of time being always given them to rest and cool 
 off. A few were smothered by the seals climbing over each other when wet, but the 
 number was very inconsideraOle, 
 
 and so on. 
 
 D-^ Mclntyre was on the Islands from 1870 to 1882, and from 1885 to 
 1889 ; and he testifies further to the same purport with his testimony 
 that I read before, and I will omit reading it now. 
 
 D"^ Noyes was a resident physician on the Islands from 1880 to 1893; 
 and his testimony is to the same effect. 
 
ORAL ARGUMENT OF HON. EDWARD J. PHELPS. 269 
 
 Mr. Eedpath was the Agent from 1875 to 1893. 
 
 Mr. Wardmau from 1881 to 1885, and Mr. Webster from 1870 to 1893, 
 and still there. It would only be a wearisome repetition to read over 
 again the testimony of these witnesses, using slightly different language, 
 but conveying exactly the same ideas and stating the same facts. 
 
 What then does this whole charge of over-driving come to, aside from 
 Mr. Elliott, on all the evidence in this case ou both sides? On the one 
 hand, there is not a word of testimony to sustain it, but there is on the 
 other hand a vast body of testimony to the contrary. We have exam- 
 ined every agent and employ^ on the Island, and every official who was 
 there in a position to know, and there is no evidence that there was any- 
 thing objectionable in the manner of driving down to 1890, but it is all 
 to the contrary. Then how came it to pass that in 1890, an exception 
 arose as to the method of re driving and frequent drivings that had 
 never obtained before? Simply because from the ravages of pelagic 
 sealing, the animals were not to be obtained in any other way. So 
 that what is set up in answer to our complaint of the devastation 
 that this business has wrought is only the actual consequence of the 
 devastation itself. 
 
 Now take Mr. Elliott's theory, A few words on that, still conscious 
 that I have unduly dignified this branch of the case by the time I have 
 spent upon it; a few words may be usefully said about Mr. Elliott, who 
 has cut a figure in this case from the beginning that is altogether 
 disproportionate to any consideration he is entitled to. 
 
 I have nothing to say against him. Ton will remember, when we 
 began this hearing long ago, there was an application for Mr. Elliott's 
 Eeport. Had there been any attempt to suppress it? We had given it 
 to the British Commissioners w^hen at Washington, and they had it as 
 long as they wanted it. That shows there was no disposition to con- 
 ceal it. Why was not it printed? Not one in five of these Eeports — 
 nay, not one in ten — are printed. If we could put in the letter that 
 accompanied this from the Secretary to the Treasury, you would find 
 out why it was not printed. I cannot tell you and I cannot state the 
 reason without putting myself in a position I should quite decline to 
 occupy, by attempting to make a statement not warranted by any evi- 
 dence in the case, because there is no evidence. If the Eeport had 
 come in and become evidence in the case, so that we could reply to it, 
 all this would have been shown. 
 
 Mr. Elliott, whose knowledge on this subject I do not depreciate, is 
 far less of a man than my learned friends seem to have supposed. 
 They attach great importance to his having been appointed by the 
 Government, but of all the agents who have testified here, everyone 
 was appointed under an Act of Congress. He was not specially 
 appointed any more than anybody else. One of the advantages of a 
 republican form of Government, is that men of moderate qualities are 
 not excluded from public offices. On the contrary, that is one of the 
 advantages we enjoy. Some Governments are deprived of the valuable 
 services of that class of men. We are not. 
 
 The eminent jurist. Judge Swan, who throws some light upon the 
 subject, and Professor Elliott came into violent collision. Judge Swan 
 proceeds to refute all Elliott's science, depreciate his ability, and 
 denounce his motives; and if you take Swan's judicial estimate of the 
 man, he would disappear from the case at once. But as undoubtedly 
 Mr. Elliott would have something to say in reply to Judge Swan, I do 
 not consider the Judge's opinion conclusive. What was the trouble? 
 Mr. Elliott had been connected, as Judge Swan said— and I think he 
 
270 ORAL ARGUMENT OP HON. EDWARD J. PHELPS. 
 
 told the truth probably — it would not be respectful to assume of any 
 man with the title of Judge that he would say anything else — that 
 Mr. Elliott had been connected with the old Company. There was a 
 violent competition at Washington about the renewal of the lease, and 
 the new Company got it from the old, and Mr. Elliott's side was defeated, 
 and then immediately after — that is to say, within two or three months, 
 he made his appearance on the Islands. 
 
 Then what took place? For the first time he makes the discovery 
 that the virility of the herd was being destroyed by the business of 
 overdriving. He does not say it took place before 1890 ; he had not 
 beeu there for many years, and his Eeport shows, that when he was 
 there last, he could not speak in too high terms of the manner in which 
 the driving was carried on; but he seizes on this condition of thing in 
 1890, and makes it the basis of a violent attack. 
 
 Senator Moii&AN. — Does hisname appear in the Act of Appropriation 
 that authorized him to go out there? 
 
 Mr. Phelps. — I do not know. Sir, General Foster says that it was 
 an Act authorizing the appointment of an Agent. He was not partic- 
 ularly named. You would know better as to what the usual usage with 
 regard to a thing of that sort is than I should. 
 
 Mr. Justice Harlan. — He was appointed by the Secretary of the - 
 Treasury. 
 
 Sir Charles Eussell. — Yes ; he was not named. 
 
 Mr. Phelps. — Well, this discovery of Mr. Elliott was an attack on 
 the administration of the new Company that had got in. 
 
 You see what it is; a violent rhetorical attack upon the business that 
 the Company was carrying on. It is due to Mr. Elliott to say, in treat- 
 ing him fairly, that the method of driving that he saw there in 1890 
 was objectionable, as I have already admitted, and to that extent that 
 the Treasury Agent had to put a stop to it. But if that is all he had 
 said, he would have said only what we say now; but he starts the 
 theory of its effect upon the virility of the herd, ifow I answer Sena- 
 tor Morgan's question, if he will excuse me for having postponed it 
 until I could make it intelligibly. There is not another witness that I 
 know of, and I say that subject to correction, that ever pretended to 
 have made any such discovery. In order to give apparent currency to 
 it, Mr. Elliott cites this passage from the Russian writer Yeniaminof, 
 ati^age 203 of his Eeport; and this is the way his translation reads. 
 
 Nearly all the old men think and assert that the seals which are spared every year, 
 i. e., those which have not heen killed for several years, are truly of little use for 
 breeding, lying about as if they were outcasts or disfranchised. 
 
 What was the true translation 1 We have an official translation here, 
 if anyone desires to see it, by the French Foreign Office. 
 
 Sir Charles Eussell. — Is the original here? 
 
 Mr. Phelps.— Yes, certified by the French Foreign Office. This is 
 the correct translation. 
 
 Nearly all the old travellers think and assert that sparing the seals for some years 
 i. e. not killing them for some years, does not contribute in the least to their increase 
 and only amounts to losing them forever. 
 
 Veniamiaof makes no reference whatever to driving, and does not 
 say one word about any supposed effects of driving upon the repro- 
 ductive powers of the seal. 
 
 Sir Charles Eussell. — Have you the original, — the text of 
 Yeniaminof ? 
 
 Mr. Justice Harlan. — Is it in Eussian or French? 
 
 Mr. PHELPS, — Eussian, I believe. 
 
ORAL ARGUMENT OF HON. EDWARD J. PHELPS. 271 
 
 General Foster.— We have not the original here. 
 Lord Hannen.— Is not it that the effect of driving is such that it is 
 no use sparing their lives,— is not that the effect of it? 
 Mr. Phelps.— No, I will read it again. 
 Lord Hannen. — If you please. 
 Mr. Phelps — 
 
 _ Nearly all the old traTellers tliink and assert that sparing the seals for some years, 
 1. e. not killing them for some years, does not oontribate in the least to their increase 
 and only amounts to losing them forever. 
 
 What does he mean by that? What I was saying yesterday; by the 
 natural conditions of this herd you cannot keep up the number of 
 males;— nature does not keep up the equal number of males and 
 females, though beyond doubt an equal number are born into the 
 world. That was a question that was early suggested by the Presi- 
 dent, and which I endeavoured to answer yesterday. 
 
 If in polygamous animals there are as many females as males,in the 
 world, how comes it to pass, in a state of nature when nobody inter- 
 feres with them there are not as many females as males? That is the 
 question we are discussing. He was discussing the question of what 
 sort of policy it would be to stop killing and let them all grow,— let all 
 these males alone for a period of years. Let them all come to the 
 period of puberty. 
 
 The President.- He does not speak of the driven seals? 
 
 Mr. Phelps. — No, not in the least. He says, what observation 
 shows as to all, that you will not get any more males by that. It will 
 be the fittest that survive, and you will have the same coiidition of 
 things that you had before; in other words, you have lost those seals 
 that you might have taken without detriment to your herd. General 
 Foster reminds me this is to be found in the Counter Case, the full 
 translation. 
 
 If I had nothing to do to-day but to review Mr. Elliott's Report I 
 think I could make it a little entertaining. If you read his field-notes 
 (I will give you a specimen at pages 236 and 237) they will be found to 
 contain an ounce of observation to a pound of rhetoric. A scientific 
 observer would make field-notes out of doors, and put them down as a 
 basis for subsequent collation and analysis, — as statistics; but his 
 statistics are all rhetoric. For instance, and this is only a sample, on 
 June the 10th, 1890, of his field-notes, at page 236. 
 
 This unnatural action of the cows, or rather unwonted movement, has caused the 
 pups already to form small pods everywhere, even where the cows are most abundant, 
 which shadows to me the truth of the fact that in five days or a week from date, the 
 scattering completely of the rookery organization will be thoroughly done. 
 
 Sir Charles Extssell. — He goes on to say that it did not take place 
 until the 20th to the 26th of July, 1872. 
 Mr. Phelps. — I do not read all this : 
 
 It Is impossible not to- consider the question which this scene every moment 
 prompts — "what proportion of these old males which we see here now, overdone 
 and scant in number — what ratio of their number will live to return next year? — 
 and if they do all live to return, what manner of good will they be? — in many 
 eases will they be potent at all?" And again, not a single young bull to be seen on 
 the breeding grounds or at the breeding margins! Where are they coming from? 
 They, so conspicuous by their numbers and aggressiveness in 1870-74! Where is 
 the new blood which must take the place of the old and enfeebled sires before us? 
 already failing to meet the demands of the hour on every side and ahead of us ! 
 Where is it? 
 
 The only answer which my study of this season gives me is there is no new Woqi. 
 Not nature enougji left. 
 
272 ORAL ARGUMENT OF HON. EDWARD J. PHELPS. 
 
 Then lower down: 
 
 The poacher at sea has lent his aid since 1885 to this destruction. — 
 
 Sir Charles Bxjssell. — I think you ought to read the next; he 
 does refer to driving. 
 
 Mr. Phjslps. — Yes, I am willing; it was only to save time, and I 
 hope the Arbitrators will treat themselves to the very little entertain- 
 ment there is in this case of the amusing kind, by perusing some of 
 these field -notes. What my learned friend wants me to read is: 
 
 The club and effects of driving has destroyed it, slowly at first, but surely through- 
 out the last eight years ! 
 
 He had not been there ! 
 
 Sir Charles Eussell. — "And rapidly during the last three of this 
 period." 
 Mr. Phelps.— Tes. 
 
 And rapidly during the last three of this period — especially rapid last year and at 
 the present hour. 
 
 He had not been there, and not a living man had told him so. 
 
 Every man who was there swears to the contrary. 
 
 I could spend half a day reading this if it were material to show the 
 character of the man. He started on his theory, and like some orators, 
 gains in strength as he goes on; as he warms up to the subject he 
 becomes not only more eloquent but more tremendous in the reach and 
 force of his statement. 
 
 Sir Charles Etjssell. — I beg my learned friend's pardon, but he 
 made what I consider a very grave insinuation about Mr, Elliott, 
 namely, that he was attacking the new company because of his inter- 
 ests in the old Company. 
 
 The reason why I want that last passage read is this, the lease to 
 the new Company was in 1890 and in a passage I have read he does 
 not confine his complaint of mismanagment to the period of the new 
 Company at all because he says : 
 
 The club and effects of driving has destroyed it slowly at first, but surely through- 
 out the last 8 years. 
 
 Therefore going back to 7 years of the old Company. 
 
 And gradually during the last three of this period — especially rapid last year and 
 at the present hour. 
 
 I am rather surprised at that insinnation because my learned friend 
 Sir Eichard Webster distinctly stated in page 1623 of the report that 
 Mr. Phelps had undertaken that no comment was to be made on Mr. 
 Elliott's conduct attributing to him motives, or any comment except 
 what the report furnished. 
 
 Mr. Phelps. — 1 am not now saying anything but what Judge Swan 
 said who was the other witness, and I leave it to my learned friends to 
 settle between Judge Swan and Mr. Elliott, if it is of any importance 
 at all. It is altogether probable on the face of this report that Mr. 
 Elliott was willing at least that the Government should cut down the 
 profits of this Company by abridging the number of seals they might 
 take. But I do not care about it. We have not tbe least necessity to 
 discredit Mr. Elliott, because in every disputed point in the case but 
 this, he sustains the United States. contention as completely as all our 
 other witnesses do, so that in nine-tenths of this case Mr. Elliott 
 becomes our witness. We do not need him and do not call him, but 
 we accept his statements when put in by the other side. And, there- 
 
OEAL ARGUMENT OF HON. EDWARD J. PHELPS. 273 
 
 fore, it is only on this point in which. Mr. Elliott is completely answered, 
 when we point out that the redriving that he objects to never took 
 place before 1890; and while he seems to assume in some of these 
 rhetorical passages that it has, he does not say so, and could not say 
 so without saying that which is untrue, l^either does he cite any 
 authority. 
 
 If my learned friend does not like Judge Swan I will refer him to 
 what Mr. Tupper says about him. 
 
 Sir Charles Eussell.— I did not say that I disliked Mr. Justice 
 Swan. 
 
 Mr. Phelps.— I do not mean to say tliat you did, but Mr. Tupper 
 in a letter in the British Case page 3, has the following criticism made 
 upon Mr. Elliott by Mr. W. L. Morris. It is not Mr. Tupper's, but he 
 cites it. He says Mr. Morris says : 
 
 This man seems to be the natural foe of Alaska, prosecuting and persecuting her 
 with the brush and the pen of an expert, whenever and wherever he can get an audi- 
 ence, and I attribute the present forlorn condition of the territory more to his 
 ignorance and misrepresentation than to all other causes combined. . . 
 
 And Mr. Tupper then goes on to say. 
 
 His evidence in 1888 is open advocacy of the United States contention. His 
 writings and reports prior to the dispute will be referred to and it will be submitted 
 that his statements and experiences before 1888 hardly support his later theories. 
 
 That is what we say; and Dr. Dawson, one of the British Commis- 
 sioners, estimates Professor Elliott like this. Judge Swan — see the 
 United States Counter Case, page 414, quotes Dr. Dawson as follows. 
 
 Elliott's work on seals is amusing. I have no hesitation in saying that there is 
 no important point that he takes up in his book that he does not contradict some- 
 where else in the same covers. . . His work is superficial in the extreme. 
 
 This is really trifling, and it is of no importance at all. On this 
 subject he constructs a theory, and it is but a theory. How could 
 anybody come to a conclusion about the effect upon an animal of this 
 kinri, which he seeks to attribute to it. There is only one way, and 
 that is to wait the result of experience. Time will tell. Nothing else 
 will tell, unless indeed it were something that is not pretended to exist 
 in this case, some such special exterior injury as would show for itself 
 what its consequences must be. 
 
 I pass over much more that I could say on this point, pointing out 
 the errors of his reasoning and his mistakes in point of fact upon this; 
 but I do not think the case requires it. 
 
 But now, that we are upon Mr. Elliott I want to verify what I said 
 just now in reference to his support of the contention of the United 
 States; and I will just name the points on which you will find he does 
 support the contention of the United States. I read from page 69 of his 
 Eeport. These are detached passages, but you have the Eeport and 
 the context is all before you : 
 
 The polygamous habit of this animal is such that, by its own volition, I do not 
 think that more than one male annually out of fifteen born is needed on the breeding- 
 grounds in the future : 
 
 Then, on page 118, 
 
 In this admirably perfect method of nature are those seals which can be properly 
 killed without injury to the rookeries, selected and held aside by their own voli- 
 tion, 80 that the natives can visit and take tliem without disturbing, iu the least 
 degree, the entire quiet breeding-ground, where the stock is perpetuated. 
 
 B S, PT XV 18 
 
274 ORAL ARGUMENT OF HON. EDWARD J. PHELPS. 
 
 Then, on page 139. 
 When tlie holluschicMe are up on land : — 
 
 Sir Chaklbs Eussell. — You really mast read the next line: 
 Such was the uumher and method of the young male seals in 1872-1874. 
 
 Mr. Phelps. — Well, really, I have not time to read much of this. 
 
 Sir Charles Russell.— Yes, I will not interpose. 
 
 Mr. Phelps. — If I make a reference, it is by no means my purpose 
 to give any unfair deduction from Mr. Elliott. You will see by reference 
 to pages 71 and 74, he regards the methods adopted on the Pribilof 
 Islands as excellent; and he describes the drives in the parts quoted 
 from his Report of 1874 on pages 122 and 128. 
 
 Now on page 269 of his present report he says : 
 
 I should remark that the driving of the seals has been very carefully done, no 
 extra rushing and smothering of the herd, as it was frequently done in 1872. 
 Mr. Goff began with a sharp admonition and it has been scrupulously observedj 
 thus far, by the natives. 
 
 Then on page 283, he says : 
 
 Yesterday afternoon I went back to Tolstoi over the seal road on which the drive 
 above tallied was made in the night and morning of the 7th inst. ; the number of 
 road "faints" or skins was not large, which shows that the natives had takeu 
 great care in driving these seals; this they have uniformly done thus far. 
 
 Mr. Justice Harlan. — What year was he speaking of there — 1890. 
 
 Mr. Phelps. — 1890 — when he was on the Island. He had not been 
 there since 1876. You will find what he says about killing females on 
 page 74. 
 
 We do not touch or disturb these females as they grow up and live; and we never 
 will if the law and present management is continued. 
 
 Then on page 213 he says : 
 
 In 1835 for the first time in the history of this industry on these islands was the 
 vital principle of not killing female seals, recognized. 
 
 He says again that according to his observations of 1872 to 1874 and 
 1876, the herd could safely support a draft far larger than 100,000, pro- 
 bably as large as 180,000 annually. That will be found on page 69. 
 
 He was there in the three years 1872 to 1874 ; he was there again in 
 1876 and he does not intimate in the report of 1890 that the condition of 
 1876 was not as good as that of the previous years 1872, 1873 and 1874. 
 
 Now what doe& he say about pelagic sealing. This is on page IX. 
 
 I conld figure out from the known number of skins which these hunters had placed 
 on the raarliet, a statement of the loss and damage to the rookeries — to the females 
 and young born and unborn, for that is the class from which the poacher secures at 
 least 85 p. c. of his catch. 
 
 And on page 13 he says : 
 
 The young male seals have been directly between the drive, club and poacher since 
 1882, wliile tlie females have had but one direct attack outside of natural causes, 
 they have been, however, the chief quarry of the pelagic sealer during the last five 
 years. 
 
 Then if you will turn to page 214 you will see what he says on another 
 point that 1 have not observed upon^perhaps shall not — that is the 
 loss through wounding and sinking of seals. It says: 
 
 Four thousand female seals heavy with their unborn young are killed in order tq 
 gecufe every one thousand sMus tivkei^. (See ajso page 85 foot note.) 
 
ORAL ARGUMENT OF HON. EDWARD J. PHELPS. 275 
 
 Then if you will turn to page 214 I will read another quotation. He 
 recommends there : 
 
 That all -pelagic sealing in the waters of Sehring Sea ie prohibited anA suppressed 
 throughout the breeding season, no matter how, so that it is done, and done guiokly. 
 
 This step is equally imperative; tbe immorality of that demand made by the open 
 water sealer to ruin within a few short years and destroy forever these fur bearing 
 interests on the Pribilof Islands, the immorality of this demand cannot be glossed, 
 over by any sophistry; the idea of permitting such a chase to continue where five 
 thousand female seals heavy with their unborn yoang are killed in order to secure 
 every one thousand skins taken is repugnant to the sense of decency and the simplest 
 instincts of true manhood. 
 
 I cannot refrain from expressing my firm belief that if the truth is known, made 
 plain to responsible heads of the civilized powers of the world, that not one of these 
 governments will hesitate to unite with ours in closing Behring Sea and its passes 
 of the Aleutian chain, to any and all pelagic fur sealing, during the breeding season 
 of that animal. 
 
 You will find on page 297 what he says on another point which has 
 been mooted here — whether a female seal suckles any young but her 
 own. 
 
 It has been said by some people, in order to break the effect of this 
 murder of nursing mothers, that, after all, the other nursing mothers, 
 that are not killed may suckle other pnps. The absurdity of the state- 
 ment that a fraction of the mothers could supply all the pups with sus- 
 tenance, is all the contradiction that should require. Mr. Elliott says 
 at page 296, speaking of the killing of these nursing mothers : 
 
 That means death or permanent disability, even if the cows are driven but once — 
 death to both cow and h.er pup left behind, since that pup will not be permitted to 
 suckle any other. 
 
 With respect to the pups learning to swim upon which there has 
 been some criticism, Mr. Elliott says at page 255 : 
 
 In the beginning of August a large majority of them are wholly unused to water. 
 
 And he says that a number of them do not get into the water before 
 September the 1st. 
 
 He speaks also of the gentle disposition of the seals. On page 123 
 he says. "Docility of fur-seals when driven" — is his title — 
 
 I was also impressed by the singular docility and amiability of these animals when 
 driven along the road ; they never show fight any more than a flock of sheep would do. 
 
 Then on page 98 on the "Gentleness of the seals" he says: — 
 
 "Descend with me from this sand dune elevation of Tolstoi, and walk into the 
 drove of hollusohickie" below us; we can do it; you do not notice much contusion 
 or dismay as we go in among them; they simply open out before us and close in 
 behind our tracks, stirring, crowding to the right and left as we go, twenty feet 
 away from us on each side. Look at this small flock of yearlings, some one, others 
 two, and even three years old, which are coughing and spitting around us now, 
 staring up at our faces in amazement as we walk ahead, they struggle a few rods out 
 of our reach, and then come together again behind us, showing no further sign of 
 notice of ourselves. You could not walk into a drove of hogs at Chicago without 
 exciting as much confusion and arousing an infinitely more disagreeable tumult ; and 
 as for sneep on the plains they would stampede far quicker. Wild animals indeed; 
 you can now readily understand how easy it is for two or three men, early in the 
 morning, to come where we are, turn aside from this vast herd in front of us and 
 around ns two or three thousand of the best examples, and drive them back, up and 
 over to the village. 
 
 This may be usefully considered in connection with the point that we 
 discussed some time ago as to the condition of the seals as a matter of 
 property. He says further on page 18, in respect to the young females 
 going back to the islands, which has been made a subject of discussion: 
 
 It must be borne in mind, that perhaps 10 per cent of the entire number of females 
 were yearlings last season, and came up on to these breeding- grounds as virgins for 
 tJje first time during this season— as two year old cowa, they of course bear no jrouug. 
 
276 ORAL ARGUMENT OP HON. EDWARD J. PHELPS. 
 
 And on the same page he says this: 
 
 This surplus area of the males is also more than balanced and equalized by the 
 15,000 or 20,000 virgin females which come on to this rookery for the first time to 
 meet the males. They come, rest a few days or a week, and retire, leaving no young 
 to show their presence on the ground. 
 
 And on page 139 he says : 
 
 Next year these yearling females, which are now trooping otit with the youthful 
 males on the hauling-grounds, will repair to the rookeries, while their male com- 
 panions will be obliged to come again to this same spot. 
 
 I may allude briefly to the condemnation by Mr. Elliott of various 
 points that have been suggested rather than proved on the other side. 
 On page 83 you will find — I do not quote his language — that coition 
 does not take place in the sea. 
 
 On pages 57 and 58 he contradicts the assertion that the effect of 
 raids on the Islands had been considerable as tending towards this 
 decrease; and I may say here once for all, for I cannot dwell any longer 
 upon it — it would take two or three days more if I were to go through 
 the evidence on all these minor points — let me say here now in respect 
 of this business of raids on the Islands, that I am entirely indifferent 
 which way the fact is found. If there are any raids on the Islands (and 
 they have taken place undoubtedly in some instances) they come from 
 these pelagic sealers. It is the very presence in the water of these 
 schooners that produces all the raids that have taken place on the 
 Islands, whether they are many or few; and in the condition of the 
 weather there it is perhaps true that they cannot always be prevented. 
 That is one of the very mischiefs we are trying to protect ourselves 
 against; not merely that they are slaughtering the seals in the water, 
 but whenever fog or night or any accident enables them to do it, they 
 go upon the Islands and trespass there. He says on page 53 and on 
 two or three other pages, that the seals have great power of locomotion 
 on the land. 
 
 There is another theory that has been thrown out here — that there is 
 a congregation of young seals that do not come back to the Islands. I 
 shall have a few words to say about that independently of Mr. Elliott; 
 but on page 103 you will find he says this : 
 
 By the 14th-20th June, they (the hoUuschickie) appear in their finest form and 
 number for the season, being joined now by the great bulk of the 2-year olds, 
 and quite a number of yearling males. By the 10th of July their numbers are begin- 
 ning to largely increase, owing to the influx now at this time of that great body of 
 the last year's pups or yearlings; by the 20th of July, the yearlings have put in their 
 appearance for the season in full force. Very few yearling females make their 
 appearance until the 15th of July, but by the 20th they literally swarmed out, in 
 1872-74, and mixed up completely with the young and older males and females as 
 the rookeries relax their discipline and "pod" or scatter out. 
 
 On page 253, he speaks again of the yearlings there. He says : 
 
 A great many yearling females are halting down at landings in and among the 
 scattered harems, aimlessly paddling about. 
 
 On page 298 he says : 
 
 I observed a very large proportion of yearling cows scattered all over the breeding 
 ground from end to end near the sea margin, while the yearlings of both sexes are 
 completely mixed upon the outskirts of the rookery, here and everywhere else 
 commingled with the adult cows and their young pups. 
 
 There is another point that has been suggested here by my learned 
 friends, that these seals consume the food-fishes, or that they may do so 
 at some time or other, What that has to do with this case I do not 
 know. The question as to the right of the United States does not 
 depend upon it. The question of regulations does not depend upon 
 
OKAI, ARGUMENT OF HON. EDWAED J. PHELPS. 277 
 
 it because the Governments have propounded these questions to the 
 Arbitration in the Treaty. But Mr. Elliott shows that the true enemy 
 of the fishery is the dog-fish, and that the seal is the devourer of the 
 dog-fish. You will see on page 307— 
 
 , Suppose for argument that we could and did kill all the seals, we would at once 
 give the deadly dog-fish {Squalno-ancarihias) which fairly swiirms in these waters, 
 an immense Impetus to its present extensive work of destruction of untold millions 
 of young food fishes such as herring, cod, and salmon. 
 
 A dog fish can and does destroy every day of its existence hundreds and thousands 
 of young cod, salmon, and other food fishes— destroys at least double and quadruple 
 as much as a seal ; what is the most potent factor to the destruction of the dog-fish 
 first, he will be doing positive injury to the very cause he pretends to champion, if 
 he is permitted to disturb this equilibrium of nature and destroy the seal. 
 
 Now I have said more than I ought about Mr Elliott; and what is 
 the conclusion of the whole? It will be seen that wc have neither 
 desired to suppress this Eeport, nor had we the least inclination to do 
 so. If you strike it out of this case, you strike out nine parts of the 
 evidence that are in our favour, in order to get the one — the only one 
 that is against us, so far as it goes; and that is destroyed, and the mis- 
 taken theory of Mr. Elliott on that subject is exposed when we find his 
 conclusion is one that is not warranted by any evidence; — that the kind 
 of driving he objects to had never taken place till 1890, and that 
 only in several years afterwards could it be ascertained whether his 
 preposterous idea, as we think it is, of an injury to the vitality of the 
 seals is made by causes so slight. 
 
 Let me say one word on the subject, however of the waste and de- 
 struction by killing and by the sinking of seals that are killed — the fatal 
 wounding of seals that escape. There is a great deal of evidence on 
 that point. It is evidence on both sides, and it would take a long time 
 to go through and estimate it. The evidence on the part of Great 
 Britain is from the sealers, not only swearing in their own behalf, but 
 swearing to their own marksmanship and success in killing seals. That 
 it has been universally understood, until that testimony was brought 
 forward in this case, that the result was a vast waste, we have seen 
 from everybody's statement who has made any statement earlier than 
 this. 
 
 It never was doubted before that it must be so; and it will be trans- 
 parent to any person who will reflect on the circumstances. It will be 
 more transparent to anyone who has ever had anything to do with the 
 business of shooting at all, and above all of shooting game or animals 
 in the water, l^o man who has had any such experience will be per- 
 suaded otherwise than that a very large number of animals under the 
 best circumstances must be lost — always are lost. No man who has 
 shot a deer in the water, or who has shot at ducks in the water and not 
 upon the wing — at animals that frequent the water — does not under- 
 stand how large a percentage necessarily must be lost. And you will 
 bear in mind that this Sealing Association agreement among each other 
 requires that only a certain number of "old hands" in the business 
 shall be employed on each vessel, whatever the reason of that is; and 
 that even many- of the witnesses that attempt to make out that a very 
 large proportion of seals are saved out of those that are killed, make 
 this qualification — "the green hands lose." They need not say that. 
 We know that green hands lose the seals. It is a very expert marks- 
 man indeed that would not lose a great many; — the green hands lose 
 on their own showing. But I pass over this lightly for the reason that 
 this, like so many points that have been discussed, really does not bear 
 on the issue. If they are to destroy the animals, they are not any more 
 destroyed because they sink to the bottom of the sea, and their skins 
 
278 ORAL ARGUMENT ON HON. EDWARD J. PHELPS. 
 
 are lost. They are lost to us just as much. Their effect upon the herd 
 is the same. It is ouly the question whether those who kill them get 
 the profit of the skins; and yet at the same time it is most natural to 
 observe that you find agreed all through this case, by those who have 
 commented upon it, that the waste and destruction alone of this method 
 of sealing condemns it, if you are to look at all at the interests of man- 
 kind in the preservation of this herd, or to the interests of commerce 
 in having the yearly product. If those considerations enter at all into 
 the question, then it is a material consideration, tliat, as we say, a very 
 large proportion variously stated by the witnesses (I will not undertake 
 to say what, for I have made no estimate of the result of the testimony) 
 are lost. 
 
 Then you have unquestionably noticed another thing — that of all the 
 skins that go into the London market from what is called the "North 
 West Catch" — that is the pelagic catch — the uniform price is consider- 
 ably less than the skins of the same animals taken on the island, and 
 the reason is that they are full of shot holes; — that is the only differ- 
 ence — except that they are largely the skins of females. That may 
 have something to do with it, but generally the reason given by the 
 witnesses is that they are full of shot holes, so that of the skins that are 
 saved, commerce is deprived of the real value of many of them. But 
 I pass over many of these points, rather than to weary you with what, 
 perhaps, is not very material. 
 
 I want to say a word further on the subject in respect of which I read 
 from Mr. Elliott — the return ot these seals to the islands. There is a 
 theory — it is nothing but a theory — that there maybe young seals that 
 do not go back till the instinct of nature takes them back for the pur- 
 poses of reproduction. What evidence does that rest upon? Who 
 knows, who can know, who pretends to know, that these seals do not 
 return? The evideuce is just to the same effect as what I have read 
 from Mr. Elliott. Numbers of witnesses testify that yonng seals are 
 back there. This very business of driving that we have been discuss- 
 ing shows that. What is the trouble with the driving in 1890 — what 
 is the objection to it? They drive up seals and let them go: what do 
 they let them go for? They cannot get the desired number of skins; 
 they can get but little more than one-fifth: they have not the number 
 which the contract entitles them to take: why do they let them turn 
 back? Because they are too young. All this theory of Elliott's is 
 based on the presence of those young males on the islands. 
 
 As to the young females, the evidence of their presence on the islands 
 is voluminous. 
 
 Then there is another thing. The necessities of the change — the 
 shedding of the fur brings these animals ba(;k — which takes place every 
 year. I read from Mr. Grebnitzky's evidence, the Governor of the 
 islands whose experience is so long and who has no interest in this 
 case. It is to be found in the United States Counter Case page 363. 
 He says : 
 
 I believe that at sometime during tlie year every seal comes ashore. There is no 
 reason to believe that a certain number of any class remain switnming about in the 
 neighbourhood of the islands all the summer without landing, although there is con- 
 siderable difference in the time at which different classes arrive. 
 
 Writing about Mr. Grebnitzky, the British Commissioners say, at 
 section 202 that he, Grebnitzky, 
 
 Believes the main reason of the landing, at later dates, of the seals not actually 
 engaged in breeding, is that during the "shedding" or "stagey" season, their pelage 
 becomes too thin to afford a suitable protection from the water. 
 
ORAL ARGUMENT OF HON. EDWARD J. PHELPS. 279 
 
 Captain Bryant's testimony cited on both sides is quoted by the Brit- 
 ish Coininissiouers, at Sections 718 and 719. They say in Section 718. 
 
 Referring particularly to his experience in 1869, Captain Bryant writes : "At the 
 close of this period the great body of yearling seals arrive. These, mixing with the 
 younger class of males, spread over the uplands and greatly increase the proportiou 
 of prime skins, but also greatly increase the difficulty of killing properly. Up to 
 this time, there having been no females with the seals driven up for killing, it was 
 only necessary to distinguish ages ; this the difference in size enables them to do very 
 easily. Now, however, nearly one-half are females, and the slight difference betweeu 
 these and the younger males renders it necessary for the head man to see every seal 
 killed, and only a strong interest in the preservation of the stock can insure the 
 proper care. 
 
 The meaning of these remarks and their bearing on the possibility of restricting 
 the killing on the islands to males, becomes clear when it is remembered that the 
 external genital organs of the male do not become distinctly obvious till about the 
 third year of its age, § and particularly so when it is remembered that even as long 
 ago as 1872-74 the "major portion of the catch" consisted of two- and three-year-old 
 seals, II while at other times even yearlings have been killed. 
 
 This last language is the language of the Commissioners. The first, 
 was their quotation from Captain Bryant. 
 
 Mr. Goft' says (this is quoted in the British Counter Case p. 265). 
 
 Now, in opening the season, it is customary to secure all the 2-year-olds and 
 upwards possible before the yearlings begin to fill up the hauling-grounds and mix 
 with the killable seals. 
 
 And, again, he says, as they quote him. 
 
 And we closed the season by turning away 86 per cent, a fact that proves to every 
 impartial mind that we were redriving the yearlings. 
 
 I will refer to another piece of evidence because this can be made 
 perfectly clear. An examination of a Table, (one published at pages 
 255 and 256 of Volume II of the Appendix to British Counter case), 
 shows that during the whole term of the lease of the Alaska Commer- 
 cial Company, more than half the catches consisted of "Middling 
 pups", and under. A "Middling pup" is two years old. There is also 
 the evidence of Mr. Mclutyre and Mr. Morgan and others. 
 
 There is no evidence — there can be no evidence — to the contrary — 
 because it cannot be told in the sea, what a seal is, where it has come 
 from, or where it is going except from its being in the migration route, 
 how long he has been at sea, and whether he is going back again; and 
 the evidence of all these persons whose particular knowledge of seals, 
 and whose character for truth are beyond question, shows that the 
 yearlings and the two-year-olds, male and female, do come back every 
 year in very large numbers. If they do, what possible warrant is there 
 for the suggestion that there is some unknown fragment of them that 
 remain out at sea; especially in view of the necessity of their getting 
 on shore for the annual shedding of their fur. 
 
 I am reminded, while I remarked that Mr. Elliott had given us two 
 erroneous translations, that I have only produced one; and, while it is 
 not of great consequence, yet having referred to it, I should like to 
 produce the other. 
 
 The British Commissioners Report, Section 429, quotes from Elliott's 
 United States Census Report at page 141, and no doubt they quote 
 him correctly. They say: 
 
 429. On this point, speaking of an early date in the history of the islands, Veni- 
 aminof writes; "This opinion is founded on the fact that never (except in one year, 
 1832) have an excessive number of females been seen without young; that cows not 
 pregnant scarcely ever come to the Pribilof Islands ; that such females cannot be 
 seen every year." 
 
 Mr. Justice Haelan. — That is not Elliott's. 
 
280 ORAL AKGUMENT OF HON. EDWARD J. PHELPS. 
 
 Mr. Phelps. — Yes, it from Elliott's Census Eeport. 
 
 Mr. Justice Harlan. — K"o. 
 
 Mr. Phelps. — It is Elliott's quotation from Yeniaminof. 
 
 Mr. Justice Harlan. — Yes. 
 
 Mr. Phelps. — That is what I mean. It is a quotation from Yeniami- 
 nof which he has translated, in the United States Census Report at 
 page 141, cited by the British Commissioners in Section 429. This is 
 the correct translation, as certified, of that passage. 
 
 This opinion is founded on the fact that (except in one year, 1832) no very great 
 number of seals has ever been seen without pups ; but it cannot be said that unpreg- 
 nant cows never visit the Pribilof Islands, because such are seen every year. 
 
 What the author says is exactly the opposite of Mr. Elliott's trans- 
 lation. 
 
 There is the evidence, if you call that the evidence, upon which this 
 extraordinary theory is based that is in the face of all the other evi- 
 dence in the case. I could read evidence from now to the end of the day, 
 to show that the yearlings go back to the islands every year. 
 
 Now what is the upshot of this whole business? If the time that I 
 have taken has not caused the Tribunal to lose sight of the thread of 
 the argument I have been endeavoring to pursue for the last two days, 
 the point with which I set out was this; to prove from the evidence 
 what I say is not merely proved — it is demonstrated— that the business 
 of pelagic sealing leads necessarily to the extermination of the seal. 
 In proof of that, we have shown that 85 per cent of its slaughter is 
 females; that a very large proportion, 75 to 85 per cent of the females 
 in the H^orth Pacific Ocean, are pregnant and about to be delivered; 
 that in the Behring Sea an equally large proportion, are those who have 
 survived the onslaught made upon them in the I^Torth Pacific Ocean, 
 have been delivered of their young, and are out at sea in pursuit of 
 food, and they are there destroyed: that the consequence of that is the 
 death of a great number of jjups on the Islands ; that the suggestion 
 that the pups are destroyed by any other cause is not only unsustained 
 by evidence — it is not even sustained by a reasonable suggestion of 
 what the cause might be; and it is demonstrated and shown to be 
 untrue, because except as to the two Eookeries in one year 1892, the 
 death of the pups always coincided and concurred with pelagic sealing. 
 
 Then I have endeavoured to show in this hasty and cursory way, — it 
 is more cursory, I beg you will I'emember, than if I felt at liberty to 
 take more of your time, — that the suggestion of the present decrease, 
 which is only a circumstance in respect of the ultimate result of pelagic 
 sealing, is due to any other cause than this, is totally without founda- 
 tion : that what is said about the taking of too many males never tran- 
 spired until it was brought about by the result of pelagic sealing itself. 
 That all authorities agree that the herd would stand as it always used 
 to stand, when it was needed, a draft of 100,000 a year — but as they 
 could not know the diminution of the birth rate that was being grad- 
 ually but certainly brought on by pelagic sealing the time came when, 
 in 1890, it was quite true that they could not take that number of seals. 
 Then the other suggestion, that aside from the number the virility of 
 the herd has been injured by the manner of driving, turns out, on 
 investigation, to be absolutely unsupported except by this theory of 
 Mr. Elliott's, and to be contradicted overwhelmingly by all the other 
 evidence in the Case. 
 
 I need not refer to the other theory that there are seals abroad that 
 do not come home. That is unproved and contradicted by all the wit- 
 nesses. What is the result of it all? Why it comes down to a demon- 
 
ORAL ARGUMENT OF HON. EDWARD J. PHELPS. 281 
 
 stration, as I respectfully claim, of the proposltiou I set out with, and 
 which is the great underlying proposition in my argument iu this case: 
 that the right which is contended for on the part of these individual 
 and speculative Canadians and renegade Americans and which they 
 claim as their justification is the right of extermination. 
 
 There is no other view to take of it. It is not the right to share with, 
 us, — that right would be open to discussion if the United States have 
 no property interest,— it is the right of extermination, as a feature of 
 the freedom of the sea. My learned friends say that the right of the 
 United States cannot be maintained without infringing the freedom of 
 the sea; they talk about the right of search, which has nothing to do 
 with this case; the right of seizure, which is not before this Tribunal; 
 but which if it is to be resorted to in self-defence is exactly the right 
 and the only right that has been administered ever since there was a 
 law of the sea in protection of every interest that a nation has to pro- 
 tect. There is nothing else that can be done except the resort to 
 measures which are more stringent and more severe, and which the 
 usage of nations does not warrant. The right of extermination is then 
 the question in this case. I have assumed it to be so in what I have 
 .said on the law points, I have proved it to be so, I respectfully suggest, 
 upon the facts. 
 
 g'he Tribunal then adjourned for a short time.] 
 r. Phelps. — I come now, Sir, to the only remaining topic upon 
 which I shall address the Tribunal, the subject of Regulations, in case 
 the decision should be such as to require its consideration by the Tri- 
 bunal. I alluded in the beginning of my argument, to the extraordi- 
 nary position, as it seems to me, that Great Britain occupies upon this 
 subject. I pointed out, by reading from letters in the correspondence 
 that preceded the creation of this Tribunal and the making of this 
 Treaty, the position that Great Britain took. I showed, in the first 
 place, that at the very outset of the negotiations, in the first interview 
 that ever took place between Lord Salisbury, the British minister of 
 Foreign Affairs, and the United States representative, a convention 
 was agreed upon substantially, the terms of which you will remember. 
 I do not know that I can give now the latitude and longitude, but 
 you will remember that its limits were designated on the map — how 
 large they were to the South into the sea, and how large they were east 
 and west. That fell through upon the remonstrance of Canada. It was 
 never withdrawn by the IBritish Government. It was never recalled, 
 but it drifted along through correspondence (that I shall not allude to 
 again) until the United States became satisfied and the event showed 
 they were right,-that it would not be carried into effect. It was sug- 
 gested that the Convention thus agreed to by Lord Salisbury — the close 
 time being from the 15th April to the 1st ISTovember, subsequently modi- 
 fled to the 15th October — was made because Lord Salisbury did not 
 understand the subject. Quite apart from the consideration that he 
 would not have acted and never did act — upon a subject he does not 
 understand, after he had heard from Cajiiada officially, and more than 
 once as the correspondence shows, and after the light that was thrown 
 upon it, not only by the American Government, but by the subsequent 
 communications from British cruisers. Lord Salisbury never took the 
 ground that he would have taken as a frank and honourable man, if 
 it had been true that he had been drawn into an agreement in igno- 
 rance of material facts. He never put himself on that ground. The 
 last communication from Lord Salisbury on that subject to the Ameri- 
 can Government and to the American Minister, both orally and in 
 
282 ORAL AE&UMENT OP HON. EDWAED J. PHELPS. 
 
 writiug, was this: — "We hope to carry the convention into effect. It 
 will take time, but we hope to do it." Then I pointed out further, 
 and you will excuse me for alluding to this, as a foundation of what I 
 am going to say without reading again in support of it, that from that 
 time forward in all the negotiations under Piesident Harrison's Admin- 
 istration, when Mr. Blaine was Secretary of State, the language of the 
 British Government was uniformly " We are ready to do anything that 
 is necessary for the preservation of the fur-seal. We deny your right 
 to protect yourself. We think that infringes on our rights, but when 
 you come to a Convention for the preservation of the seal, we will do 
 anything that is necessary." 
 
 I pointed out further, that with the exception of a very guarded pas- 
 sage in one letter in which Lord Salisbury suggested, in regard to the 
 statement of these points by Mr. Blaine, that there might be two sides 
 to the question, that there was evidence on the other side, and that it 
 was not agreed to by Canada, — some very guarded statement that did 
 not commit him or his Government, — with that exception he nev^r chal- 
 lenged anything that Mr. Bayard said in that communication sent to the 
 British Government outlining the Convention that was necessary, and 
 which was, as I have before informed you, reprinted and spread abroad, 
 in which all these assertions that we make now as to the character and 
 consequence of pelagic sealing were set forth. He never undertook to 
 defend it, or to deny its consequences or results, except only in the one 
 guarded passage that I formerly read. So that the record of the Brit- 
 ish Government is perfectly clear up to the time of this hearing, and 
 the record is perfectly clear now,'because what has been said here is no 
 part of the diplomatic record of the country or the Foreign Office. Up 
 to the commencement of this hearing. Great Britain, in every word that 
 was said, has been at one with us on the subject of the preservation of 
 this race, and is the author of this Commission by which the measures 
 necessary for the preservation of the fur-seal were to be ascertained; 
 and in one passage as you will remember, the language used was, " with- 
 out reference to the interests of anybody." I should say further, that 
 when they sent out these Commissioners, my learned friends have relied 
 as an evidence of the good faith of their Government in respect to the 
 object in view, upon these instructions to the Commissioners. 
 
 The main object of your inquiry will be to ascertain, " What international arrange- 
 ments, if any, are necessary between Groat Britain and the United States, and Russia 
 or any other Power, for the purpose of preserving the fur-seal race in Behring Sea 
 from extermination?" 
 
 As to the appointment of that Commission, let me refer, as I have 
 but very little to read on this branch of the case, 1 hope, from corre- 
 spondence, to Mr. Blaine's letter of February 16th, 1892. 
 
 It is in the first American Appendix, page 348, to Sir Julian Paunce- 
 fote, after the Commissioners had been appointed on both sides. 
 
 Sir, I am in receipt of your note of this date, in which you give me the official 
 notification of the appointment of Sir George Baden-Powell and Professor Dawson, 
 as Commissioners on the part of the British Government on the joint Commission 
 created in view of the proposed fur-seal Arbitratiou. 
 
 In acknowledging your note I deem it important to direct your attention to the 
 fact that the government of the United States, in nominating the Commissioners on 
 its part, selected gentlemen who were especially fitted by their scientific attainments, 
 and who were in nowise disqualified for an impartial investigation and determina- 
 tion of the questions to be submitted to them by a public declaration of opinion 
 previous or subsequent to their selection. It is to' be regretted that a similar course 
 does not seem to have been adopted by the British Government. It appears from a 
 document which you transmitted to me, under date of March 9, 1890 (inclosnre 4^, 
 that one of the gentlemen selected by your government to act as Commissioners on 
 
ORAL ARGUMENT OF HON. EDWARD J. PHELPS. 283 
 
 its part has fully committed himself in advance on all the questions whioli are to he 
 submitted to Mm for investigation and decision. 
 
 I am further Informed that the other gentleman named in yonr note had previous 
 to this selection made public his views on the subject, and that very recently he has 
 announced in an address to his Parliamentary constituents that the result of the 
 investigation of this Commission and the proposed Arbitration would be in favor of 
 his Government. 
 
 I trust, however, that these circumstances will not impair the candid and impar- 
 tial investigation and determination which was the object had in view in the crea- 
 tion of the Commission, and that the result of its labors may greatly promote an 
 equitable and mutually satisfactory adjustment of the questions at issue. 
 
 Now there is the first point in which Great Britain swerved away 
 from what before had been its uniform and honourable and most proper 
 and appropriate language in respect of the regulation of this matter, if 
 it was to be regulated by convention, and putting aside as was proposed 
 by Mr. Bayard and Mr. Blaine the discussion of any question of right — 
 the first thing they did was to select gentlemen — gentlemen of high 
 respectability, competent, no doubt, in o\ cry respect to be selected, but 
 men — one of whom, at least, and the other to a considerable extent were 
 completely committed beforehand. I want to refer — becaiise we cannot 
 consider this question of Regulations intelligently, unless we ignore 
 altogether the work of the Commissioners that were appointed under 
 the Treaty for the very purpose of helping the Tribunal on this siib- 
 ject — we cannot discuss this q^^estiou without considering the position 
 in which these gentlemen stood. This is a note by one of these Commis- 
 sioners, Mr. George Dawson, Assistant Director of the geological sur- 
 vey of Canada, and it is to be found in the 3rd volume of the British 
 Appendix on page 450. 
 
 I cannot read all that because there are three full pages of this large 
 volume and it is dated March 5th 1890 — before their appointment. It is 
 from beginning to end a strong, ingenious and very earnest argument 
 in favour of pelagic sealing and against any kind of Regulations that 
 should not provide for and protect it. Some of the passages are very 
 strong. Take this instance ; and the Tribunal will understand I am 
 only reading detached passages. 
 
 If, indeed, the whole sweep of the Pacific Ocean north of the Equator was domi- 
 nated and effectively controlled by the United States, something might be said in 
 favour of some such mode of protection from a commercial point of view, but in the 
 actual circumstances the results would be so entirely in favour of the United States, 
 and so completely opposed to the interests and natural rights of citizens of all other 
 countries, that it is preposterous to suppose that such a mode of protection of these 
 animals can be maintained. 
 
 He argues the property question at considerable length and has strong 
 opinions upon that subject. Then at page 452 he goes on to say: 
 
 The protection of fur-seals from extermination has from time to time been spe- 
 ciously advanced as a sufficient reason for extraordinary departures from the respect 
 usually paid to private property and to international rights ; but any protection 
 based on the lease of the breeding-ground of these animals as places of slaughter, 
 and an attempt to preserve the seals when at large and spread over the ocean, as 
 they are during the greater part of each year, is unfair in its operation, nnsound in 
 principle, and impracticable in enforcement. 
 
 Then he discusses lower down the impracticability of killing seals in 
 the open sea and goes on to propose that the killing should be largely 
 limited on the Islands and that indeed if it could be done the proper 
 way would be to stop all the killing on the Islands. He says: 
 
 The circumstances that the females fur-seal becomes pregnant within a few days 
 after the birth ot its young, and that the period of gestation is nearly twelve months, 
 with the fact that the skins are at all times fit for market (though for a few weeks, 
 extending from the middle of August to the end of September, during the progress 
 
284 ORAL ARGUMENT OF HON. EDWARD J. PHELPS. 
 
 of the sTierlrling and renewal of the longer hair, tliey are of less value) show that 
 there is no natural basis for a close season generally applicahle. Thus, should any 
 close season be advocated, its length and the time of year during which it shall 
 occur can only be determined as a matter of convenience and be of the nature of a 
 compromise between the various interests involved. 
 
 I only read that to show the position of this gentleman. 
 
 I do not blame him for his opinions — he is entitled to his opinions 
 and is entitled to advocate them. I should as soon think of taking 
 issue with my learned friends because they have delivered able argu- 
 ments in support of their side of the case. But if the proposal was to 
 create a Tribunal in the place of the gentlemen I am addressing to 
 determine this case, I should very seriously object to having my three 
 learned friends who, under other circumstances, would be most compe- 
 tent and ai^propriate to fill such a place, appointed as Members of the 
 Tribunal ; and I need not say they would not for a single moment accept 
 such a position, if it was tendered to them'. 
 
 The difficulty is that this Commission, as you will see all the way 
 through, is quasi judicial. It is to some extent the same as your own, 
 and there is the same objection to putting the man who has formed 
 strong and inveterate opinions and views, and expressed them and 
 become the champion of that side quite as much as either of my learned 
 friends who are here in the capacity of Counsel during their argument — 
 on a Commission designed to be a Joint Commission to prescribe these 
 Eegulations, and to ascertain, not what is necessary for the interest of 
 the sealers, not what is for the interest of pelagic sealing, but what is 
 necessary to preserve the seals; — the objection to putting such men on 
 this Commission is very great, and the result is what might be naturally 
 anticipated. I never doubted for one moment that if gentlemen who 
 were selected as I believe the United States Commissioners to have 
 been, who had never expressed opinions that I know of, and who had 
 no interest and no feeling, had, on the other side been met by two gen- 
 tlemen who had sat down as the Members of this Tribunal sat down, 
 to enquire, in view of all the evidence what is to be done, a scheme 
 would have been propounded which, whether satisfactory to both sides 
 or not, would have been adopted by the Governments. I never doubted 
 another thing, though you will only take this as my suggestion — that 
 this was what Lord Salisbury desired, finding himself between two 
 tires ; — in the first place confronted by the facts pressed upon him by 
 the United States, which he could not controvert, and pressed by the 
 industry — and a very important one, of Great IBritain, and on the 
 other hand met by the determined opposition of Canada, — he took this 
 ground — a perfectly fair ground on the face of it, and perfectly sincere — 
 that he would agree to anything necessary to preserve the seals, and 
 that what was necessary should be reported by the Commissioners. 
 
 Now what have we here on this hearing? This whole case, from 
 beginning to end, now happily so near, has been a struggle on the part 
 of my learned friends for the protection of the business of pelagic 
 sealing ; and if their recommendations were adopted, after the Tribunal 
 should have decided that the United States have no right to protect 
 itself, they would proceed to establish regulations that would not afford 
 the slightest protection. 
 
 What are the claims of my learned friends on the other side. They 
 say: "Limit these regulations to Behring Sea". Do you claim that 
 would preserve the seal? No, we agree it would not. It is plain it 
 would not. That cannot be denied. Why, then, limit them to Behring 
 Sea? Upon some technical construction of the plain language of this 
 Treaty, derived from the antecedent correspondence, something that 
 
ORAL AKGUMENT OP HON. EDWARD J. PHELPS. 285 
 
 Mr. Wharton said, when dealing with the modus vivendi which could 
 not extend beyond Behring Sea, because there was no statute of the 
 United States then, enforcing regulations on their citizens in the North 
 i'acific. Limit them to Behriug Sea. But if you close Behring Sea 
 trom Jaimary to December, what would be the result on the preserva- 
 tion of the seal? My learned friends admit it would be ineffectual. 
 Sir Richard Webster said you must, in order to save the seal, prevent 
 the killing of the gravid females on their way to grounds where they 
 are dehvered; and yet they would limit it so as not to interfere with 
 such killing at all, which is all done in the North Pacific. 
 
 What time is proposed by these British regulations'? To shut up 
 Behrmg Sea from the 15th September round to the first July; and I 
 shall show you from the evidence in this case that no British sealer 
 ever went into the Behring Sea earlier than the 1st Julv, except in 
 some rare exceptions in the last days of June, and they are all out 
 before the 15th September. The proposed closed time, therefore, for 
 the protection of the seal would leave all the sealing that has ever 
 taken place in Behring Sea open, and would make a close time as to 
 those parts of the year when they would not be there even if there was 
 no close time. 
 
 Is that all "S They say they want these Regul ations temporary. That 
 is, for some term of years. What is the result of that? You will 
 remember that you have decided, before yoa arrive at these Eegula- 
 tions, that we have no rights. We have submitted that question, and 
 have agreed to abide by the result, and we must abide by it, and we 
 shall abide by it, of course, whatever it may be. Ton have decided 
 before you reach this part of the case, therefore, that we have no rights. 
 Then you say "We will give you Regulations for 5 or 10 years"- At 
 the end of that time, where are we? We cannot defend ourselves at 
 all ; we have agreed that we are to be bound by the award of the Tribu- 
 nal, we cannot make further Regulations without the agreement of 
 Great Britain, and we cannot get any Regulations except what they 
 agree to. No Regulations would be agreed upon, and where should we 
 be? We should be absolutely defenceless, and the seals would have 
 to perish. It is a hundred times better to establish no Regulations at 
 all than that. 
 
 Then what else? They want them made non-enforcible; that is to 
 say Regulations on paper, so that if there is transgression by the 
 sealers, we alone having to suffer, we should have to enter into a diplo- 
 matic correspondance with Great Britain on the subject. We have 
 tried that remedy before, and the result is that we are here. Where 
 should we be if we cannot enforce the Regulations? We can open a 
 diplomatic correspondance with a country across the sea which stands 
 between us and this Province, with regard to whom we are at arms 
 length. 
 
 Sir Charles Russell. — This language of my learned friend betrays 
 so very grave a misapprehension of our position that I am bound to 
 interpose. Sir. We never said that the Regulations were not to be 
 enforcible; on the contrary, we pointed out that legislation in each 
 country would be necessary to give effect to the Regulations to bind 
 the nationals of each country; and speaking for the Government of 
 Great Britain, I said that that country would be bound to pass the 
 necessary enactment to enforce it; and that, of course, it would. 
 
 The President. — I think we understood the language of Mr. Phelps 
 to have the meaning that you have expressed. 
 
286 ORAL ARGUMENT OF HON. EDWARD J. PHELPS. 
 
 Mr. Phelps. — If I am mistaken in the position of my learned friends, 
 I cheerfully take back anything that I have said. 
 
 The President. — What you mean is, that it is not to be enforced by 
 one party? 
 
 Mr. Phelps. — Yes. I mean, that they propose, with regard to these 
 ships, if they transgress the Eegulations and are destroying the seals, 
 tbatwe shall have no right to capture a vessel orto do anything except 
 to appeal to Great Britain and remonstrate with them. 
 
 Sir Charles Eussell. — That is not so. 
 
 Mr. Phelps. — To remonstrate with them for not enforcing the Legis- 
 lation which, if they undertake to enact a measure, they would enact. 
 If I misunderstand my learned friend, I cheerfully take back all I have 
 said; but what I understood their position to be is this; that there 
 should be no such provision as that put into the draft of our Eegula- 
 tions whereby the IJnited States Cruisers could capture a vessel that 
 was transgressing your Eegulations; that is to say, suppose we had a 
 zone and a vessel is found sealing inside, then we must not capture it; 
 but we must go to Washington and open a correspondence there with 
 the Government stating that the schooner "Sally Jones" has trans- 
 gressed the Eegulations. Then, what is the Government to do? Of 
 course, to send to Canada for information; where they will probably 
 ascertain that the Captain of the Schooner " Sally Jones " denies every- 
 thing. To anybody who knows anything about diplomatic correspond- 
 ence with a country acting for a Province, it is apparent that it has no 
 information except what it derives from the Province — what would 
 come from that; and this is only material to show the ground on which 
 they put themselves. 
 
 The President. — That is your own appreciation, of course, M. Phelps 
 and we have our own appreciation of it. 
 
 Sir Charles Eussell. — I am sorry there should be this difference of 
 opinion because my learned friend Sir Eirchard Webster re-echoing what 
 1 think I had previously said made use of this expression. 
 
 I only contend for that whicL the United States itself universally contended for 
 np to this point and which Russia, Great Britain, France, and as far as I know, every 
 other civilized Country has always contended for successfully that if a ship is found 
 infringing the Treaty — that if a ship is found infringing the convention by the 
 nationals of another country it shall be handed over for justice to the courts of its 
 own flag. 
 
 That is according to the terms of the Eussian Convention. 
 
 The President. — We remember that perfectly. 
 
 Mr. Phelps. — That is another thing and if my learned friends did 
 not go so far as I understood them to go, then I misunderstood them 
 and I do not care to press the question any further. 
 
 Is it not apparent, that the first thing the Tribunal has to do if they 
 approach this question of Eegulations, is to determine which of two 
 theories will be adopted. Whether the theory which is laid down in 
 the language of the treaty, which is transparent in every step of the 
 correspondence, which appears in the instructions written by the Brit- 
 ish Government to their Commissioners, which is repeated over and 
 over again all the way through, to do whatever is necessary for the 
 preservation of the fur seal — not necessarily what the United States 
 says is necessary but what is found to be necessary, or on the other 
 hand whether you are going to adopt Eegulations that do not go so far 
 as is necessary to preserve the seal, but go in that direction as far as 
 you can consistently with the preservation of the pelagic sealing which 
 as I have proved to you is itself necessarily extermination. In other 
 words you will go so far in adopting Eegulations for tjie preservatioii 
 
OEAL ARGUMENT OP HON. EDWARD J. PHELPS. 287 
 
 of the fur seal as you cau go consistently with the preservation of their 
 extermination. If the one theory is to be adopted that is one thing. 
 Iheu we are to inquire really what is fairly and reasonably necessary 
 to preserve this race. That is the inquiry. If the other theory is 
 adopted, what can you do to retard its extermination consistently with 
 preserving the right of extermination? In the one case you preserve 
 the fur-seal; in the other case you are postponing by a few years its 
 destruction. 
 
 Ill what I have said, perhaps at the risk of being thought to have 
 said too much about this antecedent point, I have desired to bring out 
 clearly what the Governments proposed to each other, and what they 
 did. There is no ambiguity here. If there is any ambiguity in the 
 previous correspondence it is cleared up when you come to the Treaty 
 itself. Let me remind you of this often read language. 
 
 If the determination of the foregoing questions as to the exclusive jurisdiction of 
 the United States shall leave the subject in such a position that the concurrence of 
 Great Britain is necessary to the establishment of regulations for the proper protec- 
 tion and preservation of the fur-seals in or habitually resorting tp Behring Sea, the 
 Arbitrators shall then determine what concurrent regulations outside the jurisdic- 
 tional limits of the respective Governments are necessary. 
 
 Necessary for what? The previous language shows: 
 
 The proper protection and preservation of the fur-seal in or habitually resorting 
 to the Behring Sea. 
 
 But if I were to stop here and review all this correspondence again, 
 it would turn out, as I have said, to be carried on the face of the pro- 
 ceedings — all through, "we are willing to do all that ia necessary. We 
 do not desire to injure the United States ; we are willing to join and send 
 a Commission to iind out and aid in determining what is necessary." To 
 avoid the discussion of the proposal of Mr. Bayard in which he laid 
 down his outline, and To avoid the discussion of the propriety of the 
 very convention we entered into, and which, on the lace of it, as the 
 thing then stood, and the knowledge of the subject then existed met 
 the requirements completely of the necessary preservation of the fur- 
 seal, if it is found now, broad as those limits were, that they are not 
 broad enough, because the investigations since have enlarged the 
 knowledge of the subject, and have made it apparent that the parties 
 were not doing what they thought they were doing in that Convention, 
 we will agree to what is shown to be necessary to effect the common 
 object. 
 
 But now the point that my learned friend, Mr. Eobinson, particularly 
 insisted upon is that you cannot go as far as is necessary to preserve 
 the seal; that you may regulate the provisions for destroying him, but 
 you must not prohibit it; that was his answer to a question of one of 
 the arbitrators, and a very pertinent question it was. While he was 
 discussing it Mr. Justice "Harlan said, "Do you mean, Mr. Eobinson, 
 that if it is necessary to prohibit pelagic sealing, in order to jjreserve 
 the seals, that we are not to do it, that we have not the power to do 
 it?" "Certainly", said my learned friend, "you may regulate but not 
 prohibit." Kegulate what? Eegulate what you have found to be the 
 destruction; because if it is not the destruction, you do not want to 
 prohibit it. There is no propriety in prohibiting it unless it is destruc- 
 tion, but when you get thus far and are able to say. Why the i)rohibi- 
 tion of this sealing is necessary, — because it is destruction — now says 
 Mr. Eobinson you may regulate the destruction, but you cannot stop 
 it by the terms of this Treaty. Why it stultifies the Tribunal. It puts 
 the Tribunal under 3, commission that nominally, at least, invests theju 
 
288 ORAL ARGUMENT OF HON. EDWARD J. PHELPS. 
 
 with important powers, and yet places them under the necessity of 
 saying, "We are asked to protect the fur-seal; the nations have agreed 
 that it should be protected; we have found out what is necessary to 
 protect it, but cannot do the very thing and the only thing for which 
 this Tribunal was constituted, in the event it should come to the con- 
 clusion that any regulations were necessary in the case, because tlie 
 country could not protect itself." 
 
 Then they speak — and I do not know how far they mean to press 
 this point — about conditions annexed to the Kegulations; they talk 
 about their being conditional, upon our stopping the. killing on the 
 Islands. Is the Tribunal invested with anypower to enter on the United 
 States territory and prescribe what they shall do on their own soil? 
 Certainly not. Is there any necessity for it? Certainly not. They are 
 engaged as earnestly as they can be in preserving the seal. If they 
 have made any mistakes, they will correct them of course, when it 
 transpires that they need correction ; but they say, though you cannot 
 make Eegulations to bind the United States in the administration of 
 their own property in their own jurisdiction, where there is no question 
 of their right, where the concurrence of Great Britain is not necessary, 
 and it is' only when the concurrence of Great Britain is necessary, that 
 the Tribunal is to provide Eegulations, you may make it a condition 
 that killing must be restricted on the islands; thus doing indirectly 
 what you cannot do directly. What a proposition that is to a Tribunal 
 of the distinction and character of this. What a proposition it is to 
 any Tribunal, however humble and inferior it might be, if charged with 
 dealing with this subject at all, to invite it to do by indirection what it 
 conceives it cannot do directly. 
 
 A few words, and but a few words on the question of whether the 
 authority of the Tribunal extends to promulgating Regulations that shall 
 take effect outside the Behriug Sea. I do not think that is seriously 
 denied by the other side. I understand my learned friend. Sir Richard 
 Webster to have not only agreed, but to have proposed a Regulation 
 which he thought would be adequate to protect in the North Pacific 
 Ocean pregnant females on their way there. I do not think I am justi- 
 fied in saying that he reaUy contended that the authority of the Tri- 
 bunal is limited to the Behring Sea itself, but a reference, again to 
 the language of the Treaty makes that very clear, because the language 
 is : " The Arbitrators shall then determine what concurrent Regulations 
 outside the jurisdictional limits of the respective Governments are neces- 
 sary and over what waters such Regulations should extend." If there 
 could be any doubt, a reference to some of the many declarations on 
 this subject in the previous correspondence would set it quite at rest. 
 
 When this sixth section was first projected or when the Treaty 
 began to take form as early as December, 1890, the sixth Question was 
 proposed in this way. 
 
 Mr. Justice Harlan. — It is at page 286 of Volume I of the United 
 States Case. 
 
 Mr. Phelps. — Yes. 
 
 If the determination of the foregoing questions shall leave the subject in such 
 a position that the concurrence of Groat Britain is necessary in prescribing Regula- 
 tions for the killing of the fur-seal in any part of the waters of Behring Sea, then ib 
 shall be further determined : (1) How far, if at all, outside the ordinary territorial 
 limits it is necessary that the United States should exercise an exclusive jurisdiction 
 in order to protect the seal for the time living upon the islands of the United States 
 and feeding therefrom? (2) Whether a closed season (during which the killing of 
 seals in the waters of Behring's Sea outside the ordinary territorial limits shall be 
 prohibited) is necessary to save the seal fishing industry^ so valuable and important 
 
OKAL ARGUMENT OF HON. EDWARD J. PHELPS. 289 
 
 to mantind, from deterioration or destruction? And, if so. (3) What montlis or 
 parts ot months should be included in such season, and over what waters it should 
 extend? 
 
 On June tlie 22nd, 1891, which was after the modus vivend i of that 
 year had been signed, and the instructions to the British Commis- 
 sioner were " for the purpose of enquiring into the conditions of seal- 
 life and the precautious necessary for preventing the destruction of the 
 fur-seal species in Behring Sea and other parts of the North Pacific 
 Ocean." And the President of the United States, in appointing the 
 Commissioners on our side, instructed them "to proceed to the Pribilof 
 Islands and make investigation of the facts relative to seal life, with 
 a view to ascertaining what permanent measures are necessary for the 
 preservation of the fur-seal in Behring Sea and the I^orth Pacific 
 Ocean." There are the instructions issued on both sides to their respec- 
 tive Commissioners, and that appears again through this correspond- 
 ence to an extent which would be only wearisome to reiterate. 
 
 At page 315 of the 1st United States Appendix, Sir Julian Paunce- 
 fote writes a letter to Mr. Wharton of June the 11th 1891, and he says: 
 
 Nevertheless, in view of the urgency of the case, his Lordship is disposed to 
 authorize me to sign the Agreement in the precise terms formulated in your note of 
 the 9th June, provided the question of a Joint Commission be not left in doubt, and 
 that your Government will give an assurance in some form that they will concur in 
 a reference to a Joint Commission to ascertain what permanent measures are neces- 
 sary for the preservation of the fur-seal species in the Northern Pacific Ocean. 
 
 Mr. Wharton, in reply to that letter, recognises the fact, and he says: 
 
 I am directed by the President to say that the Government of the United States, 
 recognizing the fact that full and adequate measures ior the protection of seal life 
 should embrace the whole of Behring's Sea and portions of the North Paciiio Ocean, 
 will have no hesitancy in agreeing, in connection with Iter Majesty's Government. 
 
 So that you have the specific agreement that these measures were to 
 embrace parts of the North Pacific Ocean, and instructions were given to 
 the Commissioners on both sides how far into the North Pacific Ocean 
 it was necessary to go; and in the next place you have the definite lan- 
 guage of the Treaty, free from ambiguity, which gives the jurisdiction to 
 the Tribunal to go to that extent; and then, you have it conceded by 
 my learned friends that if you do not go into the North Pacific Ocean 
 you do not answer the purpose that the Oovernment had in view, and 
 cannot fulfil the only duty with which the Tribunal is charged. 
 
 Now what have we to say generally, about these regulations, before 
 coming to compare the two drafts. It is that they cannot be temporary. 
 The theory of the Treaty, and the necessity of the case, is that tliey 
 should be permanent; that they cannot be confined to Behring Sea, but 
 they must extend as far as is necessary; that they cannot be made con- 
 ditional upon the management upon the island, for the reason that that 
 authority is not entrusted to the Tribunal. 
 
 Now we come to the proposition made on the British siile as a partial 
 result of the British Commission, though they do not go nearly as far 
 as that Commission proposes, and what is it that they propose? Eeally, 
 what is the final outcome. We have reached the point where the 
 Tribunal is engaged in finding out what is necessary for the preserva- 
 tion of the seal. They propose some little, paltry regulations which do 
 not need the judgment of this Tribunal, because the British G-overn- 
 nient is at liberty to adopt them if it pleases, within its own jurisdic- 
 tion, and this Tribunal could not preveut.it. They say let us have 
 the vessels licensed. That is an affair of their own. We do not care 
 
 B S. PT XV 19 
 
290 ORAIi ARGUMENT OF HON. EDWARD J. PHELPS. 
 
 whether they are licensed or not. Then they say, let it carry a partic- 
 ular flag. We do not care about that. That does not concern us at 
 all. They could carry any flag they liked, subject to the laws of their 
 own country. Then they say, let them keep a log. What is that worth. 
 Only this, that when we charge a vessel with having transgressed any 
 regulations the log would show they had not. You would not find 
 a sealer coming into Court with a log showing he had broken the 
 regulations. 
 
 They are paltry, I say, these Eegulations, and if they attach any 
 importance to them, they are quite at liberty to adopt them, because 
 they are Eegulations we never objected to or asked for; they can do us 
 no harm, nor can they do us any good; therefore they may be dis- 
 dismissed from consideration. 
 
 But what are the Eegulations as put forth theoretically to save the 
 seals. They are two: — a zone of 20 miles round the I'ribilof Islands, 
 and a close season extending from the 15th of September, after every 
 seal is out of the sea round to the 1st July, which is the earliest date 
 at which they come back again. Those are the two provisions that are 
 really set forth by my learned friends as an answer to the enquiry sug- 
 gested to the Tribunal by these two nations, what is necessary to be 
 done for the protection of the seal. 
 
 Let us see exactly where those two will come out; I examine theirs 
 first, to show the utter futility of them, that they are not worth the 
 paper on which they were written, that we do not ask for any such thing 
 as that, and that they would be but a mockery — keeping the word of 
 promise to the ear and breaking it to the heart. 
 
 They say in language and in one of these Eegulations — at least. Sir 
 Eichard Webster says in his argument, you must keep the vessels at 
 home and not permit them to set out till the 1st May. Why? Because 
 he argues and supposes — I am bound to presume so, especially if he has 
 not looked into the sort of evidence I am going to call your attention 
 to — If you keep the vessels at their ports till the 1st May, they will not 
 catch the migration of the seals in time to destroy the pregnant females, 
 except perhaps in the case of steam vessels which could more rapidly 
 overtake the migration of the herd. They would be safe from its pur- 
 suit if they do not set out till May, and setting dut in May, they will 
 have the pleasure of chasing across the sea a flight of animals that is 
 so far ahead of them they cannot possibly overtake them. Then what 
 are they going to do with themselves if they cannot enter the Behring 
 Sea till the 1st July which is as early as is any use. How are they 
 going to spend the months of May and June, being at sea in pursuit of 
 a body of seals that they cannot catch, and excluded from Behring Sea 
 till the 1st July. It is no use to go tliere, unless they could intercept 
 the pregnant females between the Aleutian Chain and the Islands. 
 What is the sense of the sealers doing that, we do not learn from my 
 learned friend. 
 
 Now I will ask General IToster to be kind enough to point out this on 
 the map. 
 
 Let us see what time they arrive at the Pribilof Islands. 
 
 The testimony does not differ and the Commissioners do not differ. 
 The United States Commissioners say that the old breeding males begin 
 to arrive on the Islands the last week in April, and by June the 20th 
 they are all located. The British Commissioners say the same thing. 
 The United States Commissioners say the bachelnr seals begin to arrive 
 early in May and large numbers are on the hauling ground by the end 
 of May or first week in June. Tlie British Commissioners say with the 
 main body of the full grown bulls, a large proportion of the bachelors 
 
ORAL ARGUMENT OP HON. EDWARD J. PHELPS. 291 
 
 or younger males also appear. In further proof upon this point an 
 examination of the table of killings from 1880 to 1889, shows that the 
 killing season opened every year in May, and for the greater number 
 of years on or before May the 20th and by June the 15th large numbers 
 of bachelors had already been taken. 
 
 The United States Commissioners say the cows begin to arrive early 
 in June, but in immense numbers between the middle and end of the 
 mouth, and the harems are comi)lete early in July. 
 
 The British Commissioners say a few gravid females usually land as 
 early as the 1st June but it is under normal circumstances between the 
 middle of June and the middle of July that the great body of the females 
 come ashore. 
 
 All the difference is that the American Commissioners say the harems 
 are completed early in July, and the British Commissioners say between 
 that and the middle of July ; the difference is very slight. 
 
 There is a good deal of testimony also about the seals swimming more 
 rapidly than any fish, and that they usually travel 200 miles in one day. 
 This is confirmed by the Canadian Fisheries Eeports. 
 
 The British Commissioners state that in the latter part of June or 
 about July 1st, the female seals in pup which have entered Behring Sea 
 are found making their way rapidly and directly to the breeding Islands. 
 Now before alluding to a good deal of testimony on these points I want 
 to point out on the map what is very striliing. 
 
 In the British Counter Case we have the logs of 19 Canadian vessels , 
 engaged in pelagic sealing in 1892, duly authenticated by the affidavits 
 of the master or other oflScers of the vessels. These logs show the 
 period of time occupied by each vessel in sealing, the locality of the 
 vessel on each day when seals were taken, and the number of each 
 day's catch. That is found in the 2nd Volume of the British Counter 
 Case from pages 187 to 212. We have plotted on the map 
 
 Mr. Justice Harlan. — Is that a map made from these logs? 
 
 Mr. Phelps. — Yes. 1 will describe it. 
 
 We have put on to the map the location where each of these vessels 
 was on the 1st day of May; their exact course through the months of 
 May and June, the points at whicli their catches were made, and, in the 
 case of most of them, not all, the number of the catch. Now, as to 
 those 19 vessels, of which we have an exact record, I will ask the atten- 
 tion of the Tribunal while General Foster points them out. 
 
 The Umirina, No. 1, was off Sitka on the 4th day of May. 
 
 Sir Charles Etjssell. — The latitude and longitude were given in 
 the log. Has that been verified ? 
 
 Mr. Phelps. — Yes ; this has been verified exactly. We have followed 
 the latitude and longitude and the course, to know where they started 
 from and where they went. The Umhrina started on the 4th February ; 
 on the 4th of May, she was off Sitka; on the 30th of May, she was south- 
 west of Middleton Island; and, on the 16th of June, she was east, off 
 the centre of Kadiak Island. There is. the course of that vessel from 
 February to April. 
 
 General Foster.— She went out in February, and sealed throughout 
 the season. ^ ^^ , ^ . ., 
 
 Mr. Phelps.— That is the way she came. From February to April, 
 she took 296 seals. 
 
 General Foster. — As her log shows. 
 
 Mr. Phelps.— In May and June, 555 seals. So that out of a catch 
 of 851, 555 were taken between the localities which have been pointed 
 out, Sitka and Kadiak, 
 
292 ORAL ARGUMENT OF HON. EDWARD J. PHELPS. 
 
 Mr. Justice Hablan. — Where is the second poinf? 
 
 General Foster. — There. [Pointing it out.] The place where the ex- 
 change was made in 1892 was Port Etches, which is there. [Indicating it.\ 
 
 Mr. Phelps. — I take No. 2, the W. P. Hall. On the 1st June she was 
 south off Sitka Bay. On the 13th June she was off Yakutat Bay. I do 
 not find the amount of her catch here. 
 
 General Foster. — We only tabulate the catch of those engaged dur- 
 ing the whole season, beginning in January or February. 
 
 Mr. Phelps. — Now take the Maud S. On the 1st May she was off 
 Sitka; on the 31st May she was south-west of Yakutat Bay; on the 13th 
 June, she was south-east of Marmot Island. 
 
 From February to April, as shown by her log she took 319 seals. In 
 May and June she took 640. 
 
 Sir Charles Eussell. — Where do you get the figures from? 
 
 Mr. Phelps. — From the log of the vessel. 
 
 General Foster. — The figures represent each day's capture of seals. 
 
 Mr. Phelps. — Take No. 4, the Agnes McDonald, on the 1st May off: 
 Queen Charlotte Sound, on the 30th May off Yakutat Bay, on the 15th 
 June off Cape Clear. There is where that vessel spent May and half 
 of June. The catch is not given. 
 
 General Foster. — She was not engaged in the earlypart of the season. 
 
 Mr. Phelps. — The entire catch is given, but we cannot tell which was 
 taken before May and after June. 
 
 The President. — There was a good deal in July and August; is that 
 in Behring Sea? 
 
 General Fostek. — Yes. 
 
 Sir Charles Russell. — This was the year of modus vivendi. 
 
 Mr. Phelps. — No. 5 the Arietis on the 17th of May was off Icy Bay; 
 on the 30th May off Cape Clear; on June 13th off Shumagin Island — 
 that was her course. 
 
 No. 6, the Beatrice, 0T[\ the' 1st May was off south part of Queen Char- 
 lotte Island; on the 30th May olf Cape St. Elias. On the 15th June 
 she was off Cape Clear. That vessel took from January to April inolii- 
 sive 249 seals. In the months of May and June she took 454. 
 
 N" 7 is the Sapphire. May 1 off Prince of Wales Island. 
 May 30, off S. W. Cape St. Elias. 
 June 11, off Middleton Island. 
 N" 8 is the E. B. 3Iarvin. May 1, S. W. Sitka. 
 
 May 30, S. W. Yakutat Bay. 
 June 9, S. W. Middleton Island. 
 That vessel from January to April took 611 seals. In the months of 
 May and June she took 1,012. 
 N" 9 is the Viva. May 1, off 8. W. Yakutat Bay. 
 May 30, off Cape St. Elias. 
 June 20, off Middleton Island. 
 That vessel from February to April inclcusive took 881 seals. In 
 May and June she took 985. 
 N° 10 is the A. B. Paint. May 1, off S. Queen Charlotte Island. 
 
 May 30, off" Yakutat Bay. 
 June 17, off Cape Clear S. W. 
 That vessel took from February to April inclusive 239 seals and the 
 months of May and June 325 seals. 
 N" 11 is the A. G. Moore. May 1, off Cape Muzen, P. Wales Island. 
 
 JIi)y29,off Middleton Island. 
 June 8, off Portlock Bank, S. W. Cape 
 Clear. 
 
ORAL ARGUMENT OP HON. EDWARD J. PHELPS. 293 
 
 N° 12 is the Fawn. May 1, off Forester Islands (Pr. Wales) Cape 
 Muzon. 
 May 30, off Takutat Bay, 
 June 28, off S. E. Portlock Bank. 
 N» 13 is the Aniolca. May 6, off centre Queen Charlotte Island. 
 May 30, off Icy Bay. 
 June 17, off E. of Cape Elizabeth. 
 That vessel took from February to April inclusive, 57 seals; and in 
 the months of May and June 613 seals. 
 The 14th is the Mermaid. May 1, off" Dixon Entrance. 
 
 May 26, off Cape St. Elias. 
 And that is all the course that is given of her. 
 The loth is the Triumph. May 27, off Middleton Island. 
 
 May 31, off' E. of Portlock Bank. 
 June 16, off" K. of Portlock Bank. 
 The 16th is the Thistle. May 1, off S. Clayquot Sound. 
 There she was on the 1st of May. She started, very nearly, from 
 Victoria. 
 
 May 30, off S. W. of Yakutat Bay. 
 June 27, 200 miles S. Middleton Island. 
 That vessel took from February to April inclusive 148 seals ; and in 
 the months of May and June 293, making 441 seals. 
 The 17th is the G. H. Tupper. May 1, off Sitka. 
 
 May 31, off Middleton Island. 
 June 16, off Cape Eh'zabeth. 
 Slie took, from February to April 484 seals; and in the months of 
 May and June 789 seals. 
 The 18th is the 0. D. Band. May 6, off Milbank Sound, S. of Q. Ch. 
 
 Isd. 
 May 30, off Takutat Bay, W. 
 June 15, off Portlock Bank, E. 
 She took from February to April 42 seals; and in the months of May 
 and June 538 seals. 
 The 19th, and the last is the Vancouver Belle. May 1, off Christian 
 
 Sound. 
 May 30, S. Portlock 
 
 Bank. 
 June 3, off S. E. 
 Cape Elisabeth. 
 That vessel took from February to April 66 seals; and in the months 
 of May and June 279. That is all. 
 
 Mr. Justice Haelan. — Do those figures, Mr. Phelps, embrace any 
 catch in the spring or in June of the year by vessels that were not 
 British vessels? 
 Mr. Phelps. — Those are all Canadian Vessels. 
 
 Mr. Justice Harlan. — I know. "Were there any catches by other 
 vessels'? 
 
 Mr. Phelps, — lam coming to that; these are only 19 vessels. The 
 reason why they are given is because we happen to have the logs. But 
 I want to point out one more thing. Tou will see the net-work made 
 by the courses of those vessels. I will ask General Poster to kindly 
 point out that red mark. 
 
 General Poster. — [Pointing on the map.] The black line indicates 
 the course of the vessel in May. The red line (as far as it can be dis- 
 tinguished from the black) indicates the course of each vessel in June, 
 The coloring is not very clearly brought out. 
 
294 ORAL ARGUMENT OF HON. EDWARD J. PHELPS. 
 
 Mr. Phelps. — I will ask General Foster to point out the red band 
 circle there. 
 
 [General Foster did so.] 
 
 Mr. Phelps. — That indicates a radius of 20 miles— 10 miles each 
 way. It is said in the evidence they are accustomed to send their little 
 boats out that far. 
 
 If at every point tbat General Foster has indicated where seals were 
 taken you supposed a radius of 30 miles, you will see, if we laid that 
 down on the map, we should paint it all over with red so that it would 
 not be distinguishable, — having regard to every change of course, if 
 we indicated the area covered by the little boats in this way, — 10 miles 
 in every direction. Tou have to bear in mind that these are but a 
 small part of the sealing fleet. The entire number of the vessels is 
 given as 117. This represents 19 vessels. 
 
 Mr. Garter. — We have the logs only of these 19 vessels. 
 
 Mr. Phelps. — Yes; that is all we have the logs of. Now, suppose, 
 Sir, that we had the logs and were to take the pains of adding the 
 courses and localities of the balance of these 116 vessels, that is to say 
 97 more; we have given 19, — suppose we marked that map off with the 
 courses of the 97 more, it is plain and perfectly apparent that the whole 
 sea would be covered with such a network that it would be indistin- 
 guishable. 
 
 You would require a magnifying glass even upon such a large map 
 as that to follow the line of vessels; and when you add to that the area 
 covered by the small boats of the vessel, the entire sea is covered; and 
 I should like to know what chance the female seals would have of 
 escaping? That they bave escaped in past years to some extent is 
 because there were fewer vessels. With the whole 116, and as many 
 more as may be engaged in this hereafter, you would have the map, 
 showing the courses, so blotted and covered as to be indistinguishable. 
 You see what the destruction in the months of May and June is in the 
 North Pacific Ocean; and you see so" far from my friend Sir Eichard 
 Webster being correct in what he undoubtedly supposed or he would 
 not have said so— what he undoubtedly supposed was a sufficient pro- 
 tection of the gravid females — that these vessels would be all the time 
 behind the herd and only engaged in picking up such holluschickies as 
 were behind the female seals, when you come to look at the evidence 
 on both sides as to the arrival of the holluschickies you will find they 
 are very little behind the others. When you come to look, as we did 
 yesterday, at the amount of the catch, you will find they are 85 per 
 cent females at least. So that these vessels could have no object in 
 being there in the month of June to pursue that little remnant of the 
 holluschickies which would give them just about 15 per cent of what 
 they hitherto made, and those, small and young seals and less valuable 
 skins. 
 
 y on see from the necessary result, if we did not go any further, — if 
 this was all the evidence in the case, that from the necessities of the 
 case you cannot protect these gravid females by any such provision as 
 my learned friend Sir Richard Webster suggests — that is, to keep your 
 vessels back till the 1st May. They are not inside the Aleutian Islands 
 until late in June or in the course of June. As it is, they are there 
 from very nearly the end of June or the 1st July and they pass very 
 rajtidly, and up to that time they are, of course exposed to the depre- 
 dations of the sealers and to the same capture that has always taken 
 place. 
 
ORAL AEGUMENT OF HON. EDWARD J. PHELPS. 295 
 
 The President.— Do these log books for the year 1892 show that 
 the sealers sailed along in front of the north-west coast any time later 
 than the end of June'? 
 
 Mr. Phelps. — They do not. 
 
 General Foster. — 13 of them closed their sealing season on or before 
 the 16th June; 3 on the 17th June; 2 on the 19th June and 3 between 
 the 20th and 30th. 
 
 The President. — Their sealing season along the north-west coast 
 you mean? 
 
 Mr. Phelps. — Tes. 
 
 The President. — They went on further. You admit they went on 
 to the Commander Islands'? 
 
 Mr. Phelps. — I was about to state that they went up to the Port of 
 Etches, that you see at the top, to unload and perhaps to get supplies. 
 A vessel that went u]j to meet them in the latter part of June was 
 seized by the United States and that virtually broke up the voyages of 
 these sealers, because they could not unload or obtain the supplies they 
 wanted, so they had to close their sealing season. 
 
 The President. — Those go further — to July, August, and Septem- 
 ber. 
 
 Mr. Phelps. — Tes. 
 
 The President. — Where were they? 
 
 Mr. Phelps. — In another map it is shown where they were. They 
 went to the Asiatic side of Behring Sea. The modus vivendi kept them 
 out of the American side. 
 
 The President. — Of Behring Sea. 
 
 Mr. Phelps. — They went over there, and made a later sealing. 
 
 The President. — It was after June that they went over there? 
 
 Mr. Phelps. — Yes. 
 
 The President. — Was it in the latter part of June? 
 
 Mr. Phelps. — Yes. 
 
 General Foster. — After they made the exchange of the skins and 
 got supplies, they went over to the Asiatic side. 
 
 Senator Morgan. — Would you point out on that map where you first 
 get the entrance to the Pribilof Island of these herds that are going 
 over there. 
 
 General Foster. — UnimakPass is one of the favorite passes, accord- 
 ing to the testimony — the principal one. The testimony is that they 
 go out as far as latitude 172. 
 
 Senator Morgan. — I want you to point out the first one. 
 
 General Foster. — That is the principal one, [indicating on the map]. 
 
 Mr. Justice Harlan. — Are there some passes not easy to make the 
 passage through ? 
 
 General Foster. — There is one called False Pass at high tide. It is 
 not used by the seals, I understand. 
 
 Senator Morgan. — These seals that Mr. Phelps has been speaking 
 of had accomplished about two-thirds of the distance between Van- 
 couver and that pass to the Pribilof Islands at the time you mention? 
 
 Mr. Phelps. — You see from the map where they were when taken. 
 
 General Foster. — We will show later on what the character of that 
 catch is. 
 
 The President. — ^Do not they go after the seals along Unalaska — 
 along the promontory? 
 
 Mr. Phelps. — They are travelling there. I do not know how close 
 they pursue '- fc. 
 
 The President. — But you have no evidence about that. 
 
296 ORAL ARGUMENT OF HON. EDWARD J. PHELPS. 
 
 Mr. Phelps. — I do not know. I am not proceeding on that point for 
 the moment. 
 
 The President. — From Unalaska — from Kadiak? 
 
 Mr. Phelps. — Of course, all we know about the presence of the seals 
 in this connexion is what the logs of the Vfssels show. We show wliere 
 the vessels were and we show in most cases how many they caught— 
 not in all — and the course of the vessels, and we have taken what ves- 
 sels got them there and where they went. 
 
 Lord Hannen. — As far as these vessels are concerned, you seem to 
 suggest there is some reason why they could not be traced further. 
 Ton say they went up into the corner of TJnalaska to unload and get 
 supplies. 
 
 General Foster. — That is one i-onson. The other reason is tbey take 
 a straight course over to the Asiatic side. As you see, this map is on 
 a very large scale and we could not represent the Asiatic side. We 
 have another map showing where some of the vessels were. 
 
 Mr. Phelps. — We have another map to show where some of them 
 were — at the Commander Islands. We cannot trace them all of course. 
 
 To consider the question from another point of view. From the Brit- 
 ish Commissioners Eeport I take some extracts to show this. In Sec- 
 tion 177 they say. 
 
 Abreast of, or somewhat further north than, the Queen Charlotte Islands (Lat. 
 53°), a considerable body of seals is often met ■with at sea by the pelagic sealers in 
 May or June. These seals are then moving north ward. . . . 
 
 About the first of April the Tshimsiaus resort to Zayas Island (Lat. 55°) for the 
 same purpose (hunting of seals from shore). The hunting, as at present practised, 
 extends over April and the greater part of May ; off Banilla Island it is continued 
 through the greater part of June, but this difference is due rather to the option of 
 the Indians than to any diversity in dates in the arrival and departure of the seals 
 in the two places. Seals of both sexes and all ages are killed during the hunting 
 season, and a few full-grown bulls are seen, but are seldom taken. There is, in this 
 region, no interval between the arrival of seals from the north in the early winter 
 and their departure for the north, which occurs in the main about the end of May. 
 
 Sec. 178. Outside Cape Calvert (Lat. 52°) seals are most abundant in March, but 
 a few remain until the latter part of June. The seals coming first are chiefly females, 
 but after the Ist of June they are nearly all young males. Fully matured large 
 males are found in small numbers. 
 
 Sec. 182. About Barclay Sound (49°) the seal are first reported in December. . . 
 The greater number leave before the end of April, when they begin to travel north, 
 but a few are killed, further out at sea, sometimes^s late as the 15th June. 
 
 Sec. 184. Captain John Devereux, who has been for twenty-seven years on the coast 
 of British Columbia . . . informs us, in reply to questions addressed to him, that 
 from the latter part of November, or early in December, to the beginning of June, 
 the fur-seal is found off the coast of the entire length of Vancouver Island (48^ 30' to 
 51°), but that in the early winter the weather is altogether too rough for hunting. 
 
 Sec. 187. In the vicinity of Sitka (58°) some seals appear near the coast as early as 
 the middle of April, but they become abundant during IVlay, and some are still seen 
 in the early part of June. 
 
 On the Fairweather ground, in the Gulf of Alaska, (58° 30') seals are most numer- 
 ous from the IsO to 15th of June. About the 25th June, in 1891, they were' found in 
 abundance by the sealing-schooners on the Portlock banks, to the east of Kadiak 
 Island. 
 
 About Kadiak (57° to 58°) they are generally found from the 25th of May to the 
 end of June, being most abundant in the average of years about the 10th June. 
 They are seldom seen in July, and very rarely even stragglers are noticed after the 
 middle of that month. 
 
 That is the British Commissioners statement about where the seals 
 are. 
 
 We have the testimony of a good many witnesses on this point. 
 There is the testimony of a great number of Indians. Captain Light- 
 house, for instance — I cannot read them all in the time I have — says. 
 
 The fi'-st seal appear in the Straits (San Juan de Fuca) and on the coast about the 
 last of Deijember, and feed along the coast, and seem to be working slowly to the 
 
ORAT. ARGUMENT OP HON. EDWARD J. PHELPS. 297 
 
 north nntil about the middle of June, at 'which time the cows are pretty much all 
 gone, but the smaller seals remain until about the middle of July. . . Of all the 
 seals captured by me about one-half of them, I think, were cows with pup in them, 
 and it is very seldom that I have ever caught a full grown cow that was barren or 
 did not have a pup in her. (U. S. Case, Vol. II, pp. 389, 390.) 
 
 There are 14 other witnesses at Neah Bay to substantiate that. The 
 Indians near Queen Charlotte and Prince of Wales Islands depose as 
 follows. 
 
 George Skultka says : 
 
 We commence hunting when the geese begin to fly, and hunt for a month and a 
 half. The geese commence to fly about the last of April. . . I think about three 
 females with pup out of every ten killed. I kill lots of yearling seals but never 
 examine them as to sex. (U. S. Case, Vol. II, p. 290.) 
 
 Dan Nathlan; 25 years old says: 
 
 Have nuuted seals since I was a boy. This is the first year I ever hunted on a 
 schooner. I am now on the schooner Advenhire. When I was a boy I hunted seals 
 in Dixon's Entrance and off Queen Charlotte Island. Always hunted during April 
 and May. In June the seals all leave going north. . . About one-half of the seal I 
 have taken were females with pup. Have taken a very few -yearling's. (U. S. Case, 
 Vol. II, p. 286.) 
 
 Ntkla-ah another Indian says : 
 
 I was bom at Howkan ; I am very old, about 60 years old. I have been a hunter 
 all my life. Have hunted fur-seals every season since I was old enough in a canoe. 
 The seals always come before the birds begin to sing very much, and they are all 
 gone when the salmon berries get ripe, which I think is between the months of 
 March and July. I think about half the seals taken by me are females with pup. 
 (U.S. Case, Vol. II, p. 288.) 
 
 Another witness, Smith IN"atch (United States Case, Volume II, page 
 298), says: 
 
 Always hunted fur-seals between March and June. They make their appearance 
 in March in Dixon's Entrance, but at that time of the year the weather is so bad we 
 cannot hunt them. May is the best time to huut them because the weather is always 
 good. They all disappear in June and go north up the coast, I think to have their 
 pups. . . 
 
 Thomas Skowl, Chief of the Kas-aan Indians (United States Case, 
 Volume II, page 300), says: 
 
 I always hunt seal in Dixon's Entrance and off Prince of Wales Island, and hunted 
 them each year from March to June. The seals all leave about June 1st to go north 
 and have their pups, I think. . . Most of the seals taken by me are females with 
 pup. Never killed but one old bull in my life. 
 
 There is the testimony of a large number of these witnesses — (I do 
 not like to read what is but repetition) — which will be found in the 
 United States Case, Volume II, pp. 276 to 303. 
 
 There is a body of evidence that speaks of the course from Sitka to 
 Takutak, Latitude 57° to 59° 30'. Adam Ayonkee (at page 255 of the 
 United States Case, Volume II), says : 
 
 Seals are first seen and taken by me each year off Sitka Sound, about the middle 
 of April. Have followed them as far north as Cape Edward, where they disappear 
 about .June 30th. They are constautly on the advance up the coast. . . Most all seal 
 that I have killed have been pregnant cows. 
 
 Thomas Gondowen, from the same locality, says: 
 
 Have hunted seals between Sitka and Cross Sound. They first appear about the 
 middle of this month (Aprill, and disappear about the last of June. . . Most of the 
 seals killed are cows with pup. A few males are killed averaging from one to four 
 years old. (U. S. Case, Vol. II, p. 259.) 
 
 Percy Kahik I Day, who has hunted seals since a small boy, says : 
 
 The seals first make their appearance about the middle of April off Sitka sound 
 and disappear about July 1st. They are on their way up the coast. . . Most of the 
 
298 ORAL 'argument op HON. EDWARD J. PHELPS. 
 
 seal I liave taken have been pregnant cows. When the females arc with pup they 
 sjeep more, are less active in the water, and more easily approached than the inale 
 seals. But very few young male seals are taken by me along the coast. (U. S. Case, 
 Vol. II, p. 261.) 
 
 Peter Church, who has been sealing four years (at page 256 of the 
 United States Case, Volume II) says : 
 
 Have first taken seal off Sitka the middle of April. Followed the seal up the 
 coast as far as Yakutak, where they disappeared the last of June. . . Most of the 
 seals taken by me have been females with young. 
 
 There are -witnesses from Prince William Sound, latitude 60°. — 
 Nicola Gregreoff and thirteen other Indians. Mcola G-regreoff says: 
 
 In the latter part of March a few fur-seals usually first make their appearance in 
 Prince William's Sound and are more plentiful in tlie latter part of April. They are 
 mostly large males, very few females being taken, and tliose only toward the close 
 of the season in the latter part of May. Very few females taken in this region but 
 are pregnant. (U. S. Case, Vol. II, p. 234.) 
 
 Olaf Kvan says: 
 
 The first seals appear in Prince William's Sound about the first of May and were 
 formerly very plentiful, while now they are becoming constantly scarcer. I do not 
 know the cause of this decrease. All the seals which I have seen killed were females, 
 and the majority of these were pregnant cows. (TJ. S. Case, Vol II, p. 236.) 
 
 Mcolas Andersen says : 
 
 Seals are first seen at Prince William Sound about May Ist. (U. S. Case, Vol. II, 
 p. 223.) 
 
 The last locality I will refer to is Cook's Inlet. Metry Monin and 12 
 other Indians testify that: 
 
 The fur-seals usually appear about Cook's Inlet early in the month of May. They 
 were formerly found in this region in great numbers, but of late years they have 
 been constantly diminishing owing to the number of sealing vessels engaged in kill- 
 ing them. They do not enter Cooks Inlet. (U. S. Case, Vol. II, p. 326.) 
 
 Another witness Alexander Shyha says : 
 
 The fur-seals usually appear oif this part of the coast about the month of May, 
 but they do not enter Cook's Inlet. (U. S. Case, Vol. II, p. 226.) 
 
 There is another class of evidence as to where pelagic sealing is car- 
 ried on along the coast, and the character of that catch before the seal 
 herd enters through the passes. The Marquis Venosta, when this was 
 going on, put a question in the course of the argument on this point. 
 He enquired whether by the month of June the female seals are prac- 
 tically in Behring Sea, and whether at that time a considerable num- 
 ber of gravid females were not found along the Alaskan Peninsula. 
 Sir Eichard Webster said that by the 1st of May they would be so far 
 advanced that vessels sailing from Victoria on the 1st of May would 
 not be able to overtake them. I propose to refer to a little of the vast 
 amount of testimony on the subject of the duration of Pelagic sealing 
 on the coast. 
 
 The United States Commissioners, at page 365 of the United States 
 Case, say: 
 
 Pelagic Sealing is now carried on in the North Pacific Ocean from January until 
 late in June. 
 
 The British Commissioners at Section 649 of their Report say: 
 
 Behring Sea is now usually entered by the pelagic sealers between the 20th June 
 and the 1st July. 
 
 The British Commissioners at Sections 132, 212 and 282, say : 
 
 In pelagic sealing, the weather is usually such as to induce a few Vessels to go out 
 in January, but the catches made in this month are as a rule small. In February, 
 
ORAL ARGUMENT OP HON. EDWARD J. PHELPS. 299 
 
 Maroli, aad April the conditions are usually better, and larger catches are made. In 
 May and June the seals are found further to the north, and these are good sealing 
 months ; while in July, August and part of September sealing is conducted in Beh- 
 ring Sea. 
 
 Mr. Justice Harlan. — What Section is that? 
 
 Mr. Phelps. — I refer to sections 132, 212, and 282. The one I have 
 read, is, I believe Section 132, 
 Captain Claussen testifies as follows : 
 
 Q. When does sealing commence in the Pacific, and when does it end f A. Sealing 
 commences in tlie Pacific about the 1st of January and ends about the 1st of July. . . 
 Q. What percentage of the skins you have taken were cows? A. About 80 per cent. 
 Q. What percentage of the cows you have taken were with pup? A. About 70 per 
 cent. (U. S. Case, Vol. II, pp. 411-12.) 
 
 Sir Richard Webster says they can go ahead of the cruisers that leave 
 port on the 1st of May. They cannot go ahead. I have shown that all 
 the seals that are taken in the N^orth Pacific Ocean by pelagic sealers 
 are 85 per cent females; and of that 85 per cent, the greater proportion 
 are pregnant. 
 
 Now the only point that remains is to show the duration of the time 
 of this pelagic sealing in the North Pacific; that is to say that it goes 
 on from the period of the year when it begins— when the weather allows 
 it to begin — in January and February, down to the 1st of July. 
 
 Senator Morgan. — Now in January and February, if I understand, 
 they commence 200 or 300 miles down the coast — below at Cape Flat- 
 tery? 
 
 Mr. Phelps. — There is a good deal of evidence of that sort — that 
 they go into Behring Sea about the 1st of July. In very rare instances, 
 as I have stated before, the Tables show that a vessel got in the last 
 days of June; but the season continues, in the North Pacific, down to 
 the 1st of July. 
 
 On that point I refer to a number of these witnesses out of a great 
 many that I could read. 
 
 Captain Kiernan (at page 450 of the United States Case, Volume II), 
 says: 
 
 I usually commence the voyage near the coast of California in_the early part of 
 January and continue along up the coast, following the herd to its breeding ground 
 until the latter part of June, hunting all the way and entering Behring Sea about 
 the Ist of July. . . 
 
 Captain Lumens at page 458 of the United States Case, Volume II, 
 says: 
 
 Q. When does sealing commence in the Pacific and when does it end? A. It 
 commences about the 1st of January and ends about the last of June. 
 
 He speaks of four-fifths being females, as they all do. 
 Captain Carthcut, master mariner, at page 409 of the United States 
 Case, Volume II, says : 
 
 I usually left San Francisco in February or March of each year, and sailed aloag 
 the coast, following the herd north on their way to the breeding grounds on the 
 Pribilof Islands in the Behring Sea. I usually entered the sea. 
 
 that is Behring Sea. 
 
 About the first of July and came out in September. 
 
 Captain McLean, vouched for by the Canadian Inspector of Fisheries 
 as an expert sealer, at pages 436-7 of the United States Case, Volume 
 II, says: 
 
 To my knowledge they (the seals) go into Bering Sea after the 20th of June. You 
 may take it all the way from April, May and June; from April all the female seals 
 that you kill are with pup, up to about July 1st. 
 
300 OBAL ARGUMENT OF HON. EDWARD J. PHELPS. 
 
 Aud other witnesses, a good many of them examined by the British 
 Government, say the same thing. 
 
 Captain Warren of Victoria, who owns a large number of these vessels, 
 (at page 99 of the British Counter Case Appendix, Volume II), says : 
 
 The sealing season is divided into two parts, the coast season and the Behriog Sea 
 season. The coast season terminates about the end of June, but vessels intending 
 to go to Behring Sea generally leave the coast fishing during the month of May 
 sealing as they go northward, and reaching Behring Sea the end of June or beginning 
 of July. 
 
 Captain Herman E. Smith, a British witness (at page 61 of the same 
 2nd Appendix to the British Counter Case), says: 
 
 On the Vancouver coast in the early part of the season, about one-half of the seals 
 got are females, about one-half of which are with pup. As the season grows fewer 
 females are got, and of those got a small proportion are in pup. By the second week 
 in June, all females in pup have left the coast, as far north as Queen Charlotte 
 Island. 
 
 Frank Moreau, examined by the United States (at page 468 of the 
 2nd Appendix to the United States Counter Case) says : 
 
 Sealing commences about the 1st of January and ends about the last of June. 
 
 There is no contradiction to this. There are a great many more 
 witnesses that state the same thing; and we make out our point there- 
 fore from all these various directions, that the coast sealing — the coast 
 catch — does last clear up to the 1st of July. By that time the seals are 
 through the pass, and as they travel with great rapidity it does not 
 probably take them more than a day to go through the pass to the 
 islands. They are through the pass and the vessels follow in just about 
 the 1st of July — very rarely before. 
 
 Mr. Justice Harlan. — I would like to ask you this. Tour tables 
 in the case describe the different catches — speaking of the " Spring 
 catch", the "Coast catch", and the "Behring Sea Catch". What is 
 the dividing line, if there be one, between the "Spring catch" and the 
 "coast catch", or is there a dividing line? 
 
 Mr. Phelps. — I do not know that I can give a specific answer to that 
 question. I think that the "Spring catch" is perhaps lower down — 
 opposite the parts of the sea from which they start; and the "Coast 
 Catch" is along this coast round ftirther north. General Foster will 
 show it you on the map. 
 
 General Foster. — It says they were accustomed to go into Victoria 
 or Clayoquet Sound in the Spring — April possibly — or the latter part 
 of March to unload the Spring Catch; and the coast catch is taken up 
 here [indicating on the map], which is generally exchanged by a vessel 
 being sent up to take the skins and furnish the vessels with supplies. 
 That is called the "coast catch"; the whole altogether being the 
 "northwest coast catch." 
 
 Mr. Justice Harlan. — The reason for my asking the question is that 
 I have a table before my eye. On page 211 of the British Commission- 
 ers' Eeport there is a table showing the catch of the British Columbian 
 vessels for 1889. I take the vessel "Annie C. Moore". Spring catch 
 313, coast catch 489, Behring Sea catch 1318. Total 2120, 
 
 Mr. Phelps. — I see the distinction and I will try to answer it 
 to-morrow. 
 
 Mr. Justice Harlan. — I suppose the " spring" and "coast" catches 
 together constitute what is called the "North West Coast catch". 
 
 Mr. Phelps. — I will enquire about it. Sir. 
 
 Sir Charles Hussbll. — As I understand the contention we under- 
 stand the spring catch extends from the earlier months from January 
 
ORAL ARGUMENT OF HON. EDWARD J. PHELPS. 
 
 301 
 
 to April. Tlien at the end of that time they are supposed to go in for 
 supplies. 
 
 Mr. Phelps. — There is a large mass of testimony as to the character 
 of the catch taken, that I have gone through ; but I want to call atten- 
 tion now to a table that we have prepared, giving the logs of these 19 
 vessels. 
 
 Sir Charles Russell. — This is something new. 
 
 Mr. Phelps. — There is a good deal of evidence (I went over it by 
 classes yesterday), that has been before referred to, about the character 
 of the catch; it is composed of females that are pregnant, to a large 
 extent. It comes from the Captains, Masters and Seamen of some of 
 these very vessels that we have been talking about; but we have a table 
 of these 19 vessels (in addition to the diagram on the map), taken from 
 the logs in all cases, showing their total catch. 
 
 Sir Charles Russell. — Can I see this, as I have not yet seen it. 
 
 Mr. Phelps. — Certainly. You shall have a copy of it. 
 
 Sir Charles Russell. — I wish I had seen it in time to examine it. 
 
 Mr. Phelfs. — The "TJmbrina", for instance, setting out in January, 
 took 115 seals in February, 106 in March, 73 in April, 517 in May, 38 
 in June, and then 622 on the Asiatic Coast; making a total of 1,473. 
 
 The " W. P. Hall" took 50 seals in June, and 366 on the Asiatic 
 Coast; making a total of 416. 
 
 The "Maud S." took 82 seals in February, 103 in March, 134 in April, 
 627 in May, 13 in June, and 748 on the Asiatic Coast; making a total 
 of 1,707. 
 
 This shows without reading this Table all through — (we can furnish 
 copies of it) — that of these vessels, the greatest bulk of their sealing 
 in the Pacific (aside from the Asiatic Sealing), was in the month of May. 
 The whole catches of these vessels figure up like this : 28 seals in Jan- 
 uary, 835 in February, 994 in March, 1,938 in April, 8,360 in May ; 1,438 
 in June. Then there is the Asiatic catch which is not material for my 
 purpose. 
 
 The following is the Table referred to. 
 
 Kame of vessel. 
 
 Jan- 
 uary. 
 
 Febr. 
 
 Mar. 
 
 April. 
 
 May. 
 
 June. 
 
 Asiatic. 
 
 Total. 
 
 
 
 115 
 
 106 
 
 75 
 
 517 
 
 38 
 60 
 13 
 65 
 
 147 
 44 
 38 
 54 
 
 264 
 58 
 24 
 
 137 
 
 110 
 
 622 
 366 
 748 
 374 
 675 
 643 
 
 ""'42i' 
 
 1,473 
 416 
 
 1,707 
 964 
 
 1,149 
 
 1,246 
 983 
 
 1, e-23 
 
 1,8-18 
 985 
 527 
 480 
 750 
 187 
 262 
 441 
 
 1,273 
 680 
 641 
 
 W P Hall 
 
 
 
 
 82 
 
 103 
 
 134 
 85 
 
 627 
 440 
 327 
 410 
 824 
 958 
 713 
 267 
 342 
 310 
 683 
 187 
 157 
 209 
 713 
 414 
 262 
 
 
 
 
 
 1 
 
 
 22 
 
 35 
 
 53 
 
 139 
 121 
 280 
 665 
 87 
 
 33' 
 
 33 
 
 
 E li Marvin 
 
 6 
 
 181 
 75 
 49 
 
 144 
 141 
 103 
 161 
 
 Yiva 
 
 
 
 
 
 
 
 
 
 
 24 
 
 
 
 
 
 
 
 
 
 105 
 84 
 76 
 
 124 
 17 
 
 ■■""296' 
 
 
 
 41 
 
 210 
 
 7 
 
 16 
 
 38 
 99 
 21 
 22 
 
 69 
 175 
 14 
 28 
 
 
 
 fj D Hand 
 
 
 
 
 Total 
 
 
 28 
 
 835 
 
 991 
 
 1,938 
 
 8,260 
 
 1,438 
 
 4,046 
 
 17, 536 
 
 
 Now it will be seen from this Table that the total coast catch in 1892 
 I mean all round until they enter Behring Sea— of these 19 vessels, 
 fi-om January to April inclusive was 3,792; and. in the mouths of May 
 and June, 9,698, making a total of 13,490; in other words, 28 per cent 
 
302 OEAL ARGUMENT OP HON. EDWARD J. PHELPS. 
 
 of the coast catch was taken before the 1st May, and 72 per cent during 
 the months of May and June. Kow if you apply those figures to the 
 total catch of the Canadian fleet for 1892 which was 30,553 — if you 
 apply the same ratio to the other vessels that their logs shows to be 
 applicable to this, we have, from January to April inclusive, 8,555 seals; 
 and in the months of May and June, 21,998. If you were to apply 
 that to the four years, why, you get just about the same figures. 
 
 This, Sir, I am afraid, is as far as I can go to-day. I am sorry that 
 I have not been able to fulfil my promise to get thi'ough to-day: but I 
 am not through, and I have to ask the indulgence of the Tribunal for 
 a little while to morrow, if it would suit the convenience of the Arbi- 
 trators; I hope not to be very long; I should rather finish this week, 
 and I presume you would, but I am, of course, in the hands of the 
 Arbitrators in every respect. 
 
 I was about to remark that the upshot of all these figures and dia- 
 grams and this multitude of evidence is to show, first, that the montlis 
 of May and June are the principal, the largest, mouths for the catch 
 on the coast to the extent of almost 75 per cent — 72 per cent at 
 any rate; and that the vessels do not enter the Behring Sea until the 
 1st of July, the very time when the close time that is proposed by my 
 learned friends on the other side would allow them to enter; so tliat 
 the proposed close time would not keep tbem out at all. Of courso, it 
 does not interfere with the catch on the coast, and it does not interfere 
 with the catch in Behring Sea. 
 
 I want to consider the subject a little further (and especially the 
 question of zone), tomorrow, and some few other points in respect to 
 the sealing in Behring Sea. I have very little, if anything, more to say 
 on the subject of the catch in the Pacific Ocean ; and I think it will 
 become very apparent when we get through, what area must be 
 covered by the liegulations if you are going to save the seal — what 
 area must be covered and what time must be covered to answer the 
 purpose. 
 
 The President. — Mr. Phelps, we do not want to preclude you from 
 finishing this week, as you have just told us it is your wish; so, we 
 intend sitting to-morrow, but we would sit only to-morrow afternoon. 
 
 Mr. Phelps. — That will be quite enough for my purpose. 
 
 The President. — If it agrees with your arrangements, Mr. Phelps, 
 we would meet to-morrow at 2 o'clock. 
 
 Mr. Phelps. — Yes. The Tribunal, of course, will understand I am 
 quite in their hands in respect of the time. All times will be agree- 
 able to me, that are convenient to the Tribunal; and if 2 o'clock 
 to-morrow afternoon would be convenient, it would suit me. 
 
 The President. — We are somewhat in your hands also. 
 
 Mr. Phelps. — I beg you will not consider it so, Sir; I only regret 
 that I have been so long. 
 
 The President. — I mean to say, it would be useless to meet 
 to morrow and to have this extra and shorter meeting, if you did not 
 think you could conveniently say all you wanted to say tomorrow. 
 
 Mr. Phelps. — I shall finish tomorrow, Sir. 
 
 The President. — Then, if you pleasej we will adjourn till to-morrow 
 afternoon at 2 o'clock; we cannot sit before that time. 
 
 [The Tribunal thereupon adjourned until Saturday afternoon, the 
 8th of July, at 2 o'clock.] 
 
FIFTY-THIRD DAY, JULY 8™, 1893. 
 
 Mr, Phelps. — I had nearly finished yesterday, Sir, what I desired to 
 say in regard to sealing in the North Pacific, in support of our propo- 
 sition that the principal sealing — the largest months, the result of which 
 is far beyond that of any of the others, takes pla(;e in May and June, 
 and occurs in the localities indicated by the logs of the 19 vessels 
 whose logs we happen to have; and I entertain no doubt, because it is 
 open to no doubt, for all the general evidence in the case proves it, 
 that all the vessels that are engaged in that season of the year follow 
 just about that course; so that if we had all the logs, they would be 
 very nearly coincident or substantially coincident with these. 
 
 I wish, however, before quite leaving that point, to eini)hasize the 
 fact that the very large proportion of seals taken in those months and 
 in those localities not merely by these but by all sealers, are females in 
 pregnant condition. 
 
 I will only add one reference, in a very few words, to what I gave 
 yesterday on this point by reading one section from the British Com- 
 missioners Report. It is section 132 at page 21 and after that distinct 
 admission of the fact we need not support it by any further marshal- 
 ling of testimony. 
 
 With further reference to the effect of proposed time limits or close seasons on the 
 shore and sea-sealing respectively, and in order to prove that such an apparently 
 simple method of regulation is not equally applicable to hoth industries, it may be 
 shown that generally this effect would be not only inequitable, but often diametric- 
 ally opposite in the two cases. 
 
 l^Tow this part of the section is what I cite this for: 
 
 In pelagic sealing, the weather is usually such as to Induce a few vessels to go out 
 in .January, but the catches made in this month are as a rule small. In February, 
 March, and April the conditions are usually better, and larger catches are made. In 
 May and June the seals are found further to the north, and these are good sealing 
 months; while in July, August, and part of September sealing is conducted in 
 Behring Sea, and good catches are often made till such time as the weather becomes 
 so uncertain and rough as to practically close the season. 
 
 There can be no question therefore that, accepting my learned friends 
 suggestion that to do anything towards preserving these animals you 
 must put a stop to the slaughter of gravid females, he is entirely mis- 
 taken in his idea that you would effect that by keeping your vessels back 
 till the 1st May on the theory that before they overtook the migration 
 of the herd the female seals would have reached the Pribilof Islands. 
 Because all the evidence demonstrates that they do not pass through 
 
 303 
 
304 ORAL ARGUMENT OF HON. EDWARD J. PHELPS. 
 
 the Aleutian Islands till June, perhaps well on into June, and all the 
 evidence concurs as to the time at which they arrive on the islands, 
 bearing in mind, Sir, a suggestion that I believe fell from you, or at all 
 events from one of the Arbitrators, that it is true that the different 
 ages and sexes of the seals do not travel together. There is a great 
 deal of testimony to that effect, and a great deal of testimony other- 
 wise, which I do not care to go into; but while the bulls precede the 
 cows, the difference in time and in space is not sufficient to enable a 
 discrimination to be made. It is impossible to say that there is any 
 time for a vessel to go out, so that its catch would be confined to the 
 old bulls, even if the destruction at that time would not be particularly 
 injurious; but assuming that their place would be filled from the hol- 
 luschickie if they were destroyed, it would be simply reducing the 
 number of hoUuschickie. The time and locality is not enough to dis- 
 criminate between the females and the hoUuschickie. The evidence is 
 that they travel along substantially together. Tliere is some evidence 
 that the females precede them. Perliaps they do, and perhaps they do 
 not. I do not stop a moment to weigh the evidence on this subject, 
 because it is plain, as I said before, that there is not any discrimination 
 practicable. It is not possible to say that a vessel can go in those 
 months, or into that locality, with the expectation of failing to take 
 female seals. 
 
 The President. — Practically there does not seem to be evidence that 
 in pelagic sealing many of those old bulls are killed — I do not believe 
 there is any evidence on that. 
 
 Mr. Phelps. — I agree with you, Sir; the testimony is that very few 
 of them are taken. I suppose they are a little in advance of the ves- 
 sels, or are more successful in keeping out of the way than the poor 
 females are. 
 
 The President. — They might be better marks as they are bigger. 
 
 Mr. Phelps. — Yes, and also they winter in the north, and do not follow 
 the migration of the herd, and do not come down south as far as Cali- 
 fornia, and have not so far to go; but whatever the reason is, which we 
 need not stop to speculate on, the fact is conceded on all hands. 
 
 I want to call attention to one other mass of testimony as to the time 
 these pelagic sealers go into Behriug Sea in point of fact, and this 
 indicates something that is worthy of notice. We have examined 79 
 witnesses, that is to say, of the many witnesses we have examined, 
 79 fix a date as to the time they enter Behring Sea, and their testimony 
 is — I should say that 79 testify — that they enter the Sea after June the 
 20th, and 68 of them between July 1st and July 15th. Of course, 
 those two classes of evidence comprise a good many of the same wit- 
 nesses, because there are but 79 all told, but out of the 79, I repeat, 68 
 say they entered the Sea after the 1st July. 
 
 Now, of the 316 Depositions taken by Great Britain and printed of 
 the pelagic sealers of all classes. Captains, Mates, hunters, Indians and 
 everybody, the question is only put to 5 of them as to the time at which 
 they go into the Behring Sea; and those five testify precisely as these 
 American Witnesses 1 have cited do. One says the latter part of June ; 
 two say early in June, and the other two July the 20th. Why was not 
 that question put to the other witnesses in this great mass of evidence? 
 I think I can give the reason. It is proposed by these Commissioners to 
 make the close time as to Behring Sea terminate on the 1st of July, 
 
OBAL ARGUMENT OF HON. EDWXrD J. PHELPS. 305 
 
 that is to say, terminate just whea the pelagic sealing begins, when it 
 would not have any sort of effect at all and would not cut off a 
 single vessel except a very few of the laggards that have gone in on 
 the last day of June. It would have retarded them, I suppose, perhaps 
 a week; one vessel in ten or twenty, as the case may be, would have 
 been retarded. 
 
 E'ow, let me ask you, what would have been the effect if this close 
 time that is now proposed for Behring Sea had been enforced during 
 the last ten years and had been religiously observed. 
 
 In the light of this evidence — in the light of their utter failure to 
 contradict it and careful avoidance of a question which could be an- 
 swered in but one way — in the light of the admission I have read from 
 the British Commissioners that the coast catch terminates on the last 
 of June, and the Behring Sea begins on the first of July, what if this 
 Itegulatiou wliich has been submitted to you to be adopted for the pre- 
 servation of the far seal had been enforced for the- last 10 years. It 
 would not have saved the life of one single seal — not one — it would 
 simply have imposed upon these few that are earlier than the first of 
 July the necessity to wait a few days before they entered upon the 
 harvest. 
 
 What more can be said about this close time? Kot a single word 
 usefully. I leave it to the consideration of the Tribunal. The other 
 end of the close time yon will remember is proposed to be the .1 "ith 
 September. All the evidence is that every seal is out of the sea before 
 the 15th September'. It is no use at the other end, it is no use at the 
 beginning, and no use at the close. Now I come to the question of 
 zone. 
 
 The President. — Is it the case that there is no sealing after Sep- 
 tember at all either in or out of Behring Sea? 
 
 Mr. Phelps. — Inside of Behring Sea to which this alone applies, 
 there is substantially none after the 15th — I would not undertake to 
 say that after a very exceptional season some vessels might linger 
 longer; but nothing to any extent. 
 
 Sir Charles Etjssell. — There can be no sealing after the 15th 
 September practically — the weather prevents it. 
 
 The President. — The sealing ships do not follow the herds of seals 
 out of Behring Sea? 
 
 Sir Charles Kussell. — The weather prevents sealing. 
 
 The President. — Even in the North Pacific? 
 
 Sir Charles Eussbll. — So I understand. 
 
 Mr. Phelps. — Seals begin to leave along in September, and their 
 migration is determined undoubtedly by the weather. Some times in 
 a very mild season some seals remain. The great bulk of them migrate, 
 and the exact period of migration, as with all migratory animals that 
 I know anything about, is affected to a greater or lesser extent by the 
 weather and the season. Certainly so with migratory birds. 
 
 Now in respect to this zone, this 20 mile zone— around the islands 
 in Behring Sea. We have seen that the close time is of no avail at all. 
 How much will be the avail of the 20 mile zone? I will show you in a 
 few minutes a ludicrous picture of what Eussia has made out for itself, 
 by insisting upon this 30-mile zone which is 10 miles larger than they 
 proposed for us. We shall follow some of the vessels that we had in 
 hand before, through their very successful voyages around the Com- 
 mander Islands, and I shall show by their logs— all that we could get- 
 how much this 30-mile zone amounts to; that is to say, it amounts to 
 almost nothing. 
 
 B S, PT XT ^20 
 
306 ORAL AEGUMENT OF HON. EDWARD J. PHELPS. 
 
 In the first place, who is going to measure sach a zone and who is 
 going to patrol it in seas that are affected by fogs and rain and rough 
 weather more than any other part of the world. In fact, as you will 
 remember, as has been pointed out, it is those qualities that are essential 
 to the life of the seals; that is why they make their home there, that 
 is the difficulty of finding any other home, and those constituents are 
 necessary. You will remember that the testimony is that in a drive, it 
 the sun comes out clear, it is necessary to suspend the driving and 
 wait, because if the seals are pushed along in the^un, it is very inju- 
 rious. Who is to patrol this'? and what sort of a dispute is likely to 
 arise on the question whether you are within or without 20 miles in 
 such a sea as that — a solitude except for the sealers — not like the har- 
 bours of cities where there are light-houses and landmarks and land- 
 surveys and water- surveys, and all manner of craft. Who is to fix the 
 line, and how are you to prove it ? It is, of course, vague and indefinite ; 
 but that objection-is a small one, though not small by itself, — it is small 
 in comparison. Now, I should like to compare that proposal of the 
 British Government with Lord Salisbury's Agreement that has been so 
 often referred to as to this close time and its dimensions. 
 
 Sir Charles Ettssell. — Lord Salisbury has denied there was any 
 agreement whatever. 
 
 Mr. Phelps. — I beg your pardon; he has most distinctly admitted 
 that he made it, and we have proved that he made it by the letters of 
 the British Government over and over again. 
 
 Mr. Justice Haelaw. — His language was that they had decided 
 "provisionally." 
 
 Lord Hannen. — "Provisionally." 
 
 Mr. Phelps. — Tes. I know his words. I will come to that later. 
 
 The President. — At any rate, it has had no conclusion except as a 
 draft. 
 
 Mr. Phelps. — That is all. It was reported as agreed to by the 
 American Minister, — by the American Charge and it is admitted by 
 Lord Salisbury to have been made just as far as we ever asserted it to 
 be made — not that it was reduced to a Convention, but that it was 
 agreed upon as he says, "provisionally", whatever that means; that is 
 to say, it was understood it was to be carried out, and we have shown 
 that it would have been carried out, except for the remonstrance of 
 Canada. 
 
 Lord Salisbury's language is : " At this preliminary discussion it was 
 decided provisionally in order to furnish a basis for negotiations; and 
 without definitely pledging our Governments that the space to be 
 covered by the proposed convention should be the sea between America 
 and Russia, north of the 47th degree of latitude; that the close time 
 should extend from the 15th of April to the 1st of November," and so 
 forth. And that is the best that Lord Salisbury can say. 
 
 Sir Charles Etjssell. — In the same letter he says: 
 
 My recollection remains unchanged, that I never intended to assent and never did 
 assent to the detailed proposals which were put forward on behalf of the United 
 States, reserving my opinion on them for fuller consideration ; but that I expressed 
 the fullest concurrence on the part of Her Majesty's Government in the general prin- 
 ciple on which those proposals proceeded, namely, the establishment of such close 
 time as should be necessary to preserve the species of fur-seals from extermination. 
 
 Mr. Phelps. — I shall not exhaust the small time that remains to me 
 In going over that subject again. 1 have read to this Tribunal (and if 
 the references are forgotten I can furnish them again), all the lettera 
 
ORAL AEGUMEIMT OF HON. EDWARD J. PHELPS. 307 
 
 that were written on this subject, from the first letter from the American 
 Minister stating this agreement — the successive letters of the Ameri- 
 can charge stating it — the successive letters of Lord Salisbury and 
 Officials stating it again. There is the best, and the most, when he ig 
 pressed by Mr. Blaine with the recession of England from what was as 
 plain and complete an agreement as ever was made between nations, 
 short of reduction to an absolute Treaty, that he can say, I leave it on 
 that; — not because it is the strongest evidence on our side of what that 
 agreement was — it is the strongest evidence on his. I pass on now, I 
 need not occupy your time or my own further upon that point. The 
 close time agreed on between the American Minister and Lord Salis- 
 bury was from the 15th of April to the 1st Novr, from the American 
 coast on the east to the Russian Coast on the west, and all north of the 
 47th parallel of latitude. 
 
 Did Lord Salisbury ever take that back? Did he ever say to the 
 American Government: "I went too far; I am now advised, having 
 heard ftom Canada that it is unnecessary — that a similar area or a 
 shorter time would do?" Yes, he did to this extent — he says to Mr. 
 White in one of the later interviews (when Mr. White was charge tem- 
 porarily): — "The 1st of November is later than is necessary, and I 
 should think the 1st October is late enough." That was the amendment 
 he proposed after the time when communications had been received from 
 Canada — after the subject had been before not only the Foreign Office, 
 but the Colonial Office. That was the amendment he proposed to Mr. 
 Bayard — "You have made it on the whole a month too late;" to which 
 Mr. Bayard responded in substance, "I do not think so, but let us call 
 it the 15th October." Call it then the 1st October, if you please, which 
 is Lord Salisbury's own suggestion, and then it is late enough as far as 
 Behring Sea is concerned, indeed as far as all seas are concernc d — the 
 difference is not worth talking about. 
 
 I have said the 20 mile zone would be ineffectual. I mean inef- 
 fectual to patrol and to mark it out; but suppose it could be marked 
 out in such a manner as to be completely observed so that no seal ever 
 could be killed within 20 miles of the island. 
 
 What then ? What effect does it have on the sealin g in Behrin g Sea 1 
 What proportion of the nursing females that are out from the shore 
 would be protected? A small portion certainly, — I do not mean to say 
 that there are no seals within 20 miles, — a proportion so small that it 
 would be no good towards preserving the race. If you do not limit the 
 slaughter of these mothers and their young more than that, do not be 
 at the trouble, and expose these Governments to the expense and diffi- 
 culty, of limiting it at all. " The game would cease to be worth the 
 candle." It is agreed on all hands, that the cows arrive between the 
 early June and the middle of July, and they remain on the Islands. 
 The young are born, and propagation takes place; and they go out in 
 search of food at times that are stated generally as, "a few weeks;" 
 "sometimes a few days." It cannot be made perfectly definite, but the 
 general concurrence of the testimony is that it is a few days to a few 
 weeks after they land. Their young are usually born immediately 
 upon landing; and different witnesses state different times. But it is, 
 of course, like all such facts, a general one that it is impossible to 
 bring to an exact point. I^Tow where are these seals found when they 
 do go out 1 That enormous numbers of them are taken is shown. That 
 of those the greatest proportion are nursing mothers is shown. Now 
 where are they taken in the Behring Sea? That has not been quite 
 
308 ORAL ARGUMENT OF HON. EDWARD J. PHELPS. 
 
 shown in tbe argument. I Lave not particularly addressed myself to 
 that question. I have dealt only with the fact that they were taken in 
 the Sea, and wben they were taken, and wLat their condition was, and 
 what proportion of them were in that condition, and pointed out how 
 'the British evidence concurs with that of the American in its great 
 weight. 
 
 In the Appendix to the United States Case, Volume 2, we have from 
 a number of sealers a statement of the distances. 
 
 On page 400 Adair speaks of the distance — the distance I mean 
 within which they took the seals— as, being from 30 to 150 miles. 
 
 Then Bendt on page 404 gives the distance as from 10 to 150 miles. 
 
 The Peesidbnt. — Is this from the islands. 
 
 Mr. Phelps. — From the islands. On page 405 Benson gives the dis- 
 tance as 65 miles. 
 
 On page 315 Bonde says 10 to 100 miles off St. George Island. 
 
 On page 413 Collins says a distance of 100 miles or more. 
 
 On page 328 Jacobson says, a distance of 200 miles. 
 
 On page 448 Kean says a distance over 150 miles. 
 
 On page 435 Laysing a witness who is also examined on the British 
 side says from 50 to 150 miles. 
 
 On page 404 Maroney says, a distance of 40 to 200 miles. 
 
 These are all the witnesses I believe — it is intended to be aU the wit- 
 nesses — who give precise distances. 
 
 Captain Shepard of the United States Eevenue Marine made 18 seiz- 
 ures of sealing vessels, and states that the skins were two-thirds to 
 three-fourths those of femnles. He says that of the females taken at 
 Behring Sea nearly all aie in milk; and he has seen the milk on the 
 decks of sealing vessels that were more than 100 miles from the Pribilof 
 Islands. And these seizures were not confined to any particular sum- 
 mer. They range along from July 30th to August 15. 
 
 If you will have the kindness to turn to map ^o. 5 in the portfolio of 
 maps annexed to the United States case, you will see how it is marked. 
 
 The Pkesident. — The seizures map. 
 
 Mr. Phelps. — Yes it is map No. 5 called ^'seizures". On that map 
 are laid down the places where the vessels there named engaged in seal- 
 ing were seized, by Captain Shepard of the Revenue Marine, whose 
 testimony is given, and upon whose log and upon whose testimony this 
 Chart is compiled. 
 
 Mr. Justice Harlan. — What do those dates on the right below the 
 line mean? Is that the date of seizure! 
 
 Mr. Phelps. — The date of seizure; and it will be found that those 
 dates cover from June 30th to August 18th— they are all within that 
 period. The map speaks for itself The great majority, as the scale of 
 the map will show, of these seizures were 60 miles or more than 60 
 miles, and a considerable number of them a great deal more than 60 
 miles, clear down to the passes through the Aleutian chain. Not a 
 word can be added to that map as showing where sealers ai e found. 
 
 Now of the vessels so seized, we have plotted tbe logs of four — all 
 that we have — showing where they had been. This map shows where 
 they had been seized. Where had they been sealing ! If you will take 
 the first volume of the United States Appendix, and open it at page 
 525 (and in three subsequent pages 531, 543, and 574), you will find 
 plotted the courses taken by four of these vessels that were then seized. 
 The first one is the " Ellen", page 525. She entered Behring Sea on 
 
ORAL ARGUMENT OF HON. EDWARD J. PHELPS. 309 
 
 the 10th July. The log euds ou the 30th July; and perceiving where 
 the Pribylof Islands are — ou the left hand lower corner of that map, 
 the map shows, at a glance, whereabouts this vessel had been sealing. 
 Turning over to page 531 yoa find the log of the "Annie", which entered 
 the sea on June 23 — a week earlier, — and the log ends August the 15th. 
 You see where the vessel was — at least 60 miles from the nearest point 
 to the island that it reached; and almost all its cruise was a distance 
 round these Islands, 160 — 170 miles off. I am reminded by General Fos- 
 ter, that the island of Unalaska is 190 miles away; and you see from 
 the map that with the excei)tion of one excursion that this vessel made 
 up and back again, her sealing was all from 100 to 170 miles from the 
 islands. 
 
 The "Alfred Adams" map which will be found opposite to page 543, 
 shews where that vessel was taken. It approached somewhat nearer 
 the islands, but the great body of the seals were taken over 100 miles 
 away. That log begins with entering the sea on the 9th of July, and 
 ends on the 6th of August. . 
 
 Then the log of the "x\da", — ^the only other vessel we have — isfouud 
 opposite to page 574; and its nearest approach to the island was 46 
 miles distant. In the area that is marked within the dotted line along 
 on the 56 parallel or just below — between the 56th and the 55th parallel 
 of latitude — there are 556 seals taken iu 18 days, an average of 30 a 
 day. Then down near Unimak and Unalaska, you will see a large 
 number of seals and a good deal of sealing done at that long distance. 
 
 The President, — Is it confirmed that those are seals on their way to 
 the islands, or on their way from the islands'? 
 
 Mr. Phelps. — They must be from the islands by the routes I have 
 given, because while one vessel chooses to enter the sea as early as June 
 20th, all the rest are in it in July ; so that the herd on the way to the 
 islands with their young must of course have reached the islands, 
 because they are all on the isLmds by that time. 
 
 The President. — As regards females, these were not seals with 
 young'? 
 
 Mr. Phelps. — ~So^ they are nursing females — females who have left 
 their young on the shore. 
 
 Sir Charles Ktjssell. — We say some never were on the islands at 
 all. 
 
 Mr. Phelps. — One other observation on the cruise of the "Ada". In 
 the area that is indicated there which was nearest to the islands, the 
 average sealing was 30 seals a day. Down here at a distance of 175 
 miles or so the average of seals taken was 57. 
 
 Marquis Venosta. — During the month of July or the month of 
 August'? 
 
 Mr. Phelps. — During the period between July the 14th and August 
 the 24th. This vessel entered the sea on the 14th July, and the log 
 that we have published and from which this is plotted, ends on the 24th 
 of August. 
 
 General Foster. — The map shows seals taken each day. It shows 
 for instance on August 19th, 123 seals. 
 
 Mr. Phelps. — In the British Commissioners Eeport we have followed 
 every trace that the evidence on either side enables us to furnish our- 
 selves with, where any sealing vessel was at any given time, as well as 
 to find out the proportions of catches. With their Eeport they submit 
 a number of Depositions which give distances from the islands at which 
 the deponents seal. I wiU just refer to that giving the page. 
 
310 ORAL ARGUMENT OP HON. EDWARD J. PHELPS. 
 
 On pagfe 232 of the British Oonxmissioners Report or Appendix to it, 
 there is Andrew Laing who testifies that he has never been closer than 
 30 miles — usually 30 to 90 miles from the islands. 
 
 On page 236 Captain William Cox says that he has sealed usually 
 from 100 to 140 miles, and the nearest he has been is 80 miles. 
 
 Captain Petit on page 220 says he has usually sealed from 60 to 100 
 miles. 
 
 On page 224 Captain Baker says he has usually sealed from 30 to 90 
 miles. 
 
 On page 238 Captain Hack^tt says he has usually sealed from 50 to 
 150 miles, and never nearer than 50. 
 
 In the British Counter Case, in the 2nd Volume of the Appendix, 
 you will find some more Depositions in which these distances are 
 mentioned. 
 
 On page 47 Captain Sieward speaks of 120 miles. 
 
 On page 47 Captain Dillon says 90 miles. 
 
 On page 99 Captain Warren says a distance never nearer than 50 
 mile.s — generally 75 miles. 
 
 On page 100, Captain Pinckney says a distance of 80 to 150 miles 
 west of St. George's island. 
 
 On page 100, Mr. Hughes says a distance of 100 miles west of St. 
 George's island. 
 
 On page 108 A. W. Eoland says a distance of 50 to 125 miles. 
 
 On page 139 Frederick Crocker says a distance as far as 200 miles. 
 
 Mr. Carter. — All these speak of having taken nursing females. 
 
 Mr. Phelps. — Yes, every one; and in fact as I have already shown, 
 there is nothing else to be taken except a very small proportion of young 
 seals or of young females. The testimony I have gone over shows that 
 the vast proportion were of this character, — by an enormous preponder- 
 ance of evidence, and lam endeavoring now only to locate the places. 
 I do not go back to the other question. 
 
 'Sow will you kindly look at the same chart No. 5 of the United States 
 Case. 
 
 The President. — The purport of my question was this — that there 
 is a great difference between these catches after July in Behriug Sea 
 and the catches along the north-west coast before the seals have gone 
 to Behring Sea. Are they all mothers or gravid females? 
 
 Mr. Phelps. — Yes. Here they are gravid females. 
 
 The President. — They are nursing mothers? 
 
 Mr. Phelps. — On the north-west coast you mean ? 
 
 The President. — ^Yes. 
 
 Mr. Phelps. — In the Behring Sea, these animals have all had their 
 young — those that are going to hn ve any — and many are pregnant again. 
 
 The President. — The first sealing was much more detrimental to the 
 species than the second sort. 
 
 Mr. Phelps. — That is a matter of estimate. 
 
 The President. — Immediately I mean. 
 
 I do not want to interrupt your argument — I mean according to your 
 inference. It is your meaning I wanted to fix. 
 
 Mr. Phelps. — That depends on whether the young left on shore per- 
 ish. Young may perish after the death of the mother as well as before. 
 But it depends on another consideration which all the evidence shows, 
 that before these females leave the islands at all they are again impreg- 
 nated. 
 
 The President. — All these facts are before us. 
 
ORAL ARGUMENT OP HON. EDWARD J. PHELPS. 311 
 
 Mr. Phelps.— Yes, I need not stop about that. On that chart you 
 will also see localities where sealers were warned and seized in 1891 
 under the modus vivendi. Of the 63 vessels that were seized or warned, 
 48 were more than 20 miles from the Pribilof Islands. Of that number 
 more than half were more than 50 miles from the island; no vessel 
 was warned before the 5tli July, and there were until the middle of 
 August, warnings every day. Now suppose that all this time there had 
 been a 20 mile zone, and suppose it had been possible to patrol it, and it 
 had been patrolled so that it was not invaded — I should like to know, 
 in the light of these facts, what diminution would have taken place? 
 Some of course. I do not deny that seals are taken within 20 miles, 
 but a proportion so small that as I remarked a little while ago it is no 
 use at all to prevent it; you may as well let it go as to repress it to such 
 a line as that. 
 
 I will not deal with the attempt that is made to show that these cows 
 become immediately dry. The thing is preposterous. With no animal 
 of the mammal class is any such statement true. And more than 
 that, the nursing period of the young seals (in which they are help- 
 less), confirms that; and, more than that, this vast body of testimony 
 that the day before yesterday I presented to you to show the actual con- 
 dition of the great proportion of these seals which were taken. The 
 suggestion does not bear a moment's investigation. It was started by 
 this man Captain Warren who is proprietor, or part proprietor, of a 
 good many of these vessels, and he set up the suggestion that you may 
 immediately begin to kill seals as soon as they go to sea, because while 
 they are nursing their young they dry up immediately in a manner 
 unknown to any such animal — in a manner that would leave the young 
 to starve. That is the only attempt to break the force of this tre- 
 mendous body of evidence to prove that the fact is not so. 
 
 I need hardly detain you, because it is a comparatively unimportant 
 question ; but I will briefly touch upon it to show that the catch in 
 Behring Sea is much larger than that on the coast, in point of numbers. 
 The only years in which we have any evidence on that point are three, — 
 1889, 1890 and 1891; and 1891 is only part of a year, because the 
 modus Vivendi, as you will remember, came into operation during that 
 year; and, therefore, that is but partial. But taking from the British 
 Commissioners' Table the catch, at pages 205, 211 and 212, we have 
 summarised what it shows. In 1889 there are shown 21 vessels with a 
 catch on the coast, that is in the E'orth Pacific, of 12,371 seals. In 1890, 
 30 vessels, (you see they had increased one-half,) with a catch on the 
 coast of 21,390, pretty well approaching to double the catch of the year 
 before. 
 
 Mr. Justice Harlan. — You say "coast"; you mean "spring and 
 coast " added together. 
 
 Mr. Phelps. — I mean the North Pacific. 
 
 Sir Charles Russell. — South of the Aleutians. 
 
 Mr. Phelps. — South of the Aleutians, before you enter the Behring 
 Sea. In 1891 these vessels had increased to 45, and the coast catch that 
 year was 20,727. 
 
 Mr. Justice Harlan. — What is the last reference, the one of 1801? 
 
 Mr. Phelps. —It is page 212. 
 
 The President.— No. It is 205, 1 think. 
 
 Mr. Phelps.— That is an average of 567 skins to all the vessels during 
 the whole three years 
 
 Now take the same years, and see what was done in Behring Sea. 
 In 1889 there were the vessels that we have an accoant of, and the catch 
 
312 ORAL ARGUMENT Oi' HON. EDWARD J. PHELPS. 
 
 was 15,497 in Behring Sea, considerably larger than 21 vessels took on 
 tlie coast. In 1890, 24 vessels in Behring Sea took 18.165; in 1891, 46 
 vessels took 28,888. 
 
 Mr. Justice Harlan.— You say 46 vessels. 1 see the table says 50 
 vessels. 
 
 Mr. Phelps.— Some of them did not go into the sea. These calcula- 
 tions have been carefully made, and I am sure they are accurate. So 
 that, in 3 years, 86 vessels took inside the sea 62,550 seals. The time 
 of the Behring Sea operations is shorter. It is all comprised within 
 Jxily and August. The coast catch begins as soon as the vessels can go 
 out and it certainly is shown here to have occupied, more or less, Feb- 
 ruary, March, April, May and June, iMay and June being much the 
 largest months. This is an average of 727 skins a vessel in Behring 
 Sea. 
 
 Mr. Gram. — Is that only in the eastern coast of Behring Sea. 
 
 Mr. Phelps. — Yes. 
 
 Mr. Gram. — IsTot in the Asiatic? 
 
 Mr. Phelps. — No the eastern side. 
 
 Mr. Gram. — I think the western side is included in that; do not you 
 think so? 
 
 Mr. Phelps. — It may be. 
 
 Mr. Gram. — You will find it in the Commissioners' Eeport, para- 
 graph 68. 
 
 The President. — That was the first year of the modus vivendi. 
 
 Mr. Phelps. — Yes that accounts for the size of the catch. It must 
 be so — the modus vivendi was in operation. 
 
 Sir Charles Eussell. — Mr. Gram is quite right. 
 
 Mr. Phelps. — General Foster says there is an estimate there of about 
 5,000 on the Asiatic side. If there is any uncertainty about those 
 figures, we will refer you to other figures that are sufflcient for my pur- 
 pose. I think your suggestion is correct. It contains a certain amount 
 for the western catch. It does not affect the average. The average, 
 you will see, of the vessels pn the coast catch was 567 and the average 
 in the Sea is 737. 
 
 Mr. Justice Harlan. — ^Before you leave that, I want to ask as to this 
 table. On 205 there is a column there " Date of Warning " does that 
 mean those vessels had got into Behring Sea without notice of the modus 
 vivendi of 1891 and were warned out? 
 
 Mr. Phelps. — Yes tliey got into the sea presumably without notice. 
 
 The modus did not come into effect till June the 15th so that it is 
 quite probable the vessels got in without notice, but whether with or 
 without notice, they were there, and warned on those dates. 
 
 Sir Charles Eussell. — You will see in the ultimate column on the 
 right some never got in. The other represents those that got in. The 
 others were not in. 
 
 Mr. Phelps. — That is so, but the vessels I have been dealing with 
 are those that got into Behring Sea. 
 
 The President. — Have you made out a total proportion of catches 
 in Behring Sea and catches on the coast? 
 
 Mr. Phelps. — Yes, in this way, — that the average for th.e vessels in 
 the North Pacific on the coast is 567 skins. The average for vessels in 
 the Behring Sea is 727 and for half the time — the season in Behring 
 Sea being so much shorter. 
 
 Now I will ask your attention to a little more plotting we have done 
 for the benefit of the Eussian Government, as well as this Tribunal, to 
 inform them of the fruits of their diplomacy. We had yesterday 19 
 
ORAL ARGUMENT OV HON. EDWARD J. PHELPS. 313 
 
 vessels ou the Chart. This Obart shows the course of 8 of those Oaua- 
 dian sealers which we pointed out on the Chart yesterday, the only 8 
 that went over to the Eussian Islands. There is no selection because 
 we plotted every one that we could. 
 
 Mr. Justice Haelan. — Where are the logs of these vessels? 
 
 Mr. Phelps. — They are in the British Counter Case, Volume II, 
 Appendix, page 187. 
 
 You see where those 8 vessels started in the vicinity of Attu and 
 Agattu, belonging to the chain. You see the two Eussian Islands, and 
 around them the red line indicates a 30-mile zone; the black lines show 
 the course of each vessel, so that it can be traced all the way where it 
 went. You will see, in the first phice, how few of those vessels invaded 
 the 30 mile zone at all, — how few lines there are within the red circle 
 that indicates the 30-mile zone. 
 
 The Pkesident. — You do not show where the Eussians made the 
 seizures ? 
 
 Mr. Phelps. — ^o; we show the logs. 
 
 Sir Charles Eussell. — That is a fact in dispute between the two 
 Governments at present; but their allegation is they were seized within 
 the 3-raile limit or in hot pursuit outside the 3-mile limit. Asio some, 
 it is admitted they were seized outside the three mile limit. 
 
 Mr. Phelps. — We have plotted the logs of the vessels, and my 
 learned friend has correctly stated the contention. The contention is 
 that the boats had beeu within and were then found without; I do not 
 go into that. All we have is the statement that speaks for itself. 
 
 The President. — That shows the log was not quite accurate. 
 
 Mr. Phelps. — That is true. It is open to this criticism. We have 
 taken the logs of these vessels, not of the vessels seized. 
 
 The President. — None of these. 
 
 Mr. Phelps. — One I am told was, and the other seven were not. 
 We have taken the logs of these 8 vessels, and traced them on the 
 maps. If the logs are false or fictitious then, of course this amounts 
 to nothing, but assuming the logs were correct, because 7 of them were 
 not seized or complained of, you see where the sealing was done. Then 
 if you cast your eyes upon the black points indicated at the points of 
 the angles and courses outside, you will see where seals were taken 
 according to this log and the number where the catch is more than 50 
 in a day. Inside the 30 mile zone the catch is given, whatever it is, 
 whether more than 50 or not, and the actual number of seals shown to 
 have been taken by the log, within 30 miles, is shown on the map. 
 Outside of the 30-mile zone, only the daily catches were taken, that are 
 60 and upwards. 
 
 Mr. Justice Harlan.— On the right of the map you see 219 seals 
 taken in the 30-mile zone. 
 
 Mr. Phelps.— Yes, I am about to allude to that. The result is that 
 within the 30-mile zone, as shown by these logs there were 219 seals 
 taken; outside, 3,817. Now if the 30-mile zone had been then in force, 
 and had been observed and not violated, what proportion of the seals 
 taken by these eight vessels would have been saved? 219, or not 
 enough to warrant interference. 
 
 Mr. Justice Harlan.— Uo you mean it appears from the logs that of 
 4,026- seals 3,817 were taken outside the 30-mile zone. 
 
 Mr. Phelps. — Yes, and 219 inside. 
 
 The President.— The purport is, you do not mean to encourage the 
 Eussian Government to renew their arrangements with England. 
 
314 ORAL ARGUMENT OF HON. EDWARD J. PHELPS. 
 
 Mr. Phelps. — I am fortunately not charged with the conduct of their 
 diplomacy. 
 
 Sir Chables Eussell. — And my learned friend has already con- 
 demned or written the epitaph of diplomacy. 
 
 Mr. Phelps. — If the British Government had the information on 
 which these charges are founded and the Eussians had not, it is evident 
 that the Eussians have yet something to learn on the subject of pelagic 
 sealing; and in making those arrangements they will possibly verify 
 an old proverb, which does not belong to diplomacy, which is " the more 
 haste the less speed." What we have to do with it is to show the value 
 of this 30-mile zone. Now reduce the 30-mile zone to 20, and see of 
 these 219 seals how many would be left inside. 
 
 In leaving this — and I must not dwell on it, because a demonstration 
 in mathematics cannot be added to by being talked about — a paper lias 
 been laid before you which I have shown my learned friends on the other 
 side, containing certain extracts from evidence — nothing more I believe, 
 as to a fact which has been spoken of in this case by some witnesses as 
 tending to show that the female seals did not go out to obtain food — the 
 condition of things on the rookeries — 1 will ask attention to the evidence 
 there copied. I shall not say anything about it; it is evidence in con- 
 tradiction of that suggestion. 
 
 Now, is it possible that Eegulations of this character, a 20-mile zone 
 round the Pribilof Islands, when nine-tenths of the seals are taken out- 
 side it, and a time limited between the 16th of September and the first 
 of the following July, when no sealing at all would be done in Behring 
 Sea if there were no time limit, is to be the result of the high-sounding 
 and constantly repeated statement on the part of Great Britain all 
 through this diplomatic correspondence, that they were ready to join 
 and to do everything that is necessary for the protection of the seals? 
 Is that the result of the language of this Treaty in the Article that has 
 been so often read 1 Is it a compliance with the language 1 Is it oiiered 
 as a compliance with it? Is it at all in conformity with the instructions 
 which that Government as well as ours gave to the Commissioners who 
 ought to have settled the question and would have settled the question 
 if both sides had addressed themselves to it; and if it had not turned 
 out that one side was addressing itself to the question of what is 
 necessary, and the other side was addressing itself to the business 
 of preserving at all hazards, and in every possible way, and not only 
 preserving but increasing, the business of pelagic sealing? 
 
 A few words in respect to the Eegulations that have been submitted 
 by the United States. If the prohibition of pelagic sealing is not 
 necessary to the preservation of the seal, then there would be no war- 
 rant for adopting such Eegulations. We do not, for one moment, 
 claim and have never claimed that anything should be done here to 
 improve or benefit the business of the United States in this indus- 
 try, to give them a monopoly, or anything islse. That is not necessary 
 for the preservation of the race. There is where the authority of this 
 Tribunal stops. There is where the reason of it stops, and we should 
 not for a moment be consciously guilty of asking for a regulation that 
 is not necessary for that purpose, even though it might be indirectly, 
 somehow or other beneficial to the profits of this industry, with which 
 we have no more to do, in my judgment, than we have in preserving 
 the profits of pelagic sealing. Why, then, do we propose to prohibit 
 it? Because on this evidence it is demonstrated that it cannot exist, 
 to a degree that would induce anybody to engage in it, without exter- 
 minating the race. I do not say that you may take no females out of 
 
ORAL ARGUMENT OF HON. EDWARD J. PHELPS. 315 
 
 the herd without exterminating the race. That would be an extreme 
 statement. You cannot take enough to make this business worth fol- 
 lowing upon the evidence in this case which I have shown before to be 
 so conclusive and so overwhelming, without destroying the race. I 
 respectfully submit this question to the Tribunal, to the consideration, 
 in view of the evidence, of every Member of it — how far can you stop 
 short of that, and preserve the seals? Take the mouth of January and 
 consider that, or take the month of February, because January is too 
 small to be noticed, if there is anything at all. Take the month of 
 February and then go on to March. Go on in this increasing ratio to 
 April, May and June, and then go into Behring Sea till the 15th Sep- 
 tember when they are all gone. Draw the line if you can, where it 
 is enough short of a prohibition, to accomplish the object for which you 
 are assembled here, in the event that it turns out that the United States 
 have not that property interest or right to protection which enables it 
 to defend itself. If we have gone too far — if in this Regulation of 
 absolute prohibition you find we have gone further than is necessary, to 
 that extent you will curtail it of course — It would be your duty to cur- 
 tail the Eegulations we propose, bearing in mind that you cannot limit 
 the number taken. It is impossible to limit sex or even age. Draw the 
 line for yourselves, I respectfully submit, and see how far short of a sub- 
 stantial prohibition you can stop and conscientiously say that you have 
 preserved the race of seals from extermination. With the answer to 
 that question which the Tribunal shall reach, we are bound to be satis- 
 fied and we shall be satisfied. 
 
 Then as to the extent of area we have named in our regulations, East 
 of 180, and North of 35. 
 
 The President. — Does that comprise the whole of your limit with 
 Eussia? 
 
 Mr. Phelps. — It comprises the migration current, and to go further 
 than that, and take in the migration current through the Commander 
 Islands would be for the benefit of Eussia; which is what Lord Salis- 
 bury agreed to do at the instance of Eussia. That is not for our benefit, 
 and it is not for us to ask it here, nor is it within the power of the Tri- 
 bunal, as it is the preservation of the Pribilof Islands seals you are 
 charged with, because Eussia is not a party here. 
 
 The President. — You are satisfied with 180. 
 
 Mr. Phelps. — Yes, that takes in the migration course. Outside of 
 that there are only a very few seals, which we do not take into account. 
 
 The President. — 35 degrees goes below San Francisco. 
 
 Mr. Phelps. — It goes below San Francisco, and that is 12 degrees 
 lower down than the line agreed upon with Lord Salisbury, which was 
 47. Here again that limit of latitude, you will bear in mind, at that 
 time was criticised, but there never was any objection stated to it, and 
 if you are to repress sealing in the Pacific Ocean at all, 10 degrees 
 more or less do not amount to much; but we invite attention to that. 
 If it is too far, why, of course, you will limit it, bearing in mind that 
 we do not mean to claim anything more than is necessary. 
 
 These are the two propositions on the one side and on the other. 
 There is the Treaty that defines the dispute between these parties, the 
 object and purpose of this Arbitration. If this part of the case is 
 reached, there is the duty to discharge which the Tribunal has been 
 kind enough to accept at the request, and upon the instance of the 
 Governments. There is the evidence that points out the limits to which 
 thedischargeof thatdutymustinevitablycarryit; and when I say inevi- 
 tably, I do not mean to say that the Une we have adopted of 35° is the 
 
316 ORAL AEGUMENT OF HON. EDWARD J. PHELPS. 
 
 best one, the judicious one, the true one, or that the diiierence between 
 40 and 35 is inevitable. We simply suggest that as a proper boundary,, 
 as a just one, as a fair one, not meaning, of course, to say with the con- 
 tidence with which I have said some things here, that it is absolutely 
 uecessary to go to that extent. 
 
 A few words, and but a few on another topic, connected with the 
 Eegulations — namely, their enforcement. I misunderstood, owing to 
 not having had the advantage of reading my learned friend's remarks 
 yesterday, what he had proposed, and for that 1 should apologize. I 
 consider the case upon what J understand now that he does propose, 
 and that is, that a vessel seized for violation of any Eegulations that 
 the Tribunal should impose and the country should adopt, should be 
 handed to the British authorities to be dealt with. The error I made 
 was that, instead of handing over the vessels, we were to make appli- 
 cation and complaint in respect of them. Our Regulation, on the other 
 hand, provides for the seizing of such infringing vessel and taking her 
 into the ports of the United States to be proceeded with in Courts 
 invested with such jurisdiction by our Statutes on the principle of what 
 is known as prize law. All lawyers understand that the principles of 
 prize law do not exclude the nation to whose citizens the seized vessel 
 belongs. It condemns the vessel, but it does not exclude the nation 
 from asserting a claim based upon the charge that the vessel was improp- 
 erly condemned. If we seize a vessel and take her into the United 
 States the jurisdiction is in the Federal Courts, and the vesting of this 
 jurisdiction, as our Constitution does every jurisdiction which may affect 
 international relations with another country, in the Federal Courts, 
 is a very wise one for the purpose of securing other nati(ins against 
 being affected by the action of local Judges or Jurors or the pressure 
 of local prejudice or sectional feeling. 
 
 It is proposed on the other hand, and this is all that we are at issue 
 about, that if we seize a vessel, instead of taking her to our own port, 
 we shall take her to a British Port; that is the difference. 
 
 That the Courts of other nations would proceed in good faith in the 
 judgment they would render is a matter of course. We do not assume 
 that the justice to be done by the Federal Courts would not be done by 
 the Courts of British Columbia, or whatever the province was, but the 
 same point arises that arose between Great Britain and Eussia and was 
 set forth by Mr. Chichkine in which this was debated. You seize a 
 vessel in Behring Sea. You can do nothing but make a long voyage to 
 British Columbia. There is no port nearer than that. You have to 
 dispatch a vessel that ought to be on guard there, doing duty, to carry 
 that vessel through the sea a voyage of I do know how many thousand 
 miles. There is a practical difficulty in the way of that. 
 
 Sir Charles Exjssbll. — I am bound to point out to my learned 
 friend that that difficulty has been met, by the legislation of the two 
 countries concerned. It can only be effected by the legislation of the 
 two countries. 
 
 The modus Vivendi between Eussia and Great Britain has been given 
 effect to by legislation, which was only passed a few days ago, indeed 
 it was when I was in London the other day, and a substitute is pro- 
 vided under the act and if it is not convenient to hand over a British 
 vessel seized by Eussian authority to a British authority, then the 
 papers or vessel may be transmitted and action taken on them by Brit- 
 ish authority. 
 
 Mr. Phelps. — In its practical result it comes exactly to what I 
 understood my learned Mend as having proposed in the first instance. 
 
ORAL AEGUMENT OF HON. EDWARD J. PHELPS. 317 
 
 You do not seize the vessel, but you send an application, accompanied 
 by papers wliich are good as far as they go, to the other side to proceed. 
 That is the point. If they do not proceed you have a diplomatic corre- 
 spondence. 
 
 Lord Hannen.— To whom are the papers to be transmitted? 
 
 Sir Charles Etjssell.— In the case of an English vessel seized by 
 Eussian authority— taken or copy taken by the Eussiau authority and 
 transmitted to the English authority. 
 
 Lord Hannen.— That is to say within the English judicial authority. 
 
 Sir Charles Eussell. —Yes. 
 
 Lord Hannen. — And you proceed on the papers as if the vessel were 
 there. 
 
 Sir Charles Etjssell.— Yes each Government undertakes to prose- 
 cute. 
 
 Mr. Phelps.— What becomes of the vessel? Here is a vessel that, 
 on the theory of the case, is violating the laws of both countries. 
 
 Sir Charles Eussell. — It is charged with violating. 
 
 Lord Hannen.— The vessel is detained till the result of the trial. 
 
 Mr. Phelps. — But it cannot be detained. 
 
 Sir Charles Etjssell.— And I do not understand that from the 
 Act as it has been passed. 
 
 Lord Hannen. — Perhaps you can get a copy of the Act? 
 
 Sir Charles Etjssell. — Yes. 
 
 Mr. Phelps. — A copy was sent to me very recently from the Ameri- 
 can Embassy, but I have not had time to read it; I only know that 
 there is such an Act. 
 
 Now, stop a moment and rel3ect; here you are in the Behring Sea. 
 There is no American Port nearer than the United States, and no Brit- 
 ish port nearer than British Columbia. The United States cruiser 
 seizes a vessel caught red-handed in the act, — a criminal vessel, so to 
 speak, if that is a correct expression, and takes her papers and sends 
 tliem home. There is no mail from there. You have to keep them till 
 the United States cruiser reaches some American port, when, by some 
 American ofiQcial, these papers can be forwarded to Canada. Where 
 is the vessel in the meantime? You are dealing, I say, with a vessel 
 that is out for the purpose of violating the law and Eegulations; you 
 are not dealing with a responsible ship. You are dealing with a tramp 
 of the ocean. Is it going back to siTrrender itself at British Columbia 
 for the sake of being condemned? What interest is there in a country, 
 where all the sympathy is all the other way, in prosecuting this vessel? 
 
 The President. — They are registered vessels and covered by a flag. 
 
 Mr. Phelps. — Yes. 
 
 The President. — If they do harm in one year, they will not continue 
 to do it indefinitely. 
 
 Mr. Phelps. — -If they are not condemned, they will not go home, — 
 no ship of that character. I do not deal now with a vessel on an 
 upright errand which, having a false charge brought against it would 
 go home and meet it at once. 
 
 The President. — But a ship cannot become a vagrant on the high 
 seas unless it is a pirate. 
 
 Mr. Phelps. — No, but it can go to some other port and shelter itself 
 under another flag. I pointed out the other day what we meant as to 
 these vessels having a different ownership from the place of registry. 
 You see the practical difttculty of dealing with a class of vessels, that 
 are caught in this business. The best that can be done on my learned 
 friends'suggestion, is to take the papers and, when the United States 
 
318 ORAL ARGUMENT OF HON. EDWARD J. PHELPS. 
 
 vessel gets home from its long cruise, tLen transmit them and depend 
 upon the Provincial Government to institute such an action and press 
 it in such way and with su.ch evidence as will enable the Court to do 
 justice. I do not assume for a moment, — I do not permit myself to 
 assume that the Court will not do justice ; but I never knew a Court that 
 could do justice except at the instance of a plaintiff or prosecutor. 
 That is the first requisite; and evidence is the next; and until a pros- 
 ecutor takes up a case and presses it to prosecution, and furnishes the 
 Court with the requisite evidence, no Court in the world can execute 
 any justice in any case, civil or criminal. 
 
 Lord Hannen. — It seems to me there ought not to be any difficulty 
 about this. What you say is true, but you must remember the Ameri- 
 can Government would have Agents in the place where the trial would 
 take place, and probably would conduct the prosecution. 
 
 Sir John Thompson. — And the same question arose under the modus 
 vivenSi. The prosecutions there were in the British Columbian Courts. 
 They were taken by Her Majesty's Officers. 
 
 Mr. Ttjpper. — And condemnation followed. 
 
 Mr. Phelps. — Yes. 
 
 The President. — One of my Colleagues has justly pointed out to 
 me in all such international cases, in the case of the Convention for 
 Submarine Cables and the North Sea Fisheries, the mode of prosecu- 
 tion is provided for in such a way as that the course of justice is sure 
 to have its way. 
 
 Sir Charles Ettssell. — And in each case it is handed over to the 
 powers of the nationals it represents, as is provided in the modus vivendi. 
 
 Mr. Phelps. — There is a very great difference, allow me to observe, 
 between vessels seized in that part of the world where to carry them 
 into an immediate port is easy, and where escape is impossible. I deal, 
 not with a theoretical difficulty, but with a practical one. The difficulty 
 is in getting the vessel into the jurisdiction and getting the case before 
 the courts. It is a practical difficulty. 
 
 Mr. Justice Harlan. — According to your view then, the only differ- 
 ence in the vessel which is seized in Behring Sea, is whethfer you shall 
 take that vessel to the nearest American port, or the nearest British 
 port. 
 
 Mr. Phelps. — Yes, or nearest British or American vessel. 
 
 Mr. Justice Harlan. — I did not mean to say that that could be done 
 without, perhaps, some further legislation. That may or may not be. 
 
 Mr. Phelps. — No, I shall not take up much time in dealing with a 
 subject that does not depend upon evidence, and which the eminent 
 jurists and lawyers I am addressing are entirely masters of, and do not 
 need instruction from us upon. But I have an observation or two 
 further to make about this. As I have said, if a vessel is condemned 
 in the United States, by the operation of prize law, the judgment is 
 not conclusive; but if the vessel is taken into British Columbia and 
 is not condemned and is discharged, it is conclusive, as far as I can see, 
 practically; I do not see how the American Government practically 
 could deal with such a question. 
 
 Another question. We get these proceedings for the protection of 
 maritime rights arising in one way or another, so long as they are rights 
 under the usages of nations — we derive them by analogy. 
 
 Now in what case, I respectfully invite the Tribtinal to consider, when 
 a vessel exposes itself to seizure by violation of any^naritime right, no 
 matter what it is — in what case is it known that the vessel is not con- 
 demned in the country of the captor? H you choose, of course, in 
 
ORAL ARGUMENT OF HON. EDWARD J. PHELPS. 319 
 
 making a Treaty, to make a different provision, that binds the parties; 
 but I would respectfully submit to His Lordship, with his very large 
 experience in this particular branch of the law, more probably than has 
 fallen to the lot of either of the other members of the Tribunal, even 
 of Mr. Justice Harlan,— in what case, unless a Treaty provides for it, 
 is a vessel that is seized for a violation of a maritime right of a nation, 
 carried any where else? 
 
 Lord Hannen.— Will you allow me to make an observation? I have 
 already indicated what I am about to say, that I do not recognize there 
 is auy such thing as prize law, except iii the case of war; and you are 
 asking us by our regulations to give you the same right in peace as 
 there would be in war. It is nothing to the purpose. There are cer- 
 tain courts that have prize jurisdiction. Prize law properly speaking 
 only arises in case of war. 
 
 The President.— As admitted by other nations. 
 
 Mr. Phelps. — I quite concur in his Lordship's remark that prize law 
 is applicable to a belligerent state. 
 
 Senator Morgan. — That is a somewhat recent idea. Prize law origi- 
 nated not in a state of war, but originated in the right of reclamation 
 and in reprisal. 
 
 Marquis Venosta.— I think that by the convention for the protection 
 of the submarine cable, a public official has the right to ask for the 
 papers that make a record and to denounce the offender. That right 
 is admitted by the provisions of the Treaty. 
 
 Sir Charles Eussell. — It is so, and I do not think my learned 
 friend has realized what is the effect of taking the ship's papers or 
 indorsing the ship's papers. The moment that is done, when the ship 
 makes for any port, she cannot get out of that port without clearing 
 and without the assent of the authorities, and if she has no papers, she 
 is in the jurisdiction of the Local (Jourt, whatever it is, there, and may 
 be seized for the offence indorsed upon the papers. 
 
 Mr. Phelps. — I was only going in conclusion to advert to the lan- 
 guage of the proposed Regulations, in reply to Lord Hannen's sugges- 
 tion that in case of any such capture the vessel may be taken into any 
 port of the nation to which the capturing vessel belongs, and condemned 
 by proceedings in any Court of competent jurisdiction, which proceed- 
 ings shall be conducted, as far as may be, in accordance with the 
 course and practice of Courts of Admiralty when sitting as prize Courts. 
 It is proposed that the jurisdiction should be given that is analogous 
 as far as may be necessary. 
 
 Of course, I do not suppose that in the strict technical language of 
 the law, a vessel of this sort would be regarded as prize — that is quite 
 unnecessary to discuss. It is taken under the provisions of the 
 Treaty; but. Sir, I do not care to pursue this subject. 
 
 Mr. Justice Hablan. — Before you leave that, I want to ask Sir 
 Charles Eussell whether he doubts the power of the Tribunal to put 
 into our Eegulations, if we get to Eegulations, some such clause as is 
 in the modus vivendi of 1892. I do not understand you. Sir Charles, 
 to dispute our power to do that, but to insist that that would be inef- 
 fective till supplemented by legislation. 
 
 Sir Charles Eussell. — You have understated our submission, Sir, 
 as explained by both myself and my learned friend, Sir Eichard Web- 
 ster. Our position is this, that when the Eegulations are laid down by 
 this Tribunal each Power is bound to respect those Eegulations and 
 bound to give effect to them by legislation of their own; but that is 
 not in tbe power of this Tribunal, what legislation the particular 
 
320 ORAL ARGUMENT OF HON. EDWARD J. PHELPS. 
 
 Power is to carry out, or the machinery, in other words. That is to be 
 left to the respective Powers, and that is what is done under the Jan 
 Mayen Convention. Mr. Gram is conversant with that subject, and I 
 referred — and I think my learned friend Sir Richard Webster referred 
 to the Jan Mayen Convention as affording the example which we sug- 
 gest can be followed by this Tribunal. That is the view of the Treaty 
 which I and my learned friends respectfully contend for and submit 
 for the Tribunal's consideration. 
 
 Mr. Justice Harlan. — We could not then, in your view, provide that 
 the vessel seized should be turned over to either Government. 
 
 Sir Charles Eussell. — Our submission is that that must be left 
 to the respective Powers, to give effect to it, as it cannot be doubted 
 each Power will. 
 
 The President. — Whatever provision we make will not have legis- 
 lative force till it is turned into legislation in each country; but we 
 have the right to propose the substance of the legislation that is to 
 intervene. 
 
 Sir Charles Russell. — I have never said anything with deference, 
 to admit the right of this Tribunal to say that a vessel seized belong- 
 ing to Great Britain shoiild be taken by the Americans into an Ameri- 
 can port and there adjudged or vice versa. I have never said anything 
 intentionally to that effect, and if I have inadvertently done so, T should 
 deeply regret it. I have the passages before me where we discussed it. 
 
 The President. — Your opinion is that such Regulations ought not 
 to be made. 
 
 Sir Charles Russell. — And more than that, that this Tribunal 
 may lay down Regulations, but we submit to the court that the 
 enforcement of these Regulations must be left to the different countries. 
 
 Mr. Justice Harlan. — You deny that we can make a Regulation to 
 the effect that the ships of either Government may seize a vessel of the 
 opposite Government offending and take it even into the Courts of the 
 country to which the vessel belonged? 
 
 Sir Charles Russell. — To put it shortly we submit the Tribunal 
 has no power to suggest sanctions. They may make Regulations but 
 have no power to suggest sanctions for the enforcement of those Reg- 
 ulations. 
 
 The President. — The limit may be diflficult to draw between enforce- 
 ment and Regulations and what is sanctions and what is merely 
 rules to be followed. Take " warnings," will you admit you have the 
 right to say that a ship of one nation may warn a sealing ship of 
 another nation. 
 
 Sir Charles Russell. — That may be. 
 
 The President. — That would be sanctions. 
 
 Sir Charles Russell. — I should think liardly so. 
 
 The President. — The limit is very difficult to conceive. I do not 
 understand how you could preclude this Tribunal from all the rights of 
 making such a compromise between the two nations as they might 
 make if left to their own diplomacy. 
 
 Sir Charles Russell. — When once this Tribunal have said what 
 they judge is fair and equitable, it leaves the moral obligation on each 
 power adequately by legislation to give effect to the observance of 
 those Regulations. 
 
 Senator Morgan. — And only that. 
 
 Sir Charles Russell. — I do not know that any difflcmlty has 
 arisen up to this time in any of the Fishery Conventions. 
 
ORAL ARGUMENT OF HON. EDWARD J. PHELPS. 321 
 
 The President. — If we leave the case in such a situation that the 
 two nations are left to do things which we know that they will not do, 
 which is opposed to their views, we shall have done nothing. 
 
 Sir Charles Russell.— We cannot realise that. Sir, as a result 
 at all. 
 
 The President. — Suppose we make a Regulation, and do not speak 
 of the manner in which it is to be enforced. 
 
 Sir Charles Russell. — We have the modus vivendi as a good illus- 
 tration. 
 
 The PEEStoENT. — The modus vivendi has a Regulation. 
 
 Sir Charles Russell. — ^And it is enforced by British Regulations, 
 and I do not doubt similar British Legislation would follow on your 
 Regulations. 
 
 Mr. Justice Harlan. — Suppose that parts of the modus vivendi were, 
 in substance, put in the Regulations, would you doubt the validity of 
 that without saying it would enforce itself. 
 
 Sir Charles Russell. — I have already said there is grave doubt 
 whether this Tribunal has power to express sanctions. 
 
 The President. — Such as are embodied in the modus vivendi? 
 
 Sir Charles Russell. — Yes. 
 
 Mr. Gram. — We have an instance in the Congo Convention. It could 
 not be^ enforced without Legislation in each country. 
 
 Marquis Yenosta. — There are many Treaties including the mode 
 of proceeding and mode of enforcing the Treaty, and there Legislation 
 is required. There is the Convention for the protection of the subma- 
 rine cable. There is a mode of proceeding for that; a Convention for 
 the Fisheries in the North Sea, and there is a mode of proceeding for 
 that. There are Articles in the Treaty, and those Treaties, of course, 
 require Legislation, but the mode of proceeding for the purpose of 
 enforcing the provisions of the Treatj- — 
 
 Sir Charles Russell. — Was left to Legislation 1 
 
 Marquis Venosta. — Yes, but is established by an Article of the 
 Treaty. 
 
 Sir Charles Russell. — Yes ; in that case. In this present case, 
 the terms of Article VI, which, of course, would be in the minds of the 
 Tribunal, are that the Arbitrators shall then determine what concurrent 
 Regulations are necessary, nothing is said about what the sanction for 
 those Articles ought to be. I do not consider the question of any prac- 
 tical importance. 
 
 The President. — The Tribunal must reserve to itself to examine 
 that question, and we will see what we think about it. 
 
 Mr. Phelps. — Perhaps it turns out that I was not so much mistaken 
 yesterday with regard to the practical outcome of my learned friend's 
 proposal as he led me to think I was. It depends on which method 
 shall be resorted to, not to do the thing that is expected to be done, and 
 by what circuitous route you should reach the result of finding out how 
 not to do it. I do not propose to discuss that. 
 
 This very discussion, the discussion which springs up the moment 
 you attempt to deprive a nation of a right, upon some abstract theory 
 that it is not a right, aJthough it is so necessary to be done that you 
 will compel another nation to help them to do it — the moment yon enter 
 upon an inquiry of that kind you perceive thia embarrassment. Then 
 why any Regulations at all? If we have not the property right here — 
 the right of protecting ourselves that we claim, why go any further and 
 have any Regulations'? what claim have we upon Great Britain to help 
 us carry on our business? Solely because upon the very face and 
 B s, pt XV 21 
 
322 ORAL ARGUMENT OF HON. EDWARD J. PHELPS. 
 
 thresliold of this whole matter the thing that we claim is so completely 
 ours, and it is so necessary to the iuterest of the world as well as of our 
 own that it should be ours, that when, by some ingenious argument 
 you deprive us of the right, then at once you set about to compel the 
 other nations to join and enforce the very thing that we have no right 
 to do against their will. If they had the common interest which should 
 induce them to come forward voluntarily as they did in their original 
 agreement and say, we share in this necessity and therefore are willing 
 to contribute to it, that would be different. But here they are struggling 
 to the last, if this comes to Eegulations, in every conceivable way to 
 make the Eegulations worthless — to limit them in time, in space, in 
 manner of enforcement, in every way in the world; no ingenuity can 
 propose a suggestion that would emasculate such Eegulations of all 
 force, that you have not been entertained with. Can anything more 
 clearly illustrate the utterly preposterous theory — I say it very respect- 
 fully — preposterous in its result, on which this whole debate proceeds ? 
 Either the seals are necessary and proper to be preserved on the ter- 
 ritory under the jurisdiction where they belong, under the circum- 
 stances where they are found, for the purpose for which you preserve 
 them, that is, to enable the United States to administer this industry — 
 or they are not. It is either so, or not so. If so, the right of the 
 United States results inevitably from that state of things. If not so, 
 upon what theory are you going to force another nation against its will 
 to adopt regulations for our benefit? , 
 
 The President. — I am afraid you put the case a little far, because 
 we cannot admit the English Government is not wishing to preserve 
 and protect properly the fur-seal, in or habitually resorting to Behring 
 Sea, after the British Government has signed a Treaty to that effect in 
 virtue of which we here sit, 
 
 Mr. Phelps. — That depends. Sir, with much respect, upon whether 
 you read the Treaty or listen to my learned friends. I have endeav- 
 oured to point out the wide discrepancy between the profession and 
 tiie practice; between the promise and the performance. The Treaty 
 does go upon that stipulation; but what is the argument here? Why, 
 my learned Mend, Mr. Eobinsou, perhaps not noticing the force of his ' 
 observation, says. If you do so and so we should be worse off than if we 
 accorded the right to you. We should lose everything, and still be 
 charged with helping to mount guard over the interests we have been 
 deprived of. We should be worse off in the interests for which we have 
 been contending, which he has been frank enough to say is the business 
 of pelagic sealing. — If you take the Treaty, the correspondence and the 
 instructions, you find two nations met in a common purpose; and no 
 man can give a reason why they require any assistance in accomplish- 
 ing that common purpose, if they are at one with regard to it. — But 
 when you come to take the proceedings before this Tribunal, you find 
 nothing is more ingeniously and earnestly opposed, from every possible 
 point of view, than the adoption of any regulation that would really 
 efl'ect the very purpose for which in theory, and under the provisions 
 of this Treaty, the Tribunal is assembled. 
 
 The President. — It means they do not agree as to means. 
 
 Mr. Phelps. — It is more than that. It turns out from their discus- 
 sion that we are so far disagreed with reference to the means that we 
 are disagreed with reference to the object. 1 submit that to your con- 
 sideration without further observation, which would not elucidate it 
 
 I had designed to mention, but at this late hour I shall not go back 
 to discuss, one topic that I had omitted in its order, because at its 
 
ORAL ARGUMENT OF HON. EDWARD J. PHELPS. 323 
 
 appropriate time the reference did not happen to be in Court, and later 
 than that the convenient time did not come. I allude to it only for a 
 single remark. It is the subject of the Newfoundland Fisheries, as they 
 were spoken of in the United States Argument, and to which my learned 
 friends made quite an elaborate reply, citing from Lyman's Diplomatic 
 Correspondence, and some debates in the British Pailiament. I de- 
 signed to review that but time does not allow. I only wish it shall not 
 be understood that we have asserted anything in this argument that 
 we find it necessary to withdraw from. The statement, which will be 
 found supported by the quotations in the Appendix, is strictly accurate 
 in every respect. The Fisheries were granted to the Americans in the 
 Treaty of 1783 after the Revolutionary War, not because they were open 
 to the world, but because they were open to American and British sub- 
 jects; and it was conceded on both sides in that correspondence, except 
 for a single observation of Lord Bathurst in passing, who had nothing 
 to do with the negotiations, which is evidently a mistake on his part. 
 There is nothing to contradict that. It was conceded that these Fish- 
 eries, far out into the sea, at that time belonged to Great Britain, and 
 only as British subjects could the United States take part in them. It 
 was held so for a long time, and I think the rights of France now are 
 under a similar arrangement. Whether they have since been thrown 
 open to the world, is another questicin into which I do not care to enquire. 
 I only allude to it for the purpose of asserting respectfully the strict 
 accuracy of the position taken on that subject in the United States 
 Argument, whether it has much or little to do with the questions we 
 have discussed. 
 
 This, Sir, is the case of the United States Government; how imper- 
 fectly presented, as far as I am concerned, no one here knows as well 
 or feels as sensibly as I do. It is a case, Sir, that no American need 
 blush for. Its broad propositions of law, its absolute truthfulness of 
 fact, its honest and straightforward procedure, seeking no advantage 
 and taking none, are all before the Tribunal and before the world. We 
 stand upon the justice of this case. We have not found it necessary 
 to admonish you to beware of justice, of morality, of right, or to refrain 
 from doing the plain thing that on the face of this whole business ought 
 to be done, lest some far-sought and imaginary abstraction of theoretical 
 law might possibly be violated. That is not our position. We have 
 invoked justice. We have asserted that it is the only principle on 
 which international affairs can proceed or ought to proceed; and it 
 will be a sad day for the world if it ever reaches a contrary conclusion. 
 
 The controversy that is involved here, like all human controversies, 
 is transitory. It wiU soon pass away. If this herd of animals is to be 
 exterminated, the world will learn to do without it, as it has learned to 
 do without many things that are gone; but the questions, the real 
 questions, to which the attention of the world will be directed, — what is 
 the rule of conduct that international law prescribes in cases of new 
 impression between nations; what is the freedom of the sea; what are 
 its limits; what does it justify; what does it excuse, — those are ques- 
 tions that will remain. On the immediate issue of this controversy, 
 the decision of the Tribunal will be final. These great nations have 
 agreed to make it so; and what they have agreed to do, they will do. 
 On the larger question I have referred to, the decision of this Tribunal 
 is not final. From that there is an inevitable appeal to the general 
 sense of mankind. None will be more gratified, I am sure, than the 
 members of this Court, that it is so; that the opinion of jurists, of 
 lawyers, of publicists will follow with interest, and approve or disap 
 
324 ORAL ARGUMENT OP HON. EDWARD J. PHELPS. 
 
 prove, and I cannot doubt approve, the conclusions you arrive at. It 
 will be a source of satisfaction to you that the still better appeal to the 
 ultimate judgment of civilised men will also follow and pass upon the 
 judgment of this Court. It is, Sir, with a confidence predicated upon 
 the justice of the American case, inspired by the high character of the 
 Tribunal these nations have been fortunate enough to bring together, 
 and strengthened by the anxious solicitude every member of it has 
 shown through this long and wearisome discussion to reach a right con- 
 clusion, — that the United States Government submits this case to your 
 consideration. 
 
 The President. — ^Mr. Phelps, the diflacalt part has been thrown upon 
 you to speak the concluding words in this very eloquent debate after 
 your friends on either side had striven to make the task more arduous 
 for you. It has been discharged in such a manner as fully to deserve 
 our admiration, blending the deep science of the lawyer with literary 
 refinement and diplomatic dignity. We appreciated the delicate, even 
 when pressing touch with which you have gone over matters put before 
 us in manifold form. I beg I may be allowed to consider the laurel you 
 have won at this cosmopolitan bar as a fair addition to the wreath of 
 honors which yon conquered on different fields both in the Kew and in 
 the Ancient World. 
 
 Sir Charles Eussell. — Mr. President, w-e have now so far as dis- 
 cussion is concerned arrived at an end of this anxious and, protracted 
 proceeding. There is one word that I should like to be permitted to 
 say, a word that I am quite certain will receive full endorsement from 
 my learned friends. The word that I desire to say, Mr. President, is 
 for my colleagues and myself to express our deep gratitude for the 
 unvarying patience and courtesy with which we have been treated by 
 every Member of this Tribunal. I should like to be allowed to add 
 also how fully we recognize the manner in which your proceedings and 
 our labours have been assisted and rendered easy by the cooperation, 
 active and courteous, of the Secretaries and Assistant Secretaries of the 
 Commission itself. We ought also to recognise the courtesy which we 
 have received from the Secretaries of the individual members of the 
 Tribunal with whom we have necessarily been brought more or less in 
 contact. 
 
 Mr. President, we shall all of us have for many years to come a most 
 grateful recollection of the courtesy and kindness we have received. 
 
 The President. — I thank you, Sir Charles, in our names for all of 
 us, and the other gentlemen, for your courteous words ; and certainly, 
 as you say, the remembrance you will keep will be in the memories of 
 all of us as long as we are alive. 
 
 Mr. Phelps. — I may be allowed I hope. Sir, for my associates and 
 myself, as well as for my Government, to express my cordial concur- 
 rence in what has been so well said by my learned friend, the A.ttorney 
 General of England, every word of it. 
 
 I think the members of the Tribunal, other than yourself. Sir, may 
 be gratified if I venture to add one further word to what my learned 
 friend has said, and to express the sense that we all entertain, I am 
 sure, on their side of the table as well as ours, of the great ability, the 
 faultless courtesy, and the acute perception that has kept this discus- 
 sion within its proper boundaries, which has characterized your adminis- 
 tration. Sir, of the difficult office of President of this Tribunal. That 
 position was accorded to you, Sir, by your distinguished colleagues, 
 not merely on account of your personal fitness, a fitness which they 
 equally shared, but to a certain extent, undoubtedly, in acknowledg- 
 
OEAL AEGUMENT OF HON. EDWARD J. PHELPS. 325 
 
 ment of tlie more tlian generous hospitality we have had from your 
 Country. 
 
 And if I may intrude far enough to add a word for myself person- 
 ally, I feel that, perhaps more than any other of the counsel who have 
 been charged with the conduct of this case on either side, I have been 
 indebted to your own courtesy, and that of all the members of the 
 Tribunal, for your great consideration and kindness. I have no lan- 
 guage to express my appreciation of it. 
 
 The President. — We thank you again, Mr. Phelps, and for myself 
 I have tried my best to be impartial. That is the only thing. 
 
 As for my Country, France has been honoured by the choice of your 
 two Governments in regard to Paris, her chief town, as the place where 
 this Tribunal was to meet, and what you are pleased to say of the 
 French hospitality is what we consider has been but your due. 
 
 Sir Charles Eussell. — I have mentioned this matter to my friend. 
 Sir, and if that meets with the approval of the Tribunal, I would sug- 
 gest, if any requisition should be found necessary for the Tribunal for 
 further elucidation on any point, we might agree that the requisition 
 should be in writing, and that the answer to it on each side should also 
 be in writing. I do not know that we need suppose the possibility or 
 probability of such a question. If the question should arise, we should 
 suggest that such course should be taken. 
 
 The President. — The Tribunal will take heed of what you mention. 
 We cannot bind ourselves or preclude from ourselves the right and 
 proper duty conferred upon us by the Treaty to remain at liberty to ask 
 for any supplementary, either oral or written or printed, statement. 
 In case we do "we will give notice, and at any rate, as much as possible, 
 we will abide by the requisition you have put upon us. 
 
 Mr. Phelps. — We quite concur on our side in the suggestion of my 
 learned friend, subject always to the approval of the Tribunal. 
 
 The President. — The Tribunal will now take the case into its 
 deliberation; and in case any new meeting is necessary, which we do 
 not anticipate as yet, we will give notice to the Agents of both Gov- 
 eruments, who will instruct Counsel in consequence. 
 
 Mr. TUPPER. — I may say, Mr. President, and I think I can say it for 
 General Foster, if he will allow me, both he and I will be in attendance 
 upon the Arbitration, at all times ready to meet any calls that may be 
 made upon us. 
 
 The President. — We thank you, and are happy to know that we can 
 rely upon it. 
 
APPENDIX. 
 
 COITION IN THE WATER. 
 
 Aqnatic coition is suggested by the British Commissioners. 
 
 See Sees. 246, 295-297 of their report. 
 
 But they do not claim ever to have seen it. 
 
 They refer : 
 
 (a) To "four or five gentlemen". 
 
 Who and where are they? What have they said? What do they 
 know ? They do not appear in the evidence taken in the British Counter 
 Case. What has become of them? 
 
 (6) To "several intelligent and observant hunters". 
 
 Who are they? Where are they? What have they said? Such 
 matter is not evidence: it is not even hearsay. 
 
 (c) To Captain Bryant. 
 
 Bead what he says in "Monograph of North American Pinnipeds", 
 pp. 385 and 405. 
 
 In his deposition (U. S. Case, App., Vol. II, p. 6) he says : 
 
 In watching the seals while swimming about the islands, I have seen cases where 
 they appeared to be copulating in the water, but I am certain, even if this was the 
 case, that the propagation of the species is not as a rule effected in this way, the 
 natural and usual manner of coition being upon land. 
 
 If Captain Bryant's statement In the Monograi)h be correct, most 
 ample proof of it abould be forthcoming. But the evidence of those 
 most able to observe is directly to the contrary (see infra). 
 
 {d) Professor Dall. 
 
 The following evidence of this gentleman, published at page 359 of 
 the United States Counter Case, fully explains his former statement; 
 
 I learn that I have been quoted in the report of the British Behring Sea Commis- 
 sioners for the purpose of proving that coition at sea is practiced by the seals. In 
 connection therewith I have to say that my statements as to copulation in the water 
 rest largely upon assumption. Young bachelor seals are seen to chase females leav- 
 ing the rookeries and to play with them in the water ; pairs of seals are seen engaged 
 in a sort of struggle together and to remain caressing each other or apparently qui- 
 escent, sometimes for as much as an hour. From such facts, which I myself with 
 others observed and reported, it was considered not unlikely that these seals were of 
 opposite sexes, and that they were engaged in copulation, and, in the absence of 
 definite information to the contrary at that time, I so stated. . . But it would be 
 dangerous to rely upon these observations thus casually made, at a time when seal 
 life was not so well understood as now, to prove that coition in the water is prac- 
 ticed. I never had an opportunity to assure myself that the pairs of seals seen play- 
 ing were of opposite sexes, or, if they were, that their play was of a sexual nature, 
 or if it was, that the act was complete and effective. There does not seem to be any 
 way in which any one of these matters can be definitely proved. Even if they were 
 shown to be possible and to occur at times, the general belief in it by casual observ- 
 ers at one time, myself among the number, was always, as far as I know, coupled 
 with the opinion that it was an exceptional and abnormal occurrence. 
 
 t>^7 
 
328 DEAL ARGUMENT OF HON. EDWAED J. PHELPS. 
 
 Bryant therefore, remains, the only witness cited by the British Com- 
 missioners in support of aquatic coition. 
 
 On the other hand two great facts disprove the possibility of coition 
 in the water. 
 
 a) The harem system, which dominates the whole life and economy of 
 the animal. 
 
 b) The time of birth of the young. 
 
 Cows give birth on arrival (Eeport British Oommrs., Sec. 30 j Eeport 
 American Oommrs., U. S. Oase, p. 326). 
 
 The period of gestation is about twelve months (British Oommrs,, 
 Sec. 434j American Oommrs., U. S. Oase, p. 326). 
 
 Oows cannot be impregnated until after delivery. 
 
 Arrivals and delivery occur late in June and early in July with great 
 regularity. Impregnation must, therefore, take place within a week or 
 two after delivery of the pup, when the cows are on shore and guarded 
 in the harems (IJ. S. Oounter Oase, pp. 63-64), and especially so if the 
 British Commissioners are right in saying that the females do not leave 
 the rookeries for several weeks after the birth of their young (Sec. 30). 
 
 That arrivals are not later now than formerly, see U. S. Oase, p. 386, 
 table; U. S. Oounter Case, p. 397, evidence of W. H. Williams; XJ. S. 
 Case, App. Vol. II, p. 13, evidence of J. Stanley-Brown. 
 
 If females not pregnant were impregnated before arrival, births would 
 be earlier, which is not pretended to be the case. 
 
 The following evidence shows that aquatic coition is impossible : • 
 
 J. Stanley-Brown (U. S. Oase, App., Vol. II, p. 14) says: 
 
 Pelagic coition I DelicTe to be impossible. The process upon land by reason of the 
 formation of the genital organs is that of a mammal, is violent in character, and 
 consumes from five to eight minutes. The relative sizes of the male and female are 
 80 disproportionate that coition in the water would inevitably submerge the female 
 and require that she should remain under the water longer than would be possible 
 to such an amphibian. 
 
 Samuel Falkeuer {ibid., 165) says : 
 
 I am positive from my observation that copulation in the water cannot bo effectual, 
 and would be a most unnatural occurrence. 
 
 H. H. Mclntyre {ibid., p. 42), after seventeen years on the islands, 
 
 says : 
 
 It has been said that copulation also takes place in the watftr between these young 
 females and the so called breeding males, but with the closest scrutiny of~^he ani- 
 mals when both sexes were swimming and playing together under conditions the 
 most favorable in which they are ever found for observation, I have been unable to 
 verify the truth of this assertion. 
 
 J. H. Morton {ibid., p. 67), says: 
 
 A firm foundation, for the support of the animals, which the ground supplies, and 
 the water does not, is indispeusablej to oppose the pushing motion and forceful 
 action of the posterior parts of the male which he exerts during coition. 
 
 S. E. Nettleton {ibid., p. 76), says: 
 
 Eeferring to the question as to whether pelagic coition is possible, I have to say 
 that I have never seen it attempted, but from my observations I have come to the 
 eonclnsion that pelagic coition is an impossibility. 
 
 See also articles by Dr. Allen, U. S. Oase, App., Vol. 1, p. 407 and 
 
 deposition of If. A. Grebnitzki, U. S. Oounter Oase, p. 362. 
 
 The appearance of the act, not the reality, may perhaps have been seen : 
 J. Armstong (U. S. Case, App., Vol. II, p. 2), says: 
 
 I have seen seals in a position when it seemed to be attempted, but doubt whether 
 It is effectually accomplished. If it were, I think we should see pups born lata and 
 out of aeason, but such is not the case. 
 
ORAL ARGUMENT OF HON. EDWARD J. PHELPS. 329 
 
 J. Stauley-Brown {ibid., p. 14), says: 
 
 I have sat upon the cliffs for hours and watched seals beneath me at play in the 
 clear water. It ia true that many of their antics might be mistalien for copulation 
 by a careless observer, and tliis may have given rise to the theory of pelagic coition. 
 I have never seen a case of the many observed upon which the facts could be so 
 properly construed. 
 
 Captain Bryant's views upon tMs matter have already been cited. 
 
 Such sport is very natural, and is to be seen among many animals. 
 
 Mr. Macoun in his report (British Counter Case, App., Vol. I, page 
 139) cites the same authorities given by the British Commissioners. 
 Mr. Macoun's views are mere inference and hearsay, and he was, equally 
 with the British Commissioners, unable to tcitness a single instance of 
 pelagic coition either in 1891 or 1892, 
 
 The evidence submitted by the British Government (Brit. Counter 
 Case, App., Vol. II, pp. 43-121) consists of the affidavits of forty-six 
 sealers. These affidavits appeared for the first time in the British 
 Counter Case, so that the United States have had no opportunity to 
 reply. 
 
 The following seventeen of these sealers swear that they have never 
 seen the act throughout from two to nineteen years of experience: 
 McGrath, two years experience; Ryan, ten years; Fanning, four years; 
 McKean, seven years; Shields, seven years; Lorenz, three years; Baker, 
 five years; Christian, two years; A. C. Folger, nineteen years; C. 
 Peters, five years; A. J. Bertram, six years; A. McCarva, five years; 
 G. B. Miner, six years; H. J. Lund, two years; P. Carlson, four years; 
 
 E. A. Lewis, three years. 
 
 Seventy-five practical white hunters and sealers examined by the 
 British Government on other points are not asked to give their views 
 as to pelagic coition. The same is true as to thirty-one Indian hunters 
 in Behring Sea. 
 
 Of those who swear that they have seen the act performed in the 
 water, the following speak of having only seen it once: A. S. Campbell, 
 three years experience; F. Campbell, five years; G. Eobt-rts, four years; 
 W. O'Leary, six years; W. De Witt, four years; F. W. Strong, four 
 years; G. McDonald, six years; E. Cantillion, four years. 
 
 Three of the afore mentioned witnesses have seen it twice: T. Garner, 
 three years experience; W. G. Goudie, fls^e years; A. Billard, two years. 
 
 The following swear they have seen it, without saying how often : W. 
 Petitt; G. F. French; C. F. Dillon; C. J. Harris; E. S. Findley; H. B. 
 Jones; W. Heay; F. E. "Warrington; T. Magneson; A. Eeppen; T. H. 
 Brown; G. Scott; G. Wester. 
 
 Two of these witnesses, however, swear to a manner of coition which 
 is on its face impossible to the animal : A. S. Campbell (Br. Counter 
 Case, Vol., II, p. 48) and W. Petit {ibid., p. 43). 
 
 Two others swear that this occurred in May, which is impossible: G. 
 
 F. French {ibid., p. 45) and L. McGrath {ibid., p. 46). 
 
 The true explanation of what the above-named witnesses saw is given 
 by those witnesses who state that they have seen movements of the 
 character here in question in the water, but could not teU and would 
 not swear that they amounted to coition. See H. E. Folger (Br. 
 Counter Case, Vol. II, p. 91); G. E. Miner (p. 97); E. Eamlose (p. 72); 
 W. Shields (p. 70); J. S. Fanning (p. 95). See also Dr. Dall, whose 
 statement is quoted supra. 
 
 Only three witnesses swear to having seen the act performed often 
 or more than twice: A. Douglass (Brit. Counter Case, VoL II, p. 52); 
 O, Scarf (p. 67); C. Le Blanc (p. 51), 
 
330 OEAL ARGUMENT OF HON. EDWARD J. PHELPS. 
 
 When could these men have seen the act? Not when Bryant saw it, 
 for they were not there. Not before arrival of the cows, or the birth 
 would be early. Not after, or the birth would be late. 
 
 The suggestion of pelagic coition is completely opposed to all the 
 dominating and well understood habits of the animal, and seems to 
 have been virtually abandoned by the counsel for Great Britain. Very 
 wisely. Why was it ever brought forward? Only in the vain hope of 
 impinging in some small degree upon the powerful argument drawn 
 from the attachment of the seals to the American territory, by suggest- 
 ing that in some casual instances seals may have been at least begotten 
 outside of that territory. 
 
 Even if true, it would not affect the question in the smallest degree. 
 
II. 
 
 TABLE SHOWING THE EFFECT OF THE KILLING OF 
 BREEDING FEMALE SEALS IN DIMINISHING THE 
 NUMBER OF THE BREEDING FEMALES IN THE 
 HERD. HANDED IN BY MR. PHELPS ON THE 6TH 
 JULY, 1893. 
 
 These tables are made upon the following assumptions: 
 
 1. That the seals born in any year decrease annually at the several 
 rates indicated in the diagrams of the U. S. Commissioners (TJ. S. Case, 
 p. 353). 
 
 2. That each breeding female has a breeding life of eighteen years. 
 
 3. That each breeding female gives birth annually from and exclud- 
 ing her third year to one pup and that half of the pups are females. 
 
 4. For a basis upon which the effect of all the pelagic sealing from 
 1872 to 1889, inclusive, may be determined, a calculation is made in 
 Table "A" of the number of female seals which 1000 female seals, 
 divided into 250 three years old, 250 four years old, 250 iive years old 
 and 250 six years old, would produce and which would remain in 
 the herd at the end of each year for the period of eighteen years, after 
 allowing for all destruction proceeding from causes other than pelagic 
 
 TABLE "A". 
 
 
 l" 
 
 ga 
 
 34 
 
 4th 
 
 5lh 
 
 6ft 
 
 7tt 
 
 8" 
 
 9'1 
 
 loa 
 
 lltl. 
 
 12'k 
 
 13" 
 
 14H 
 
 15" 
 
 16" 
 
 1701 
 
 18» 
 
 
 500 
 
 444 
 250 
 
 407 
 222 
 107 
 
 439 
 204 
 148 
 120 
 
 458 
 220 
 136 
 107 
 100 
 
 478 
 229 
 146 
 97 
 89 
 90 
 
 504 
 239 
 153 
 105 
 81 
 80 
 85 
 
 529 
 
 252 
 
 160 
 
 110 
 
 88 
 
 73 
 
 75 
 
 75 
 
 555 
 265 
 168 
 115 
 92 
 79 
 69 
 67 
 70 
 
 578 
 278 
 176 
 121 
 96 
 82 
 75 
 61 
 62 
 68 
 
 594 
 
 289 
 
 186 
 
 127 
 
 101 
 
 86 
 
 78 
 
 65 
 
 57 
 
 60 
 
 65 
 
 602 
 
 297 
 
 193 
 
 133 
 
 106 
 
 91 
 
 81 
 
 69 
 
 61 
 
 55 
 
 58 
 
 63 
 
 598 
 
 301 
 
 198 
 
 1S9 
 
 lU 
 
 95 
 
 86 
 
 72 
 
 64 
 
 59 
 
 53 
 
 56 
 
 61 
 
 566 
 
 299 
 
 201 
 
 342 
 
 116 
 
 100 
 
 90 
 
 76 
 
 67 
 
 62 
 
 57 
 
 51 
 
 54 
 
 60 
 
 546 
 
 283 
 
 199 
 
 144 
 
 118 
 
 104 
 
 94 
 
 79 
 
 71 
 
 66 
 
 60 
 
 54 
 
 49 
 
 53 
 
 68 
 
 537 
 273 
 189 
 144 
 120 
 107 
 98 
 
 "74 
 68 
 62 
 57 
 53 
 47 
 51 
 53 
 
 535 
 
 269 
 
 182 
 
 136 
 
 119 
 
 108 
 
 101 
 
 87 
 
 78 
 
 71 
 
 66 
 
 60 
 
 66 
 
 53 
 
 45 
 
 46 
 
 45 
 
 557 
 
 263 
 
 179 
 
 131 
 
 113 
 
 107 
 
 102 
 
 89 
 
 81 
 
 74 
 
 69 
 
 63 
 
 58 
 
 65 
 
 60 
 
 43 
 
 40 
 
 38 
 
 
 
 
 3 " . .... 
 
 250 
 250 
 220 
 250 
 
 
 4 ti 
 
 208 
 225 
 236 
 220 
 
 
 
 188 
 213 
 208 
 205 
 
 
 6 " 
 
 177 
 188 
 194 
 198 
 
 
 
 156 
 175 
 187 
 191 
 
 
 8 •• 
 
 
 146 
 169 
 
 181 
 184 
 
 
 9 •• 
 
 
 
 141 
 163 
 174 
 180 
 
 
 10 ** 
 
 
 
 
 135 
 156 
 170 
 176 
 
 
 
 
 
 
 
 130 
 153 
 167 
 169 
 
 
 12 " 
 
 
 
 
 
 
 128 
 150 
 160 
 154 
 
 
 
 
 
 
 
 
 
 125 
 144 
 146 
 132 
 
 
 Id ** 
 
 
 
 
 
 
 
 
 120 
 131 
 125 
 110 
 
 
 
 
 
 
 
 
 .. 
 
 
 
 110 
 112 
 104 
 174 
 
 
 
 
 
 
 
 
 
 
 
 
 94 
 94 
 69 
 
 
 
 
 
 
 
 
 
 
 
 
 
 78 
 63 
 
 
 
 
 *' 
 
 
 
 
 
 
 
 
 
 67 
 
 
 
 1500 
 
 1583 
 
 " i' 
 
 
 
 ■ 
 
 
 
 
 
 
 
 
 1610 
 
 1668 
 
 1730 
 
 lS09'l906i999 2099 
 
 2189 
 
 2254 22U6i2293 
 
 2298 
 
 2119 
 
 2073 
 
 2056'2117 
 
 sealing. This computation for 1000 is applied in Table " B " to the total 
 pelagic catch at the end of 1882, and in Table "C" to the whole pelagic 
 catch at the end of 1889. 
 
 The percentage of breeding female seals remaining in each year after 
 suflfering all losses from natural causes, as taken from the United States 
 Commissioners tables, is as follows, beginning with 100 seals :— 
 
 1st year, 100; 2nd year, 60; 3rd year, 33J; 4th year, 24; 5th year, 
 20; 6th year, 18; 7th year, 17; 8th year, 15; 9th year, 14; 10th year, 
 13A: 11th year, 13; 12th year, 12J; 13th year, 12J; 15th year, 11^; 16th 
 year, 10 J; 17th year, 9; 18th year, 7^; 19th year, 5; and 20th year, 0. 
 
 331 
 
332 
 
 ORAL ARGUMENT OP HON. EDWARD J. PHELPS. 
 
 Note. The diagrams of the United States Commissioners are neces- 
 sarily framed upon conjectural assumptions, which it is impossible to 
 verify. It is believed, however, that no change in these assumptions, 
 which the truth in respect to the loss of seals by their natural enemies 
 other than pelagic sealers, were it known, would require, would call 
 for any material modification of the conclusions to which these tables 
 lead. 
 
 TABLE "B" 
 
 Showing the number of females, which would have been alive in 188^ except for pelagic 
 sealing, and which loould have appeared on the breeding grounds in 1884 {calculating 
 from Table A). 
 
 Years. 
 
 Number of 
 vears to 
 ' 1882. 
 
 Catch.i 
 
 Loss of 
 females. 
 
 1872 . . ... 
 
 11 
 10 
 9 
 8 
 7 
 6 
 5 
 4 
 3 
 2 
 ] 
 
 1,029 
 
 2,319 
 
 1873 . 
 
 1874 
 
 4,949 
 1,646 
 2,042 
 5,700 
 9,593 
 
 12, 6O0 
 
 13, 600 
 13, 541 
 17, 700 
 
 io, 388 
 3,289 
 3,890 
 10, 311 
 16, 596 
 20, 850 
 21, 896 
 21, 535 
 26, 550 
 
 1875 
 
 1876 
 
 1877 
 
 1878 
 
 1879 
 
 1880 
 
 1881 
 
 1882 
 
 
 137, 624 
 
 ^ Catch taken from American Commissioners' Beport (IT. S. Case, p. 366). 
 
 The American Commissioners give a hypothetical herd in which there 
 are supposed to be 1,500,000 females, of which 800,000 are capable of 
 breeding. It is seen, therefore, assuming the Pribilof herd to corre- 
 spond in numbers to the Commissioners' hs^pothesis, that in ten years, 
 of pelagic sealing, which destroyed 20,000 breeding females a year, the 
 number of females in the herd would be reduced by 361,840, or over 24 
 per cent of the whole number of females, while the breeding females 
 would be reduced, by 220,820, or 27| per cent of the 800,000 breeding 
 cows assumed by the Commissioners. 
 
 TABLE "C" 
 
 Shoioing the numbo- of females, which would have been alive in 1889 except for pelagic 
 sealing, and which luould have appeared on the breeding grounds in 1891 {calculated 
 from Table A). 
 
 Years. 
 
 Number of 
 
 years to 
 
 1889. 
 
 Catob.' 
 
 Loss of 
 females. 
 
 1872 
 
 18 
 17 
 18 
 15 
 14 
 13 
 12 
 11 
 10 
 9 
 8 
 7 
 6 
 5 
 4 
 3 
 2 
 1 
 
 1,029 
 
 2,178 
 
 1873 
 
 1874 -. 
 
 4,949 
 1,646 
 2,042 
 5,700 
 9,593 
 
 12, 500 
 
 13, 600 
 
 13, 541 
 17, 700 
 
 9,195 
 
 14, 000 
 13, 000 
 38,907 
 33, 8oO 
 37, 789 
 40, 998 
 
 10, 259 
 3,488 
 4,693 
 • 13, 070 
 22, 018 
 28, 175 
 29, 770 
 28, 423 
 35, 382 
 17,516 
 25, 326 
 22, 490 
 64, 897 
 54, 418 
 59, 820 
 CI, i97 
 
 1875 
 
 1876 
 
 1877 
 
 1878 
 
 1879 
 
 1880 
 
 1881 
 
 1882 
 
 1883 
 
 1884 
 
 1885 
 
 1886 
 
 1887 
 
 1888 
 
 1889 - - . 
 
 
 483, 420 
 
 ^ Catch taken from American Commissioners' Report (U. S. Case, p. ; 
 
ORAL ARGUMENT OF HON. EDWARD J. PHELPS. 
 
 333 
 
 The normal numbers assumed by the United States Commissioners 
 are, of course, hypothetical ; but the hypothesis is consistent with the 
 evidence. Any change in the hypothesis which the evidence may be 
 supposed to admit of would not materially change the result. 
 
 TABLE " D " 
 
 Showing loss in the number of female seals, which would he effected ly ten years of pelagic 
 sealing, hased on the supposition Ihat S0,000 breeding females were Ulled annually dur- 
 ing that period; allowance from natural causes being made on the basis of Table A. 
 
 1st year. 
 2d 
 3d 
 4th 
 6th 
 6th 
 7th 
 8th 
 9th 
 10th 
 
 Total loss of females . 
 
 Number of 
 females 
 killed. 
 
 Losa of 
 Lossof breed-] young fe- 
 Ing females ! males (under 
 
 20, 000 
 20, 000 
 20, 000 
 20, 000 
 20, 000 
 20, 000 
 20, 000 
 20, 000 
 20, 000 
 20, 000 
 
 200, 000 
 
 at the end of 
 the period. 
 
 26, 660 
 26, 580 
 24,360 
 23, 240 
 22, 040 
 21, 040 
 20, 600 
 
 19, 620 
 17, 780 
 
 20, 000 
 
 2 years) at 
 the end of 
 the period. 
 
 220, 820 
 
 17, 120 
 16, 400 
 15, 620 
 14, 860 
 14, HO 
 13, 660 
 12, 860 
 
 12, 680 
 
 13, 880 
 10, 000 
 
 141, 020 
 
 Total loss of 
 females at 
 the end of 
 the period. 
 
 43, 780 
 41,980 
 39, 980 
 38, 100 
 36, 180 
 34, 600 
 33, 360 
 32, 200 
 31, 660 
 30, 000 
 
 61, 840 
 
III. 
 
 OBSERVATIONS OF THE BRITISH COUNSEL 
 UPON THE TABLES HANDED IN BY MR. 
 PHELPS ON JULY 6™, 1893. 
 
 [Note.— In the following observationa only those facts or flgores asserted or given 
 l^y the United States have been dealt with. No new controversial matter has been 
 hitrodaced. The British government does not of course admit the truth of these 
 figures or assumptions, but seeks only to shew that if they are admitted and granted, 
 they establish oonclusions the very opposite of those sought to be deduced from 
 them by the tTnited States.] 
 
 I. The object with which Mr. Plielps' Tables are put for- 
 ward is to shew that the annual killing of a number of 
 female breeding seals will have a large effect in perma- 
 nently reducing the " herd." 
 
 It is not of course denied that the killing of breeding 
 females or males to a very large extent might in time pro- 
 duce a diminution in the '' herds", but it is contended that 
 the effects sought to be established by Mr. Phelps' Tables 
 are incorrect and exaggerated. 
 
 The estimate arrived at on page 6 of Mr. Phelps' Tables, 
 is that the annual killing by man of 20,000 breeding females 
 for 10 years, would reduce a "herd" of 1,500,000 female 
 seals (of which 800,000 are breeding females) by 361,840 or 
 24 per cent (see Table " U "). 
 
 But those who prepared this estimate, while they have 
 taken into account the loss due to killing by man, have 
 failed to give credit for the natural increase, which accord- 
 ing to table "A" would be going on during the same period 
 among those breeding females not so destroyed. 
 
 It would involve a tedious calculation to fix exactly what 
 this increase would be, but even supposing that the whole 
 number (200,000) killed during the 10 years, were killed in 
 the first year, yet still this would leave over 600,000 breed- 
 ing females to produce the increase; and assuming that 
 this 600,000 increased during the 10 years in the same ratio 
 as that shown on Mr. Phelps' Table "A" (viz from 1,000 to 
 2,189) the 600,000 would become 1,312,200. That is to say, 
 the female "herd" would by natural increase have been 
 augmented by 712,200 females, an increase which might 
 fairly have been set off against the 361,840 killed, but of 
 which the compilers of the table have taken no notice, and 
 for which they have given no credit. 
 
 In fact, the natural increase of the " herd " would more 
 than fill the void created by the killing of the females by 
 man, provided such killing was not pushed too far. 
 is?°(?^mii': '''^'.^® ^^- Plielps' Table "A" shews that the seal does 
 sioners Report, uot differ from otiior polygamous animals, such as deer, of 
 Paras. 371-376. ^iijch a reasonable proportion of females are annually 
 killed in all carefully managed herds without injury. 
 334 
 
ORAL ARGUMENT OP HON. EDWARD J. PHELPS. 335 
 
 The above natural increase has been taken at Mr. Phelpis' 
 valuation. _ Without endorsing the exact accuracy of that 
 valuation, it is clear that a large natural increase must 
 exist which needs to be credited in any correct computation. 
 
 The argument that the killing of every breeding female 
 decreases the herd pro tanto, in a geometrical ratio, is obvi- 
 ously untenable, otherwise those "indiscriminate" pelagic 
 sealers the kUler-whales and the native Indians would 
 have long since destroyed the whole number of seals. 
 
 Inasmuch as the tables of Mr. Phelps are based on the 
 Diagrams of the United States Commissioners, it becomes 
 desirable to examine these Diagrams somewhat more 
 closely. 
 
 II. The two Diagrams (A) and (0) are given by the united states 
 United States Commissioners to show the effects of "prop- °'°^' p- ^^^• 
 €rly regulated" killing upon land. They relate to the male 
 portion of a hypothetical "herd," which in its natural con- 
 dition would amount to 40,000 males and 40,000 females, united states 
 but which if land killing took place would, according to ^^^- p- ^^^' '™^ 
 the United States Commissioners, be reduced to 23,568 DiagranKo p 
 males and 40,000 females. sss, and uniUi 
 
 The same conclusions would hold true whatever the Itself ^* ^ 
 whole number of seals was, it being only necessary to 
 increase the figures in due proportion. 
 
 These two Diagrams relate to male seals. 
 
 Explanation op the Diagrams. 
 
 1, Along the lowest horizontal lines are arranged a num- 
 ber of figures representing successively the ages of the 
 male seals. Opposite each of these figures is a vertical 
 line representing by its length the number of male seals 
 which there are in the "herd," of the age represented by 
 the figure. 
 
 Diagram (A) represents the male "herd" of 40,000 seals trnitwi states 
 in its natural state, according to the opinion of the United °*°^ ^" ^^^' 
 States Commissioners, and before any killing by man haa 
 taken place. 
 
 From the Diagram it is appao-ent that in this "herd* 
 there would at any given time be 10,000 male pups under 
 
 1 year old ; there would be 5,000 yearlings or males under 
 
 2 years, but over 1 year old; 3,200 2-year-olds, or males 
 over 2 years of age but under 3 years old; 2,400 3 year- 
 olds ; and so on. And it is quite evident that the total 
 number of male seals in the "herd" may be obtained by 
 adding together all the columns. In Table (a) annexed, 
 the figures have been extracted from the United States 
 Commissioner's Diagram (A), and added up. The total 
 comes to 40,025, and agrees with the total marked on the 
 United States Diagram (A). 
 
 If this "herd" in its natural condition be in a state of. ^^^^ q^*^ 
 "practical stability," as the United States Commissioners pp. a?™™! ***" 
 for their purpose assume (that is to say, if the "herd" as cS^^s&TSd 
 a whole be neither decreasing nor increasing), then, on tfie line from bottom 
 average, the yearly nnmber of births will be equal to the"^*''*'"'^®- 
 yearly number of deaths. The "herd" will be increased c^^p.^ssl'^^ 
 each year by the birth of 10,000 pups, and decreased each lo. 
 
336 ORAL ARGUMENT OF HON. EDWARD J. PHELPS. 
 
 year by 10,000 deatlis from killer-wliales and other natural 
 causes, and thus the balance will be maintained. 
 
 By comparing the various figures with one another, the 
 yearly mortality from natural causes of the seals of any 
 particular age can also be seen. Thus, for instance, when 
 the "herd" leaves the Pribilof Islands, it consists of 10,000 
 male pups, 5,000 male yearlings, 3,200 male 2- year-olds, and 
 so on. But owing to the natural deaths in the ocean, when 
 it comes back, the 10,000 male pups, which will now be 
 entering on their second year of life, that is, becoming 
 
 CaYe "f^sf'^ted l-y®^'^-^^^®' ^^^^ ^^'^^ ^^^^ reduced to 5,000. The 5,000 
 liMfrom bottom, male ycarlings which left the Island in the previous season 
 will now have been reduced to 3,200; and so, in like man- 
 ner, every class of seal will come back older in age by a 
 year, but reduced in numbers, and on the whole, as has 
 been said, the male '<herd" will be reduced by 10,000. 
 But as soon as the "herd" thus reduced arrives at the 
 islands, it is again increased by the birth of 10,000 male 
 pups, and so the equilibrium is maintained. (All this can 
 be seen from an inspection of Table («.). 
 trniti»4 states. Diagram (C) in the United States Case shows the state 
 uStef ™tit^e3 of things produced by what the United States Commis- 
 Case.p. 866. slouers desigu&te SiS '^properly regulated MlUng" of msbles, 
 c^"p.^35^*unl or as they also express it " the male portion of the same herd, 
 ?2. tvhen judiciously worked by man?\ 
 
 This "herd" would, as the United States Commissioners 
 
 United States explain, " be greatly diminished, and the census of the whole 
 
 Case, p. 366, line j^g^^ correspondingly lessened, but when once reached the 
 
 new condition would be constant and self-sustaining;^^ and 
 
 they estimate this reduction as being "to nearly one-half 
 
 of what it would be in the undistured condition". On their 
 
 United states Diagram (0) they mark the new size of the "herd" as 
 
 ^''^^•^■'"■""'^'- 23,568 male seals. 
 
 A Table (c) has been prepared from the United States 
 Diagram (0) showing the various numbers of seals in the 
 reduced "herd" of various ages. When added up, the 
 total comes to 23,680 (a figure not very different from that 
 given by the United States Commissioners. For all prac- 
 tical purposes the difference is quite immaterial). 
 
 The yearly killing of males between 2 and 5 years on 
 the islands, which has caused this reduction, is estimated 
 by the United States Commissioners at 2,100,* and has 
 been marked by them on Diagi'am (C). 
 
 At a first glance, it may appear surprising that so small 
 a killing as 2,100 males per annum can reduce the "herd" 
 BO largely as is shown on Diagram (0). But it must be 
 remembered that the killing all takes place among male 
 seals from 2 to 5 years of age. Thus, for instance, the male 
 3-yearolds, which under natural conditions would be 2,400 
 in number, are by land killing reduced to 1,900. That num- 
 ber 1,900 is next year by natural deaths reduced to about 
 1,587, and then by killing on land is farther reduced to 
 l,p00, and next year the 1,000 by death from natural causes 
 
 * See Note at end. 
 
ORAL ARGUMENT OP HON. EDWARD J. PHELPS. 
 
 337 
 
 and land killing is reduced to 300 male seals. Hence, while 
 in five years natural deaths would reduce 10,000 male pups 
 to 1,840, natural causes and land killing together would, in 
 the same period, reduce 10,000 male pups to 300. If the 
 killing of male seals took place pro raid among seals of all 
 ages, it would reduce the " herd" to a very much less extent, 
 for it is obvious (without entering upon abstruse calcula- 
 tions of the value of male life at various ages to the breed- 
 ing power of the herd) that the seals which will be most 
 valuable for breeding purposes are those which are just 
 entering on adult life, having escaped the heavy mortality 
 attendant upon extreme youth, and having a long prospec- 
 tive period of breeding before them. The United States 
 Commissioners' Diagrams make it very apparent that the 
 system of land killing hitherto adopted takes exclusively 
 the young mature life of the herd, and when this is con- , 
 sidered, the reduction in virile male life shown in the Dia- 
 grams becomes explicable. 
 
 The numbers of the various ages of female seals shown Trmted states 
 in Diagram (B) are identical with those of the male seals un|f' ^' ' 
 at corresponding periods of life, and may thus be seen from 
 Table {a). On adding them up, we find that the following 
 are the assumed numbers of female seals out of a " herd" 
 of 40,025, shown by Diagram (B) : 
 
 Yotiiig females, under 3 years 18,200 
 
 Breeding females 20,960 
 
 Decrepit ; 855 
 
 Total 40,025 
 
 If the figures in the various Tables be raised proportion- 
 ately from a natural " herd" of 80,050, which by the killing 
 of 2, 100 annually is permanently reduced to 63,680, to a natu- 
 ral "herd" of 3,001,875, which by the killing of 78,750 
 per annum is permanently reduced to 2,388,937, we shall 
 have in the "herd": 
 
 Male pups 
 
 Hale yearlings 
 
 Males, from 2 to 5 years 
 
 Toung bulls, from S to 7 years. 
 
 Breeding bulls 
 
 Decrepit ■- 
 
 Total males 
 
 Female pups 
 
 Females, from l±o 3 years. 
 
 Breeding females - 
 
 Decrepit " . .... 
 
 Total females. 
 
 Natural con- 
 dition. 
 
 375, OOO 
 187, 500 
 285, 000 
 131, 260 
 610, 750 
 11,437 
 
 375, 000 
 307, 500 
 786, 000 
 ^2,437 
 
 .1,600,937 
 
 .1,600,937 
 
 Seduced con- 
 dition. 
 
 375, OOO 
 
 187, 500 
 
 228, 760 
 
 21, 000 
 
 74, 250 
 
 1,600 
 
 375, 000 
 307, 600 
 786, 000 
 32,437 
 
 .888,000 
 
 .1,500,937 
 
 The above figures agree nearly with those given on pp. 
 357-358 of the United States Case, the latter of which are 
 obviously round numbers. 
 B S, PT XV 22 
 
338 okal aerument of hon. edwaed j. phelps. 
 
 Obsebvations. 
 
 On looking at Table (a) we find that according to the 
 estimate of the United Stateg Commissioners the "herd" 
 in its natural condition ought to contain 3,500 young males 
 or young bulls over 5 years of age and under 7 years of 
 age (shown on the United States Diagram (A) by the 
 smaller green area). And we also see that in the natural 
 condition the number of adult males or bulls over 7 years ^ 
 of age, called by the Commissioners "breeding bulls," ought ' 
 to be 13,620 (shown in the same Diagram by the yellow 
 area). 
 
 In order to compare this state of things in the normal 
 healthy condition with the condition of things after "regu- 
 lated killing" is in continuous operation, we turn to Dia- 
 gram (C) and Table (c), when we find that the young bulls 
 are now reduced from 3,500 to 560, and that the breeding 
 buUs are reduced from 13,620 to 1,980. In other words, the 
 number of virile males available for the rookeries is less 
 than one-sixth of what it was before. (This is irrespective 
 of the question whether some even of those which remain 
 have been injured by driving, or are for any other reason 
 unfit for service.) 
 
 On looking at the Diagrams and comparing them, it is 
 clear that this enormous diminution of the breeding bulls 
 (so out of proportion to the yearly number of males killed, 
 viz., 2,100) is really due to the excessive killing of young 
 male life. This is especially shown by the rapid drop of 
 the curve on Diagram (0). 
 
 It is asserted by the United States Commissioners that 
 the 1,980 bulls left, can fertilize the female cows as effec- 
 tively as 13,620. It seems hard to believe that, if this be 
 BO, Nature should have created so many bulls to serve no 
 purpose, or that natural male life can be interfered with to 
 BO large an extent without injuring the reproductive powers 
 of the " herd." 
 
 2. It is also seen th at if, out of a natural " herd " of 40,000 
 males, man kills on land each year 2,100 (that is about one- 
 twentieth of their number), the male "herd" gradually 
 declines, until, when equilibrium has again been reached, 
 the male " herd" is only about one-half its original size. 
 The land killing of a certain number of seals every year 
 produces, therefore, far more than a, pro tanto reduction in 
 the size of the " herd". 
 AS^mtp i*M ^- ^* ^^ stated on the part of the United States that every 
 'death of a female encroaches pro tanto upon the normal 
 numbers of the "herd," and if prosecuted to any consider- 
 able extent will lead to extermination. This is not cor- 
 rect. By the^ro tanto diminution of the " herd " is meant 
 its reduction in a geometrical proportion, thus leading 
 to extinction. The error of this theory may be seen as 
 already stated, by noting that if it were true, the killing of 
 even one female a year above the natural proportion (as by 
 the permanent increase of the killer-whales by one extra 
 whale), would thus lead to extinction. But such a result 
 
OKA.L AROUMENT OF HON. EDWARD J. PHELPS. 339 
 
 is manifestly absurd. If in a natural condition each female 
 
 bore on an average only one female pup, the death of such 
 
 a pup before it had in its turn borne a female pup to replace 
 
 it, would of course produce such an effect. But each cow, 
 
 according to the United States Commissioners, produces 
 
 fifteen pups, so that there is a large reserve to meet pos- (B^"^'5f t^™ 
 
 sible causes of death without diminishing the " herd," even states Case, p. 
 
 if some are killed before they reach the breeding age at all. ^*- 
 
 4. The Diagrams also show that when the seals are in a 
 natural condition, there is a yearly death from natural 
 causes of 20,000 seals (lOiOOO male and 10,000 female). This 
 destruction arises from disease and killing by killer- whales 
 and other natural enemies. It is mostly effected at . sea, 
 and is entirely indiscriminate as to sex. If, then, pelagic 
 killing, -without distinction of sex, be so destructive as is 
 argued by the United States, it is difficult to see how, on the 
 pro tanto theory, the natural pelagic killing at sea, without 
 distinction of sex, of 20,000 seals annually out of a "herd" 
 of 80,000 of both sexes, should not long ago have extirpated 
 the ''herd;" or, on the other hand, why, if so large a de- 
 struction has not extinguished the " herd," a comparatively 
 email addition to that killing should be alleged to have 
 suddenly produced so destructive an effect. 
 
 5. In the above Tables and the Argument of the United 
 States' Commissioners it is assumed that every breeding 
 seal, male or female, lands at the islands every year. 
 
 6. The above-mentioned large reduction in the numbers 
 of breeding bulls, which is, according to the United States 
 Commissioners, produced by regulated killing, would lead 
 to an expectation that when land killing had been practised 
 for some time the size of the harems would be increased, 
 and the competition of the bulls for females diminished. 
 Of course the killing of females at sea would tend to pro- 
 duce a contrary effect. > „.,,„,. 
 
 7. If the killing of 2,100 males out of a "herd" of 80,000 ^^Yep as! 
 seals, or, what is the same thing, the killing of 78,750 males,; 
 
 or in round numbers 80,000 males, out of a " herd " of 
 2,380,000 seals of both sexes, is the most that can be 
 effected without depleting the "herd," it is evident, on the 
 United States Commissioners' showing, that the 100,000 
 males yearly killed on the islands has been too large a 
 number, unless the " herd " has, during the period in which 
 it was done, exceeded 3,000,000. The United States Com- c^j'^^gf |1^^1 
 missioners assert that this has not been the case. On the a. ' ' ' 
 contrary, they say that the " herd " has largely decreased 
 ■within six or seven years before 1891. They seem to esti- Page 337, Une 
 mate this decrease as having reduced the " herd " to one- *• 
 half its former quantity, but the estimates are conflicting. 
 Thenatives andDaniel Webster consider that the decline be- 
 gan in 1877-78. In any case itisquite clear that the killing 
 of 100,000 seals has been far too large according to the esti- 
 mates shown by the United States Commissioners' Dia- 
 grams, and would fully account for the diminution of the 
 i' herd " without reckoning the pelagic sealing. 
 
340 
 
 ORAL AEGUMENT OF HON. EDWARD J. PHELPS. 
 
 It is difficult to discover how the United States Oommis- 
 eioners arrived at this figure, 2,100. It seems more correct 
 to place it at 1,707*. In which case the yearly killing of 
 males out of a " herd" of 2,380,000 ought not to exceed 
 64,012 acccording to their Diagrams. 
 
 Table (a) showing the number of male seals of various ages represented in 
 Diagram {A), of the U. S. Commissioners as making up the " herd " of 
 i0,0S5 male seals. 
 
 Pups 10,000 
 
 l-year-olds 5,000 
 
 4 
 
 6 
 
 6 
 
 7 
 
 8 
 
 9 
 
 10 
 
 11 
 
 12 
 
 13 
 
 14 
 
 15 
 
 16 
 
 17 
 
 18 
 
 19 
 
 20 
 
 1, 660 I 
 
 1,500 
 
 1,410 
 
 1,360 
 
 1,330 
 
 1,260 
 
 1,240 
 
 1,150 
 
 1,120 
 
 1,050 
 
 930 
 
 740 
 
 560 
 
 305 
 
 
 
 Total 40,025 
 
 3, 200 > 
 
 2, 400 > 7,600 
 
 2, 000 S 
 
 1, 840 > 3,500 young bulls 
 
 (green). 
 
 , 13,620 breeding bulls 
 (yellow). 
 
 •Note. — This figure (1,707) is arrived at by examining the suoces- 
 Bive diminutions of particular classes of seals due to natural causes 
 and to land killing. An examination of Tables (a) and (c), shows 
 that natural causes reduce the 3-year-olds from 2,400to 2,000 in a year, 
 or 16i per cent., and that the similat decrease of the 4-year-olds is 
 2,000 to 1,840, or 8 per cent. Now, from the Tables it is seen that in 
 one year 3,200 male 2-year-olds are reduced by natural causes to 2,400, 
 and these 2,400 males are again reduced by land killing to 1,900, that 
 is to say, 500 are land-killed. These 1,900 are next year reduced from 
 natural causes by 16i per cent., that is, to 1,587, ana thus, in order to 
 bring them down to the 1,000 shown in the Table, 587 must be killed 
 on land. The 1,000 are again reduced by natural causes by 8 per cent., 
 viz., to 920, of which if 620 are killed on land, we get the 300 5-year- 
 olds shown in the Table. The total annual killing on land would 
 thus be — 
 
 500 3-year-olds. 
 
 587 4 « 
 
 620 5 " 
 
 Total 1,707 
 
ORAL ARGUMENT OF HON. EDWARD J. PHELPS. 
 
 341 
 
 Tahle {e), allowing the number of male seals of various ages represented in 
 Diagram (C) as making up the herd of 23,680 male seals. 
 
 Pups 10,000 
 
 l-year-olds 5,000 
 
 2 
 
 3 
 
 4 
 
 5 
 
 6 
 
 7 
 
 8 
 
 9 
 
 10 
 
 11 
 
 12 
 
 13 
 
 14 
 
 15 
 
 16 
 
 17 
 
 18 
 
 19 
 
 20 
 
 3, 200 ) 
 
 1, 900 } 6,100 
 
 1, 000 S 
 300*560 young bulls 
 260 S (green). 
 
 205 T 
 
 202 
 
 201 
 
 199 
 
 198 
 
 195 
 
 180 
 
 160 
 
 150 
 
 120 
 
 100 
 
 70 
 
 40 
 
 
 
 1,980 breeding bulls 
 (yellow). 
 
 Total 23,680 
 
IV. 
 
 OBSERVATIONS OF THE UNITED STATES COUNSEL 
 UPON THE PAPER SUBMITTED BY THE COUNSEL 
 FOR GREAT BRITAIN TO THE ARBITRATOR SINCE 
 THE CLOSE OF THE HEARING. 
 
 The Agfent of the United States has received notice from the Agent 
 of Great Britain of the submission of a new paper to the Arbitration. 
 
 The paper is entitled "Observations upon the Tables put in by Mr. 
 Phelps on July 6, 1893 "- The paper therefore purports to be confined 
 to observations upon certain tables which the counsel for Great Britain 
 had not had previous opportunity of examining. This is apparently 
 designed as a defence, or apology, for the action, certainly irregular, 
 of submitting an argumentative paper after the hearing, and without 
 leave. If the paper were confined to what purports to be the contents 
 of it, namely, observations upon the tables referred to, there might be 
 some excuse for it; but these observations occupy less than a page and 
 a half of the document. The remaining six pages consist of a wholly new 
 argument, designed to show that the annual taking of 100,000 males 
 when the herd is in a normal condition tends to destroy the virile life 
 of the herd. 
 
 The Counsel for the United States cannot help observing that the 
 submission of such a document is wholly irregular : but a failure to take 
 notice of it although quite justifiable, might be misinterpreted. 
 
 A careful examination by the Arbitrators of the contents of this paper, 
 should they choose to give it any examination, would suggest the 
 answer to it; but a few observations upon it, necessarily hasty, maybe 
 of service. 
 
 1. It is said on page 1 of these observations: "It is not of course 
 denied that the killing of breeding females or males to a very large extent 
 might in time produce a diminution in the herds, but it is contended that 
 the effect sought to be established by Mr. Phelps' tables are incorrect 
 and exaggerated." 
 
 But if the killing of females " to a very large extent" tends to produce 
 a diminution in the herds, as every one can see that it must, and if, 
 indeed, as every one can see, the killing of females to a small extent 
 even must have such tendency, the- material point is to ascertain to 
 what an extent such killing of females can be carried without causing 
 substantial diminution in the numbers; but this problem, the only 
 material one, the counsel for Great Britain neither in this paper nor in 
 the course of their argument make any effort to solve, unless by the 
 suggestion in these observations, that it appears from the tables that 
 the annual killing of 20,000 females would create no loss which would 
 not be counter-acted and supplied by the increase of the surviving 
 females. 
 
 The suggestion is that according to the rate of increase of each 
 female upon which the tables submitted by Mr. Phelps is based, if 
 342 
 
DEAL ARGUMENT OP HON. EDWARD J, PHELPS. 343 
 
 200,000 females out of a herd of 800,000 breeding females were killed 
 in one year, the loss would be more than made up by the progeny of the 
 remaining 600,000 at the end of ten years. 
 
 The error of this suggestion consists in this, that the diagrams of the 
 United States Commissioners upon which the table submitted by Mr. 
 Phelps was prepared assume the herd to be in its normal condition of 
 stability, where the deaths are equal to the births; that is to say, a 
 condition in which the herd will not increase in numbers; whereas the 
 calculation- in the paper referred to of the British counsel makes the 
 herd increase, thus contradicting the assumption. 
 
 It may, indeed, be true that a hypothetical herd of females assumed 
 by the American Commissioners, aud the ratio of diminution assumed 
 by their tables, may be too small or too large, one or both, for there is 
 no evidence upon which the correctness of such assumptions can ba 
 determined. This is expressely stated by the Commissioners, and their 
 diagrams are framed only for the purpose of illustrating, on the one 
 hand, the effect upon the numbers of the herd produced by natural 
 causes which are not under the control of man, and, on the other hand, 
 the effect produced by those same causes in conjunction with another 
 cause, which is under the control of man, namely, the killing by the 
 hand of man. 
 
 It is stated in this paper that the 600,000 breeding females left in the 
 herd after the killing of 200,000 would become in the course of ten years 
 1,312,200. This may be true, but, at the same time, the 200,000 killed 
 would, on the same hypothesis, become at the end of ten years 437,800, 
 that is to say, would augment the herd by 237,800. Thus it is seen that 
 this killing of females would vastly diminish the increase of the herd. 
 If we assume, as the United States Commissioners assumed in framing 
 their diagrams, and as we have every reason to believe the fact was 
 when the hand of man was first interposed, that the herd had reached its 
 normal stationary condition, this diminution in the increase occasioned 
 by the killing of females immediately becomes a diminution below the 
 normal numbers of the herd. 
 
 If it were possible to ascertain what the exact numbers of the herd 
 were in its normal condition, and also what the ratio of decrease from 
 natural causes was, the diminution created by the slaughter of females 
 might be accurately represented in numbers ; but, in the absence of 
 knowledge upon this point, we are compelled to resort to conjectural 
 assumptions, which, while they fail to afford us the means of stating the 
 diminution in accordance with the fact, nevertheless enable us to illus- 
 trate such diminution. 
 
 2. It is farther said, on page 1 of this paper: "Thus Mr. Phelps' 
 Table A shows that the seal does not differ from other polygamous 
 animals, such as deer, of which a reasonable proportion of females are 
 annually killed, in carefully managed preserves without injury". 
 
 This may be true in respect to a "carefully managed preserve", but 
 the implication is, and surely the fact must be, that such a course can- 
 not be taken anywhere else except in a "carefully managed preserve". 
 A preserve can only support and accommodate a certain number, and if 
 the natural increase tends to exceed that number, it is proper, and may 
 indeed be necessary, to reduce the herd by the killing of females. If 
 the learned counsel for Great Britain had indicated by what rules, 
 regulations, limitations and restrictions this herd of seals, when on the 
 seas, could be treated as a " carefully managed preserve", their observa- 
 tions might be more instructive. 
 
344 ORAL ARGUMENT OF HON. EDWARD J. PHELPS. 
 
 3. It is further observed, on page 2 of the paper: "The argnment 
 that the killing of every breeding female decreases the herd pro tanto 
 in a geometrical ratio, is obviously untenable, otherwise those "indis- 
 criminate pelagic sealers" the killer whales and the native Indians, 
 would have long since destroyed the herd." 
 
 These observations indicate great misapprehension. There is an 
 enormous tendency to increase in all animal life; this tendency is mod- 
 erated and diminished by the various enemies to which such life is 
 subjected, and, in the case of seals, by such enemies as killer whales, 
 deficiency of food and the killing by native Indians pursued long 
 anterior to the discovery of the islands, and which is treated by the 
 United States Commissioners, as it properly should have been, as one 
 among the natural causes of diminution. Killing by the hand of man 
 in the sea and upon the land are additional causes brought to operate 
 upon the herd after it had reached its normal condition of stability under 
 the operation of all other causes of diminution. 
 
 4. The residue of the paper seems designed to show that the annual 
 taking of 100,000 young males in the manner practiced by the United 
 States was too great a draft upon the herd, even in its condition before 
 pelagic sealing was practiced. If there is any force in this view, it must 
 be in the assertion, or suggestion, that the reduction in a hypothetical 
 herd (numbering of all sexes and ages, 80,000), from 13,620 breeding 
 bulls to 1980, brought about by a killing of young males in the manner 
 and to the extent practiced on the islands, is fatally excessive, as 
 impairing the virile power of the herd. It is enough to say, in answer, 
 to this, that the reduced number of 1980 gives one breeding bull to ten 
 females, there being in this hypothetical herd 20,960 females. The 
 known capacity of each breeding bull ranges, as the evidence shows, 
 from 20 to 50 females. 
 
 5. It is observed in this paper (p. 5): "It is asserted by the United 
 States Commissioners that the 1980 bulls left can fertilize the cows as 
 effectively as 13,620. It seems hard to believe that, if this be so, I^ature 
 should have created so many bulls to serve no purpose, or that natural 
 life can be interfered with to so large an extent without injuring the 
 reproductive powers of the herd." 
 
 Nature undoubtedly has many inscrutable mysteries, but this does 
 not seem to be among the number of them. Does not nature do the 
 same thing in the case of horses and cows and bovine cattle, and many 
 other animals? In all these instances the same number of males and 
 females are born, and yet one male suflflces for a much larger number of 
 females than even in the case of the seals. The purpose seems to be plain 
 enough. At all events, we know what the consequence is, and it is fair 
 to presume that such was the intended purpose of nature. It easily 
 enables a husbandry to be carried on by taking the superfluous male 
 life which would otherwise be expended in internecine conflicts, and 
 devoting it to the purpose of man. Whenever in the case of these 
 domestic animals the numbers are increased, as they easily may be, to 
 such an extent as to become unprofitable, economic laws furnish a 
 remedy, and the owners proceed by the killing of females to diminish 
 the herds which have become too abundant for profit. These are the 
 conditions and the only conditions under which it is ever permissible 
 to slaughter the females of useful animals. Such conditions can never 
 arise in the case of the seals. The annual demand for them far exceeds 
 the supply, and even if this demand should cease, the feeding of the 
 herd is no burden upon the resources of man. 
 
, ORAL ARGUMENT OP HON. EDWARD J. PHELPS. 345 
 
 6 The rather fanciful suggestion has been made that drafts upon 
 male life, caused by these internecine conflicts, involve the survival of 
 the "fittest", and that by making large drafts from the males these 
 conflicts are prevented. We have better means of knowing whether 
 the contests are still carried on among the males than a priori reason- 
 ing affords. The fact is open to observation. It is overwhelmingly 
 proved, and without any dissent, except that of Elliott, that such con- 
 tests are still earnestly waged. But aside from this, is it reasonable to 
 suppose that males engaged in frequent contests, lasting for hours and 
 sometimes all day, and frequently resulting in death, are better fitted 
 for the office of reproduction than other males in a herd in which their 
 proportion to that of females, and consequently the occasion for such 
 contests, was much less ? 
 
 7. Finally, the question whether the annual draft of 100,000 which 
 has been practiced upon the island is excessive or not, is also suscepti- 
 ble of a conclusive answer, not affected by the incertainties of a priori 
 reasoning. The experience of this herd for half a century leaves no 
 room for doubt upon this point. We know that the Eussians, whose 
 drafts were governed, iiot by the capacities of the herd, but by the 
 demand in the market, took during the later period of their occupation 
 from fifty to seventy thousand young males annually, and that, under 
 this draft, the herd not only maintained its numbers, but very largely 
 increased, and was, at the time of the transfer to the United States, in 
 a con ditio n of aboundin g prosperity. We know th at the United States, 
 thereafter, in the face of an excessive and somewhat indiscriminate 
 slaughter of 240,000 in the year 1868 regularly made the draft of 100,000 
 up to the year 1884, without effecting any diminution in the normal num- 
 bers of the herd. It is indeed probable that the effects of pelagic sealing 
 had then begun to make themselves manifest in a slight degree, and it 
 is certain that from that time they began to have a decisive influence. 
 The United States -has never pretended that it could safely continue 
 to make the draft of 100,000 after the birth-rate became diminished by 
 the effects of pelagic sealing. Had the Grovernmeiit known, prior to 
 1890, the extent of the diminution thus effected, it would undoubtedly 
 have diminished its drafts and pressed more earnestly for the suppres- 
 sion of this destructive pursuit. 
 
 But what is to be said of the consistency of those who, in the case 
 of a polygamous animal like the seal, insist that the annual taking of 
 100,000 young males is too large, and tends to a diminution of the herd, 
 and yet insist upon the continuance of a practice which, even when 
 restricted and regulated as proposed by them, would necessarily involve 
 the annual slaughter of 40,000 females, and probably many more?