on. n, V
(Q ij t r on
FOR THE PEOPLE
FOR EDVCATION
FOR SCIENCE
LIBRARY
OF
THE AMERICAN MUSEUM
OF
NATURAL HISTORY
FUR SEAL ARBITRATION.
PROCEEDINGS
OF THE
Tribunal of Arbitration
CONVENED AT PARIS
UNDER THE
TREATY BETWEEN THE UNITED STATES OP AMERICA AND GREAT
BRITAIN CONCLUDED AT WASHINGTON FEBRUARY 20, 1893,
FOR THE ■'"> ~1 <rl <^* i (D. i
^i^-vii^
DETERMINATION OF QUESTIONS BETWEEN THE TWO GOV-
ERNMENTS CONCERNING THE JURISDICTIONAL
RIGHTS OF THE UNITED STATES
IN THE
WATERS OF BERING SEA.
VOLUMK XIV.
WASHINGTON:
GOVERNMENT PRINTING OFFICE.
18 9 5.
/9- T^i'1^ J U11€ fi,4
FUR-SEAL ARBITRATION.
ORAL ARGUMENT
ON
E^BCB-TJL^^TIOISrS
BY
SlE CHARLES RUSSELL, Q. C, M. P.,
HEK BEITANNIC MAJESTY'S ATTORNEY-GENEKAL,
B S, PT XIV 1
THIRTY-FIFTH DAY, JUNE 8^", 1893.
Sir Charles Russell. — Mr. President, it is witli a sense of relief
tliat I liiid myself approaching the conchiding subject upon which it
will be uiy duty to address this TribunaL You, Sir, will have gathered
fi'om the arguments of my learned friends and myself that in our
apprehension of the questions with wliich the Tribunal has to deal,
this is the only one which deserves at tlie hands of this Tribunal seri-
ous consideration or which ought to give this Tribunal serious trouble.
I wish, at the outset, to explain the position which my argument takes
or proposes to take in the consideration of the general question. You,
Sir, will have observed that in presenting the Case upon what has been
called the questions of right, that I have had all along the most valu-
able and unstinted aid of my learned friend, Sir Richard Webster, and
my other learned friends who are with me, and with the assistance
which they were good enough to render to me, I took upon myself the
main burthen of presenting fully and at length the case on the part of
Great Britain relative to those questions of right. As regards the
question of Regulations, I propose only to address the Tribunal upon
some broad questions of xninciple which we submit ought to be borne
in mind by the Tribunal in considering the question of Regulations
and in deciding upon the plan which those Regulations should pursue.
In that view you will perceive, Mr. President, that it becomes neces-
sary at the very outset I should determine upon what hypothesis I am
to consider the question of Regulations.
Am I to consider that question of Regulations as if the question of
right were undetermined ? Am I to consider the question of Regula-
tions as if the United States were to be supposed to have legal rights
such as are intended to be presented under the five questions of Article
VI, or am I to approach the question of Regulations upon the supposi-
tion that those questions have been determined adversely to the con-
tention of the United States? I need not tell you. Sir, what is the only
hypothesis upon which we can argue, or pretend to argue, the ques-
tion of Regulations at all. It is upon the hypothesis clearly and dis-
tinctly that this Tribunal has arrived or shall have arrived at the
determination that, so far as legal right is concerned, the United States
has none. I therefore shall argue tlie question as I conceive Article 7
of the Treaty contemplated that the Treaty, should be argued, naaiely,
upon the assumption tliat the United States has no legal property in
the fur seal individually or collectively, and, in the next place upon the
hypothesis that no right of the United States in regard to those indus-
tries so called upon the Islands is invaded by the pursuit of pelagic
sealing. The 7th Article, as I conceive, suggests that that is the con-
tingency contemplated by the Treaty itself it says:
"If tlie determination of the fore.s^oing questions as to the exclusive jurisdic-
tion of the United States shall leave tlie subject in such position that the concur-
rence of Great Britain is necessary to the establishment of Eej^ulations for the
proper protection and preservation of the fur-seal in, or habitually resortinir to the
Behriu^ Sea, the Arbitrators shall then determine what concurrent Regulations",
and 80 forth, " are necessary."
4 ORAL ARGUMENT OF SIR CHARLES RUSSELL, Q. C. M. P.
That tlien, Sir, is tbe hypotliesis upon which I proceed to consider
the question of Kegulations.
I cannot better express myself in this regard than is expressed at
page 159 of the British Counter Case, and with the permission of the
Tribunal I will read some passages from that Counter Case. Itis neces-
sary it is there said in chapter 9.
in approaching: the consideration of the question of Regulations (if any are to be
made) to recall its relation to the five points raised by the Vlth Article of the Treaty,
bearing in mind that it is only in the event of those five questions having been so
determ'ined as to render the concurrence of Great Britain necessary that the author-
ity of the Arbitrators as to Regulations arises (Article VII).
What, then, does that determination involve? It involves the recognition of the
proposition that Behring Sea is to be regarded as a sea open to the connnerce and to
the fishermen of the world, and that the United States have no exclusive right of
protection or property in the fur-seals frequenting the islands of the United States
in Behring Sea when such seals are found outside the ordinary 3-mile limit.
It follows that the rights and interest of the United States in fur-seals frequent-
ing such islands do not diti'er from the rights and interests of any other portion of
mankind, except in so far as the territorial possession of those islands by the United
States gives to their nationals the exclusive right of capture in territorial waters,
and the advantages derived from the fact that the seals congregate in large numbers
on those islands, thereby giving the opportunity for their slaughter.
I stop there for a moment.
Therefore, to begin with, the question is to be approached and only
to be approached, as we conceive, upon this basis of fact that the only
peculiar or special right which the United States have is the right
which they possess ratione soli — the riglit that they possess by reason
of the possession of the islands which gives them facilities for the cap-
ture of these animals /ent? naturce, but gives them no other right of any
different character than that possessed by all mankiud. They have
the right to take them ratione soli exclusively on the Islands. They
have the right to exclude anybody else from trespassing on that domain.
They have the right to take them exclusively within the three mile
limit and to exclude others from that zone but outside that zone, and
on the high sea, the rights of all are equal and the Nationals or lessees
of the United States Islands have no other greater or different right
than that possessed by the nationals of any other Country on the face
of the globe whose opportunities and whose interests may suggest
them pursuing i)elagic sealing upon the open sea.
Now if that be so, and it is upon that basis and upon that basis alone,
that I and my learned friends will argue this question at all, two ques-
tions will arise, first what are the rules which you may make or which
you can make in other words what is the extent of your jurisdiction and
authority, and the next question is, what are the rules which in fair-
ness and equity you ought to make. As to each of those questions I
propose to say a few words.
The questions are, what is the extent of your jurisdiction as to rules,
and next to what extent, in what direction ought you to exercise that
jurisdiction. In other words, what can you do is the first question,
and what ought you to do is the second question.
Now it is obvious that the first question, namely, the extent of your
jurisdiction, depends on the Treaty. You can only exercise the juris-
diction that the parties have given you. The discharge of your duty,
which you have taken upon yourself, is confined to and defined by the
terms of that document under which or from which your authority
springs. I am only concerned, Mr. President, to deal with one point
upon the question of the extent of your jurisdiction, and that point is
this, I will convey it to your apprehension in a sentence, in a moment,
ORAL ARGUMENT OF SIR CHARLES RUSSELL, Q. C. M. P. 5
SO that you may more easily follow it, whether your jurisdiction, in
fact extends beyond what has been called the area of dispute between
the United States and Great Britain ; in other words, whether your
jurisdiction extends beyond Behring Sea. When I talk of the Behring
Sea you will understand that I deal with that part of the Behring Sea
east of the boundary line — the portion of that part of Behring Sea,
east of the boundary line, being claimed by the United States at one
time, and in one branch of their argument, as practically j)art of their
territory ceded to them by Eussia.
Senator Morgan. — You are not speaking of the North Pacific Ocean.
Sir Charles Kussell. — Well, Sir, I do not at this moment use the
phrase "part of the North Pacific," though Behring Sea is part of it.
I speak of it as meaning the Behring Sea itself.
Now I wish before I deal with this question, and having inade my
point I do not intend to dwell upon it for reasons which will be appar-
ent in a moment. I wish before I argue the point to meet the charge
which my learned friend Mr. Carter felt himself warranted in making
when dealing with the contention which is raised iu the Counter Case
and Argument on the part of Great Britain that the jurisdiction of this
Tribunal was in fact limited to Behring Sea. My learned friend said
(he did it with his usual courtesy, and he will understand that I am not
making it a matter of complaint) that to so argue on the part of Great
Britain was to convict Great Britain of insincerity in her desire to pre-
serve the fur-seal species. My learned friend went on to say that the
facts made it apparent that Regulations were needed outside Behr-
ing Sea and south of what has been called the Aleutian chain as much
if not more than inside the area of Behring Sea itself. I meet my learned
friend's charge of insincerity in the way in which it has been all along
met. We have been (as correspondence, which I will not refer to in
detail, has made apparent) from the first anxious so soon as the ques-
tion of right was settled and out of the way to deal comprehensively
with the question of Regulations in relation to the preservation of the
fur-seal without limit as to any particular seas or parts of particular
seas or islands. We were anxious to gain the co-operation of other
great Powers who had an interest in this question. We were anxious
that the scheme of Regulations should not be confined to the seas, but
should extend to the breeding places of these islands where Regulations
were at least as much needed as elsewhere, and given the conjunction
of the Powers who were interested, and given authority to a Tribunal
to deal comprehensively at sea and on land we have all along been
willing, and we are now willing, to give the fullest authority to any
Tribunal to deal with any question outside this Treaty. Tliis is no
new offer. It is to be trticed in the correspondence of Lord Salisbury
when he held the Office of Foreign Minister and from the consistent
tone which he evinced there has been no departure by any successor
in Office.
Senator Morgan. — You said to deal with any question outside this
Treaty. I suppose you meant outside the territorial limits — outside
Behring Sea.
Sir Charles Russell. — I did. Sir, I meant without any restriction
at all there as to sea or land. I therefore meet my learned friends
charge or suggestion of insincerity in this way, and indeed I might on
my own part — not that I care much for the argument known as the
argiimentum ad homineni — retort upon the United States and their
advisers, \ do not doubt the personal sincerity of my learned friends
at all, but if they were really representing the unselfish views which
6 ORAL ARGUMENT OF SIR CHARLES RUSSELL, Q. C. M. P.
tliose who instruct tliem profess in tliis matter, tliere would be, I take
leave to say uotliing; cleroj^atory to the i)osition of tlie United States —
nothing', at least, unworthy of its gTeat position and authority in sub-
nutting as part of a great scheme the qnestion of Regulations upon
the Islands as well as the question of Ivegulations at sea.
Great Britain has not thought it unbecoming, the United States has
not thought it unbecoming its importance and dignity to submit to
this Tribunal the regulation of important rights in the open sea; and
I could see, therefore, nothing derogatory to the United States in their
submitting also to an impartial Tribunal an adjustment of this ques-
tion which should embrace the Islands also. I admit, because I wnsh,
at least, that my argument should be clear, that there is no authority
under this Treaty in this Tribunal to enjoin, as authoritative relations,
any scliCme or system of management upon the Islands themselves as
what I may call a directly enforcible act of this Tribunal. I sliall
presently, however, have to submit in another connection, while tliey
have not that power directly, they have the power indirectly; and I
shall submit reasons why that indirect power should be exercised.
Senator Morgan. — I do not sup])ose that anybody contends that
there is any self-executing power submitted to this Tribunal for estab-
lishment or decision? It must be done by the assistance of some Gov-
ernment?
Sir Charles Eussell. — Quite so; no doubt, that is a consideration
I shall, of course, deal with when I come to the suggestion at a later
stage.
With that preliminary statement, I come back to the question; Is
the jurisdiction of this Tribunal as to Regulations restricted to the area
in dispute, namely the eastern part of Behring Sea?
Now, Mr. President, you will recollect that, in my former argument
upon the question of right, I respectfully insisted upon, in argument,
the meaning which I conceived was to be given or ought to be given to
Question 5 of Article VI. You will recollect that I then insisted that
that was not only, as Article VII showed it to be, a question of exclu-
sive jurisdiction claimed by the United States, but I endeavoured to
show that it was a question of exclusive jurisdiction of the same char-
acter as was put forward in the preceding four Questions, namely a
question of exclusive jurisdiction in the eastern waters of Behring Sea,
founded upon the contention that those eastern waters were part of the
territory ceded by Russia. I am not going to repeat that argument
because it would be but a mere repetition of the argument that I then
addressed, that would be equally apidicable to the subject-matter that
I am now speaking about; and I will content myself by asking the
Members of the Tribunal to take a note of the ftict that that argument
is to be f(mnd beginning on page 945 and between that page and page
i)o() of the Print of the argument. That is my oral argument.
Now, there is no doubt in the world that Lord Salisbury, as I have
already intimated, in some of his correspondance was contemplating
and was, I may add, recognising the advisability of the consideration
of Regulations outside Behring Sea; or, perhaps, to put it more cor-
rectly, not limited to the eastern waters of Beliring Sea. I am not
going, for the reasons I have given because I speak of the thing without
going into minute details, to refer the Tribunal to the correspondence;
that will be dwelt upon by minds coming freshly to the consideration
of this question, my learned friends, Sir Richard Webster and Mr.
Robinson. But I wish to say, though that is so, it will also be found
that that was in connection with the subject-matter to which I have
ORAL ARGUMENT OF SIR CHARLES RUSSELL, Q. C. M. P. 7
already referred; namely, the contemplation of a scheme to wliich not
only the United States and Great Britain should be parties, bat to
which, among others, Russia should be party, and to which it was hoped
that Japan might be a party; and it was in that view, and that view
only, that a comprehensive scheme embracing the whole subject-matter
of nationals of all Powers as to whom it could probably be predicated
they would or might embark in pelagic sealing, it was in that connec-
tion that that wider reference of his was made.
But, in justilicatiou of what I am submitting, there is one passage,
and one i)assage only, to which I must refer. It is a short passage, but
an imi)ortant one. I will not refer to the original source from which
the i)assage is taken, but I will read it from the place in which it
appears in my Argument addressed to this question. It is at page
9-A0-947; and it is the communication of Mr. Wharton. It is a letter
of the 4th of June, 1891, and is to be found at page 306 of the United
States Appendix, Volume I:
The fonrtli clause of the proposal of Her Ma.iesty's Government, limiting the
taking effect of the modus vireiidi npon the assent of Rnssia, presents what seems
to the President an insujierable difficulty, as adherence to that suggestion by Her
Majesty's Government will, in his opinion, prevent the conclusion of any agreement,
and will inevitably cause such a delay,
and then I observe that the object of Sir Julian Pauncefote was, by
including Russia, to have an extension of the modus vivendi so as to
proliibit the killing in other parts of the Behring Sea westward of the
line of demarcation; and this is the way that suggestion is met by Mr.
Wharton, and this is the passage in the letter :
I am also directed to remind you that the contention between the United States
and Great Britain has been limited to that part of Behring's Sea eastwar<l of the
line of demarcation described in our Convention with Russia, to which reference
has already been made, and that Rnssia has never asserted any rights in these
waters affecting the subject-matter of (his contention, and cannot, therefore, be a
necessary party to these negotiations, if they are not now improperly expanded.
Under the Statutes of the United States, the President is authorized to prohibit
sealing in the Behring's Sea within the limits described in our Convention with
Russia, and to restrict the killing of seals on the islands of the United States; but
no authority is conferred npon him to prohibit or make penal the taking of seals in
the waters of Behring's Sea westward of the line referred to or upon any of the
shores or islands thereof.
Now, I beg your respectful attention to this concluding passage:
It was never supposed by any one representing the Government of the United
States in this correspondence or by the President, that an agreement for a modus
viceiidi could be broader than the subject of contention stated in the correspondence
of the respective Governments.
I need not say that the subject of that correspondence was exclu-
sively the eastern waters of Behring Sea. There is another passage
in that letter, a little lower down, on the same page in the book in
which the letter is set out in extenso, which runs thus :
This he would very much regret,
(that is to say, regret that the matter should go off)
and he confidently hopes that a reconsideration will enable Lord Salisbury to waive
(I repeat the word waive)
the suggestion of Russia's participation in the Agreement, and the inclusion of
other waters than those to which the contention between the United States and
Great Britain relates.
Senator Morgan.— What is the date of that letter?
Sir Charles Russell.— June the 4th, 1891; the Treaty itself being
concluded in February, 1892, — the Treaty itself was signed on the 18th
8 ORAL ARGUMENT OF SIR CHARLES RUSSELL, Q. C. M. P
of December, 1891, and the ratification signed at Washington Febru-
ary, 1892; and ratifications exchanged on the 7th of May, 1892.
General Foster. — The Agreement was signed in December.
Sir Charles Russell. — I have just said so.
General Foster.— No ; you used the word "Treaty", I think.
Sir Charles Kussell. — You mean they were put together, and not
in one document before? That is quite right.
Now I seriously submit, Mr. President, that in view of that corre-
spondence in June 1891, from which I submit there has been no depar-
ture up to the time of the Treaty, that the actual area in dispute — the
only subject matter to which the contest and correspondence related,
were the eastern waters of Behring Sea and the eastern waters of
Behring Sea only. In the same argument to which I have already
given you the reference I also pointed out how the modus vivendi in
the Ai)ril of the following year, 1892, supports this contention. I
pointed out by article V the question of damage or claim for compen-
sation by the United States on the one hand if its rights should be
affirmed by Great Britain, and, on the other, if the United States
rights should not be affirmed, was confined to the abstaining from the
exercise of the right of taking seals in Behring Sea, and did not extend
beyond Behring Sea, and in view of this conjunction of circumstances, I
submit that up to this time — in the correspondence at least — it is demon-
strable that both parties to these negotiations were ad idem as to wliat
was the matter in contest between them, and that was Behring Sea
and Behring Sea only. Aiter this correspondence and when we get to
March 1892 — I think it is the only other reference that I shall have to
make — there is a letter from Mr. Wharton to Sir Julian Pauncefote at
page 350 of the first volume of the Appendix to the Case of the United
States, in which he says:
I am directed by the President to say in response to your two notes of February
29th, and March 2ud, that he notices with the deepest regret the indisposition of Her
Majesty's Government to agree upon an effective modus for tlie preservation of
the seals in the Behring Sea, pending the settlement of the respective rights of that
Government and of the Government of the United States in those waters and in the
fur-seal fisheries therein.
Then follows this very exiilicit passage :
The United States claims an exclusive right to take seals in a portion of the Beh-
ring Sea, while Her Majesty's Government claims a common right to pursue and take
the seals in those waters outside a three-mile limit. This serious and protracted
controversy it has now been happily agreed shall be submitted to the determination
of a Tribunal of Arbitration, and the Treaty only awaits the action of the American
Senate.
Now leaving this to my learned friends, approaching this matter as
they will do with completely fresh minds, because they have not dis-
cussed this as I did in discussing the true construction of question 5,
I pass on with one or two observations, which indeed become more
pointed now that we have heard the suggested scheme which I will
not at this moment characterise, gravely presented by the Agent of the
United States in the person of my friend General Foster, who proposed
forsooth a scheme without limit as to time, not for the regulation of
rights upon the high seas, but for the extinction of rights upon the
high seas and without qualification, or without reservation going down
as well as I followe<^l it, for I have not yet read it to the 35° of latitude.
So that the scheme is from the Arctic Ocean. My learned friend. Sir
Eichard Webster, will trace the line of demarcation.
[Sir Richard Webster did so]. So that while the area in dispute was
Behring Sea and the question whether we were there outside the ordi-
ORAL ARGUMENT OF SIR CHARLES RUSSELL, Q. C. M. P. 9
nary territorial zone of three miles, and deprived of tbe general right
of tishmg which we claimed as belonging to all mankind without reser-
vation— my learned friends upon the supposition that the concurrence
of Great Britain is necessary in Regulations, and that therefore Great
Britain has rights involved propose a scheme of Regulations which
practically mean very much worse for British interests or the interests
of Canadian sealers than if we had never entered into any contest or
treaty at all upon the question of right.
Let me point out and assume that Great Britain had chosen to say,
'< Well, we will not trouble to contest whether Russia did or did not
assert and exercise rights prior to the time of the cession of Alaska —
we will not trouble to discuss whether those rights were recognized or
conceded by Great Britain— we will not trouble to discuss whether the
phrase "Behring Sea" was included in the Pacific Ocean — we will not
trouble to discuss whether all the rights that Russia had did not pass
unimpaired to you— we will not trouble to discuss if you had rights giving
you property or protection in fur seals frequenting Behring Sea: let
the whole thing go by the board; can any body doubt what the result
would be! It would be simply and solely an assertion of the terri-
torial jurisdiction in Behring Sea, not exceeding one inch outside the
three-mile limit. Therefore the proposition is now advanced, as I
understand from my hasty hearing of it— it is one which puts Great
Britain and her colonists in an infinitely worse position than the one
they would have been in if the question of right had not been raised
at all.
Now, reserving to my learned friends the right to enforce by further
arguments this important point, I pass now, and I assume, contrary to
my submission which I hojje will be seriously and gravely canvassed
by the Members of the Tribunal— without admitting for the purpose of
what I am about to say that the Tribunal has — only for the purpose of
argument do I admit it — authority outside as well as inside Behring
Sea — upon that hypothesis the question will then arise, which is the
second question to which I adverted, what Regulations ought in fair-
ness to be made and to what extent and in what manner, with what
limitations, and on what conditions ought that jurisdiction of the Tri-
bunal to be exercised both inside and outside Behring Sea.
Again I say that this question is to be approached as I suggested I
was endeavoring to approach it upon the basis that except rights as
territorial owners of the Islands the United States or its lessees or its
nationals have no right differing in kind or degree from the rights of
the nationals of Great Britain, in other words the Canadian Colonists
or indeed the nationalists of any other Power. In that condition of
things simply the sense and spirit of equity in each member of the
Tribunal will go with me in saying that if that be the true and just
basis upon which to regulate, the rules to be laid down must be just
rules, marked by considerations of equity and must have regard to the
fact that there are rights equal in degree and of the same character —
rights of fishing in the open sea — possessed by the subjects of Great
Britain, just as they are possessed by Citizens of the United States.
Now, Mr. President, when I come a little closer to the consideration
of what the Regulations ought to be, I find myself under this difficulty.
I find that such a cloud of prejudice has been sought to be raised upon this
subject of pelagic sealing that it is very difficult for this Tribunal until
it is sought at least to dispel some ])ortion of that prejudice to approach
the consideration of the question of Regulations with unprejiidiced
and impartial minds, and indeed apart altogether from any prejudice
10 ORAL ARGUMENT OF SIR CHARLES RUSSELL, Q, C. M. P.
that miglit be engendered by the string of vituperative epithets that
has been hurled at the pelagic Sealers. It is important to arrive at
some definite conclusion, if one can, as to what is in truth the part
which pelagic sealing has played in what is called the depletion of the
seals in and resorting to Bi-hring Sea because of course until you have
to some extent realized with some approximation at least to accuracy
what is the true measure of any mischief to the race of fur-seals
caused by pehigic sealing you will be without at least some of the data
absolutely necessary to assist you in determining what rules regulating
sealing ought to issue from this Tribunal.
Senator Morgan. — As I understand, you insist that the Tribunal
has no right to establish Regulations to operate outside the Behring
Sea. It is scarcely worth while to argue a question of that kind.
Sir Charles Kussell. — If you, Mr. Senator, will tell rae that you
accept that view, I will proceed at once, but I cannot assume that you,
much less the otlier Members of the Tribunal will do so.
Senator Morgan. — Your insistence is that this Tribunal has no
jurisdiction to make any regulations for pelagic hunting outside Beh-
ring Sea.
Sir Charles Russell. — Yes, that is my first.
Senator Morgan. — That is the attitude of the British Government.
Sir Charles Russell. — That is my first proposition.
Senator Morgan. — Is that the attitude of the British Government.
Sir Charles Russell. — I do not quite know what that means, Sir.
That is the argument. I submit.
Senator Morgan. — As representing the Government.
Sir Charles Russell. — I am here in the character in which I have
all along appeared.
Senator Morgan. — If it is denied that this Tribunal has any juris-
diction to establish Regulations for pelagic hunting outside Behring
Sea, then another very important question would arise which, of course,
we have to determine upon our own responsibility, whether we can
enter u])on that question.
Sir Charles Russell. — Upon which question ?
Senator Morgan. — As to the power of this Tribunal to regulate
pelagic hunting outside Behring Sea.
Sir Charles Russell. — Y^'ou have to consider that undoubtedly;
you have to consider the extent of your authority, I submit one view
to you which you may not accept. I do not at all — far from it — mean
to suggest that the question is not free from very great difficulty.
Senator Morgan. — It is a debatable question.
Sir Charles Russell. — I do not suggest or mean to suggest the
contrary; but the difficulty does not arise in my mind from the tone of
the correspondence, but from the terms of the Treaty and the provi-
sions in Article VII, with reference to what waters they shall extend
over. I do not find any logical difficulty in reconciling the portions of
the water in the Behring Sea over which they shall extend, but I have
felt bound to argue the question on another branch of the case already,
on the assumption that the Tribunal may not agree with the view I am
submitting, because, of course, I only submit the view as Counsel to
thejudgmentof the Tribunal which has the responsibility of determin-
ing and authoritatively determining them; and I must, of course
approach the matter alternatively, and I was on the second branch of
it, api)roaching it on the alternative that my contention was wrong, and
not one that would be accepted by the Tribunal.
The (|uestion was, what regulalions, in and outside of Behring Sea,
they adjudged fit to make. That is the question to which I addressed
ORAL ARGUMENT OF SIR CHARLES RUSSELL, Q. C. M. P. 11
myself, and I was going to address myself first of all to the point that
it was necessary for the two-fold object of removing prejndice and also
of trying to get a measure, if 1 could, of the extent of mischief which
was properly and truly to be attributed to pelagic sealing, and to
examine brieily some of the leading facts in relation to that branch of
the question.
As 1 pointed out, it is not possible for the Tribunal, without examin-
ing these facts and coming to some conclusion upon them, to comply
with the condition set out in the Treaty, or to give effect to the provi-
sions of the Treaty itself.
Now, let me, at this stage before I proceed because it may save a
little time, proceed to some brief comments on the Treaty itself. The
preliminary recital on page 1 states that, the two Governments.
licing desirous to provide for au amicable settlement of the questions which have
arisen between their respective Governments concerning the jurisdutional rights of
the United States in the waters of Behring's Sea, and concerning also tlie preserva-
tion of the fnr-seal in or habitually resorting to the said sea, and the rights of the
citizens and subjects of either country as regards the taking of fur-seal in or habit-
ually resorting to the said waters.
Then comes the operative part of the Treaty which provides that:
The questions which have arisen between the Government of Her Britannic Majesty
and the Government of the United States concerning the jurisdictional rights of the
United States in the waters of Behring's Sea, and concerning also the preservation
of the fnr-seal in or habitually resorting to the said sea, and the rights of the citizens
and suljjects of either country as regards the taking of fur-seal in or habitually
resorting to the said waters, shall be submitted to a Tribunal of Arbitration.
Then in Article VI are the questions of right.
Then in Article VII is that which deals in the question of Regulations :
If the determination of the foregoing questions as to the exclusive jurisdiction of
the United States shall leave the subject in such position that the concurrence of
Great Britain is necessary to the establishment of Regulations for the proper protec-
tion and preservation of the fur-seal in, or habitually resorting to, the BehringSea,
the Arbitrators shall then
that is to say in that event
determine what concurrent Regnlations outside the jurisdictional limits of the
respective Governments are necessary, and over what waters such Regulations should
extend,
I need not read the rest of it.
Therefore, what the Tribunal have to consider, npon the hypothesis
which I am now presenting, is, what regulations what concurrent
regulations are necessary for the proper protection and preserva-
tion of the fur-seal?
It will be observed, therefore, and I might as well, as my attention
has been drawn to it, make the observations in this connection, although
I had intended to reserve them till a little later period it will be
observed, therefore, that it is not regulations for the protection of the
fur-seal in the interests of the United States it is not for the protec-
tion of the fur-seal so that the United States shall be entitled or in a
position to kill the greatest possible number upon their islands — it is
not even regulations that shall keep the fur seal up to the highest
normal condition of equilibrium which it might arrive at in a set of
natural conditions where there was no artificial interference by man.
It is not that — it is the preservation of the fur-seal, and it is the
preservation of the fur-seal for and in the interests of no one power,
the subjects of no one power, or the citizens of no one power — it is the
preservation of the fur-seal.
12 ORAL ARGUMENT OF SIR CHARLES RUSSELL, Q. C. M. P.
ITow wliat part has pelagic sealing, in fact, played in this matter?
The Tribunal will not have failed to observe that all through the writ-
ten arguments, and all through the oral arguments, of my friends, that
it is hardly an exaggeration to say that this has been their tone: not
only, as my friend Mr. Kobinson so clearly and pointedly mentioned
to-day, that pelagic sealing is a moral wrong, and claimed that pelagic
sealing is hostes humani generis, and the rest of it, but they have
assumed that every seal, or almost every seal, that a pelagic sealer
killed was a female seal; and they have assumed almost that every
female seal that they killed was either a seal carrying its young (which
it was about to deliver), or a female seal whiph had delivered its young
which it was then engaged at the time of its slaughter in nurturing.
It is hardly an exaggeration to describe that as the argument advanced
by my friends.
Now let me point out some broad considerations. I do not stop to
jiotice — for I have akeady in another connection referred to that — that
whatever else may be said against pelagic sealing it has not yet, in the
history of the world, been found guilty of extermination of the race of
fur seal in any part of the globe — that in no part of the globe where
fur-seals were found formerly in great numbers and where they have
now ceased to be, is there extinction attributable to pelagic sealing —
indeed it is clear that if pelagic sealing and pelagic sealing alone were
pursued, that there would be no need for Eegulations at all, for the
object of this Treaty, namely, the preservation of the fur-seal, because
the past history of pelagic sealing has shown that in that which is its
congenial element, the sea, nature has furnished the seal tribe with
facilities to escape capture — it has enabled them to resist the attacks
of man upon the high sea.
It is no exaggeration, to use the language of the British Commis-
sioners rather ridiculed by my friend, Mr. Coudert when I say — and I
adopt the language, for I think it is true — that pelagic sealing does
give the seal what they call a "sporting chance" for its life, whereas,
killing on the Island — knocking it on the head with a club, gives it no
chance whatever. Therefore, we start with this, that it is not pelagic
sealing that renders Eegulations necessary at all for the preservation
of the fur-seal. The fur-seal in the past has survived and in all human
probability, as far as one can judge, will continue to survive and with-
stand the attacks of the pelagic sealer carried on as pelagic sealing
necessarily is carried on in the native element or the more congenial
element, at least, of the fur-seal. I do not stop to point out also the
fact that it is admittedly the historical and most ancient form of the
pursuit of the fur seal. I do not stop to dwell on the distinction that
my friends seek to draw between what they call fur sealing where the
comparatively untutored Indian with canoe and spear pursued the fur-
seal, and compare it with the introduction of what my friend, Mr.
Carter called the destructive agency of civilization in the shape of
arms of precision and in the shape of schooners and appliances better
adapted for success in that class of enterprise.
Well then, if we are right that pelagic sealing is not that which
makes or calls for the necessity of Eegulations standing alone, what is
it that does call for the necessity of those Eegulations I It is the kill-
ing on sea plus the killing on land; and, therefore, it does become
important to consider what has been the relative effect of those two
means of pursuit at sea and on land, and which had the most dire
effect u])on what has been called the depletion of the fur-seals in and
frequenting Behring Sea?
ORAL ARGUMENT OF SIR CHARLES RUSSELL, Q. C. M. P. 13
Senator Mo'rgan. — That appears to be the question of indiscrimi-
nate killing", whether on land or sea.
Sir Charles Russell. — In another connection as I have shown,
and I shall have again to show, that although the United States claim
was for discrimiuately to kill upon land, that is not a well-founded
claim.
Senator Morgan. — I am not speaking of the claim of the United
States; I am speaking of the fact that it results in the destruction of
the seal species; and the point is indiscriminate slaughter.
Sir Charles Russell. — 1 do not care, Sir, whether it is indiscrimi-
nate or discriminate, — one need not dwell upon that. They are slaugh-
tered. AVhether you can call killing on the Islands discriminate or not,
it has led to the depletion.
Senator Morgan. — I am speaking of the killing of seals in the South-
ern Hemisi)here as well as in the Northern. Has not the destruction
of the seal species in the Southern Hemisphere resulted from indis-
criminate slaughter?
Sir Charles Russell. — On land, it has.
Senator Morgan. — Or on the sea either.
Sir Charles Russell. — No, on the contrary.
Senator Morgan. — No matter where.
Sir Charles Russell. — No. On the contrary there has been no
instance whatever of any killing which it is even alleged had affected
seal life in any of the southern portions of the globe or anywhere else,
so far as I know attributed to pelagic sealing. No, Sir.
Senator Morgan. — That may be the better method ; but the ques-
tion still recurs whether the loss of seal life in the Southern Hemi-
sphere and in the north is not due to indiscriminate killing, whether on
land or at sea.
Sir Charles Russell. — At present I am dealing with pelagic seal-
ing. I am endeavouring to see what are the crimes properly to be
attributed to pelagic sealing; and in this connection dealing with this
concrete case, what i)art pelagic sealing has played in the depletion of
the heard of the seals frequenting or habitually resorting to the Beh-
ring Sea.
Now my learned friend Mr. Carter in dealing with this matter put
forward this argument. It is to be found at page 81 of the United
States argument in print I think, and also I think in my learned
friend's argument — I have not the page at this moment — orally deliv-
ered. It was to this effect: a great part, said my learned friend — and
said truly — of the seals killed by pelagic sealers, are females and there-
upon he went on to say that being females that necessarily caused a
diminution of the stock and a lowering of the birth-rate of the stock
below the normal point which it would otherwise naturally reach. I
want to point out, with great respect to my learned friend, that that
is not correct; because it would assume that the female killed had pro-
duced no young at all, and would produce young if it had not been
killed. Let me remind the Tribunal and remind him that according
to the evidence it is stated that each female produces in the course of
its normal life, assuming that it escapes the great dangers to which
it is exposed from natural causes, from 11 to 14 pups. It is put as
high as 14.
Senator Morgan. — 12 is an average?
Sir Charles Russell. — Assume 12 to be an average by all means.
My learned friend will see at once that if the particular female that has
been killed is one that has produced even two pups, the killing of that
14 ORAL ARGUMENT OF SIR CHARLES RUSSELL, Q. C. M. P.
particular female does not reduce the stock at all, because she has more
than replaced herself by the production of her two pups; and if the
entire production in the course of her life is to be fixed, as you, Mr.
Senator Morgan, suggest, at an average of 12 pups, the probability is,
taking the same average, that when she meets her death at the hands
of the sealer she has produced six pups, and therefore much more than
replaces herself in the stock from which she is taken.
And indeed my learned friend will see that his own argument leads
to this — 1 will say it, but say ic respectfully to him, because it is the
word that occurs to me — leads to this hopelessly absurd result. The
killer whales who are one of the great agencies of destruction of the
fur-seal have been going on, a natural enemy of the fur seal ever since
the fur-seals were, sparing neither age nor sex, not descriminating
between female and male, killing therefore a large number of female
seals. According to my learned friend's argument, if that argument
were well founded, the killer whales must have long since exterminated
the whole tribe of seals altogether. My learned friend's argument would
only be good if he could establish that the females that were so killed
were females that had not done something to replace themselves in the
stock, to fill their own places in the stock, because it is only in that case
in which they would have had any permanent effect upon the stock at
all. Besides my learned friend loses sight of this fact which I think it
is important to bear in mind, that the evidence now establishes — that
after the breeding seals have got to the Pribilof Islands and after the
time when according to my learned friend's views, the great family of
the seals frequenting Behring Sea had got into the neighborhood of
that Sea there are observed large masses of seals that never ap])arently
go regularly to those islands if they go at all at long distances from the
islands, at distances west and north of the islands and at distances
south of the Aleutian chain and away from Behring Sea altogether,
that at the very time that, according to their theory, the great family of
seals were gathered around and upon the Pribilof Islands. What were
these composed of? Many of them, we do not doubt, were composed
of barren females who, not going to the islands, would go to waste — it
is no exaggeration to say — but for the pelagic sealer. That class
embraces others, for instance young males that are not led to go to the
islands by any sexual instincts such as attracts them at a later period;
females not attracted by any sexual instinct, which only affects them at
a later period; and old seals which are considered unworthy of notice
by those who kill the seals upon the islands because they have reached
a stage at which their skins are not the most marketable, the best for
the market being from three to foitr or five years of age. These are all
classes of seals which may be dealt with without interfering so as to
intiict any permanent injury upon the stock of the fur seal and which in
large part, at least, would probably go to waste and be of no use for any
human i)urpose whatever unless the pelagic sealer was allowed to deal
with them.
Senator Morgan.— Sir Charles, in that connection— I hope you will
pardon me for calling your attention to it — the statements of a good
many witnesses in this case would seem to indicate that every seal, a
year old or any other age, is impelled by its natural necessities to resort
to the land at some period of the summer during which its coat is
changed; and that that necessity is just as imperious as any instinct of
the animal in reference to its propagation. So that it is open to argu-
ment, to say the least of it, whether or not every seal does not every
year resort, under the necessity of an instinct that it cannot avoid, to
the land for the purpose of shedding its coat.
ORAL ARGUMENT OF SIR CHARLES RUSSELL, Q. C. M. P 15
Sir Charles Eussell. — "Well, Sir, I beg most distinctly, but respect
fully to say there is no evidence which warrants any such conclusion;
and I submit on the contrary so far from there beinj; any evidence to
warrant that conclusion that the evidence is the other way; because
the evidence is that seals that do go to land become and are found stagey
at a certain jiortion of tlieir pelage in a certain period of the year, but
at the very same period of the year seals are being taken by pelagic
sealers, and on being taken pelagically are found not to be in that stagey
condition at all. But further, as that has been mentioned, may I ask
you, sir, to note — 1 did not intend even to give the reference — the evi-
dence as to the scattering of large numbers of seals during the breed-
ing season when, according to the contention of my friends, the whole
family are in and about the islands, as set out in the second volume of
the A])])endix to the British Counter Case, page 27. There is set out
there in summary a body of evidence of a great number of persons,
speaking to different times and to different parts of that whole vast
extent of ocean, showing that it is impossible to arrive at the conclusion
which you have been good enough to suggest as one to be discussed,
that the seals do go each year necessarily to land. Indeed, we have
the admissions in the evidence of Mr. Bryant, who was 1 think a Treas-
ury Agent on the Pribilof Islands, to the effect that when the female
pup leaves the island it does not return to the island in its first year;
that it comes to the island in the third year to deliver its first pup. As
the question has been challenged I should just like to refer you to the
passage where that appears.
In his Monograph of North American Pinnipeds, pages 401, 402,
after speaking of the pups Mr. Bryant says:
"At this stage the female pups leave the island for the winter, and very few
appear to return to the islauda until they are three years old."
There is other authority to the same effect; but I cite that as being
a witness called on the part of the United States.
But we have means of getting much closer to this matter and of deter-
mining what is the true measure of responsibility to be cast upon the
pelagic sealers what is the correct measure or the approximately correct
measure at least, of- the effect of pelagic sealers, u^jon the race of
fur-seals in these parts.
Now, Mr. President, there are three distinct dates given in various
places by witnesses called on the part of the United States as the date
at which decrease was first noticed on the Pribilof Islands. Those
three dates are 1887 — some of them giv^e — 1879 — but the United States
argument fixes 1884 as the first date when any significant decrease was
noticed ; and that is what is now suggested as the date upon which
they fix.
My learned friend, Mr. Coudert, on page 655 of the print of his oral
argument, takes the latter date and gives the go by to the statement
of some of the witnesses, to which I shall incidentally hereafter refer,
fixing the noticeable decrease as early as 1877 and 1879. On page 655
Mr. Coudert says this:
From 1870 to 1880 it was one of increase. Of course it is not ahsolntely and
mathciiiatically possible to establish when increase ceased and stagnation com-
menced and decrease took its place; bnt speaking of the question, with such infor-
mation as we can get from persons who are able to express an opinion, that is the
estiiiuite that we submit to tlie court increase to 1880; stagnation from IJSSO to about
lsi^'4 ; and subseiiueutly to that the decrease which it is conceded on all sides exists
and now threatens extermination.
I do not know that that last statement is to be taken as an admis-
sion ; b.ut so rey learned friend puts it.
16 ORAL ARGUMENT OF SIR CHARLES RUSSELL, Q. 0. M. P.
We liave a means of assisting the Tribunal to what is the true meas-
ure of the injury done by pelagic sealing; and in order to explain it, I
will take the liberty of presenting, or asking the Tribunal to take, one
of these tables which has been prepared for the purpose of presenting
this. I would remind the Tribunal of this; there are certain tables
found in the United States volume, A, B, and 0, I think they are.
These three maps will be found at page 352 of the United States Case.
I am not going to trouble you, Sir, with a detailed examination of this;
but it is absolutely necessary that I should explain what it means. If
you will take " male Seals, diagram", facing page 352, you will see, Sir,
that that purports to set out what would be the natural condition and
distribution of a collection — I will use the word " herd" for brevity —
of male seals numbering 40,025; and you will observe that there are
different colors there to indicate the different divisions of these animals.
The first column, which is colored green, and which is framed upon
the basis of an annual number of ten thousand male pups being born.
You will see the figure "I" at the bottom of that column. There
is a series of figures, 1, 2, 3, 4, 5, 6, 7, 8. You see the numbers, Mr.
President?
The President. — Yes.
Sir Charles Russell. — Those figures at the bottom indicate the
ages which the seals have attained; and you will see, therefore, that
upon the assumption of 10,000 male pups born in one year, that of
those 10,000.
The President. — Pups, not male pups.
Sir Charles Russell. — This is entirely conversant with males, Sir.
There is another dealing with females. That of 10,000 male pui)S born
in the year, ouly 5,000 survive to the next year; because you get the
number which survive to the next year by following the column at the
base of which is the figure I until you find it crosses the line. You
will see, therefore, it goes up to the point of 5,000. If you have
appreciated what I have been endeavoring to describe, I will pass on.
What that shows, therefore, is this: assuming that their calculation
is correct — probably approximately it is correct — that from natural
causes one half of the pups born disappear, prey to accident, prey to
the killer whale, prey to epidemic, prey to any cause you like; but to
natural causes is to be attributed the fact that 60 per cent of the pups
born in any one year disappear during that year, and only 50 per cent
survive to be yearlings. That is the ouly fact I wish, in this connec-
tion, for the moment to beg you to carry in your mind.
That being so, we have prepared a table in which we have taken the
total number of seals pelagically killed from 1871 to 1878, and then
going on to 1879, 1880, 1881, 1882, 1883, 1884, 1885, and we have pro-
ceeded upon the principle which I am now about to explain to you.
We have assumed that every seal pelagically killed was a female
seal, was not a barren female seal, but was in fact a pregnant female
seal. Now, let us see how the figures work out, even on that violent
hypothesis; because it is admitted by my learned friends that a cer-
tain percentage of the pelagic catch are old seals, females that are
barren, females that are past bearing, and male seals whose skins are
of comparatively little value for market purposes if killed upon the
islands.
From 1871 to 1878 — although 1 do not seek to dwell upon that,
because it is going too far back — the number periodically killed was
2,000. The figures upon which I base these observations are to be
found set out in the report of the British Commissioners, figures
ORAL ARGUMENT OF SIR CHARLES RUSSELL, Q. C. M. P. 17
which my learned friends have themselves adopted as indeed being
more favorable to their contention than the figures set out in their
own volumes.
Mr. Carter. — We do not concede the accuracy of those figures,
Sir Charles Eussell. — No, no; I am not saying you do. But
you have referred to them, and you have recognized the fact, as it is
the fact, that they are figures which are larger than the figures that you
yourself put forward.
Mr. Carter. — Only in some particulars.
Sir Charles Kussell.— They will be found at page 207 of the
British Commissioners' Report. I quite admit — I wish not to be mis-
understood on this relation, or in any relation — I quite admit that all this
is subject to discount because until we come to comparatively recent
years the figures are not a very reliable guide. I quite admit also that
an addition, and a not inconsiderable addition, is to be made to these
figures by reason of what has been called the loss of seal life at sea,
namely, loss in respect to seals which are Khot at, which may be mor-
tally wounded, but which sink and which cannot be recovered. The
figures therefore are open to these criticisms. But in reference to
such criticism, I have to observe that there is a very wide divergence
between the views put forward by the witnesses on the part of the
United States and those i)ut forward by the persons actually practically
engaged in jielagic sealing, as to the amount of loss in that way occa-
sioned— so wide a margin of difference, indeed, between the two, that
one looked about for some explanation of it; and I think the explana-
tion is to be found in this: that the witnesses called on the part of the
United States appear to have assumed that when a charge of the gun
was fired at a particular seal, and that seal was not caught, that that
was to be treated as a seal that had been wounded and was lost. I
may call attention to the evidence cited in Professor Elliott's report, in
which he cites a great number of instances of that kind, for he is very
strong against pelagic sealing; and when you come to examine the
instances that he cites, he does not mention them as instances where
there is any reason to suppose the seal lost was a seal that had been
mortally wounded at all.
Now, taking these figures, Sir, and presenting them to you; taking a
later year than 1878, the amount pelagically killed in 1880 was 4,800; in
1881, 0,000; in 1882, 12,000; and I stop at 1882.
Mr. Foster. — It is about half of what the American Commissioners
report in their table.
Sir Charles Kussell. — I do not think that is ad rem to what I am
now ui)on.
Mr. Foster. — You say we adopted your figures.
Sir Charles Russell.— Will you give me the reference?
Mr. Foster. — Page 30G, just following the maps that you are using.
Sir Charles Russell. — Do they give any figures alter that?
Mr. Foster. — Oh yes; each year.
Sir Charles Russell. — I thought our figures were more favorable.
Mr. Foster.— On page 366 you will see that in 1870 it is 12,500.
Sir Charles Russell. — I will just look at this. Yes; I see some
of them are more favorable.
Mr. Foster. — Take, for instance, up to 1878.
Sir Charles Russell. — I will examine these later; but for the
present I will take the ones that I am upon. It will not materially
interfere with the point I am submitting. I think it will not be found
to materially interfere.
B S, PT XIV 2
18 ORAL ARGUMENT OF SIR CHARLES RUSSELL, Q. C. M. P.
What I was jjoiiig to sliow is this: I will take the year 1882, where
the figure given by the British Commissioners is 12,000; and I stop at
1882 for this reason: the pup born in 1882 would be a yearling in 1883,
would be a two-year-old in 1881 and would be a three-year-old in 1885.
Therefore, indeed, I ought properly to stop in 1881. That is to say, no
eflect of the killing of females in 1885 could be felt upon the number
of killable seals until the year 1884. That is to say, a pup in 1881 is a
yearling in 1882, a two year old in 1883, a three year-old in 1884, and is
kil]al)le, in his prime, from 3 to 5 years of age. Therefore the effect of
the killing of female seals could not tell uj^on the number of killable
males, or either sex, for that matter, until 1884, or the third year
afterwards.
I have assumed for this purpose the figure given in the case by the
British Commissioners. They put the figure in 1881 at 0,000. The
American Commissioners put it at double that. Therefore you may
take it either one way or the other. It will not, I think, materially aU'ect
the matter. If it is 0,000, there are 0,000 pups born, which is a very
violent assumption — 0,000 gravid females, which, if not killed, would
have born 0,000 pups, of which 3,000 alone, because tlie sexes are equal,
would have been males, and tberefore would, in the year 1884, if the
mother had not been killed, have come into the (tlass of killable males
in 1884, and would have been in the class of killable males from 1884,
when it was 3 years of age, up until it was 5, or later.
Now, of those 3,000 inale i)ups sup})osed to have been lost because
their mothers were killed in 1881, how nniny survived to reach two years
of age? According to the figures given by the United States in the
diagram to which I have referred, 900 only. How many would reach
three years of age? 720 only. Double, treble, quadruple the amount
of pelagic killing; and you get to a figure comparatively insigniticant
and wholly inadequate to account for or even go any substantial way
to account for the decrease which it is said was so noticeable in the year
1884, according to Mr. Coudert's argument, and following the printed
argument put forward on the part of the United States.
Therefore I say, take any set of figures you please, starting from 1881,
and taking their contention to be that the decrease was markedly
noticeable in 1884, that could not have been noticeable until the ])U])s
had got to the age when if they had been interfered with they would
have been in the killable class, beginning with 3, and rising up to 5, 6
and 7 years of age.
We have other ways also of testing this matter. One specific accu-
sation made against pelagic sealing is this; and they say that having
found this specific accusation to be capable of su])port, in one particu-
lar set of years, that it may be equally true, and a cause of the death
of the pups in previous years. That is to say, that in the year 1891
there was found to be upon the islands a large number of dead pups,
dead, as they say, from examination after death, because they were
starved, the starvation, as they allege, being attributable to the fact
that their mothers were killed in Behring Sea and so they were deprived
of their natural nutriment, causing the wholesale death of these pups,
which was manifest upon the island.
The first observation one has to make in relation to that is this: that
it will be found that the whole of those deaths of pups in any noticeable
degree in 1891, were found on St. Paul's Island alone, not on St. George.
I need not ])oint out that if the death of those pups was attributable to
the killing of their mothers by pelagic sealing, that you must have found
corresponding indications of death of pups equal or proportionately
upon both islands. I think that will not be disputed.
ORAL ARGUMENT OF SIR CHARLES RUSSELL, Q. C. M. P. 19
But not only that, but the evidence further establishes the fact that
the death of pni)S was found to be confined to particular rookeries on
that particular island of St. Paul, again showing- that if the death of
the pups in 1891 had been attributed to the killing by pelegic pursuit
of the mother they would have been found to be distributed over both
the islands and upon the rookeries of each of the islands, where as it
was found confined to one island, and only to the rookeries on that
island. But in the next i)lace, and conclusively on this point, the
evidence establishes, and I will read it to-morrow morning that the same
thing was to be found existing and to the -same extent in the year 1892,
when there was no pelagic sealing at all in Behring Sea.
It follows from these facts which I have mentioned, and which I will
make good tomorrow morning, that this charge of this enormous death
which occurred in these two years to pup-life upon the Pribilof Islands,
was due to pelagic sealing, will be found to be entirely without support.
Lastly, there is this extraordinary comment; they now get a number
of witnesses, Aleuts and others, who make affidavits that they had
noticed deaths of pups in previous years which they connected with
pelagic sealing and with the killing of the mothers at sea, which they
say began to be serious in 1884, and went on increasing in 1884, 1885,
1880, 1887, 1888 and 1889. And yet, wonderful, to relate, in no official
Eeport is there any reference to that fact; and although Professor
Elliott was there in 1890 for the purpose of examining and reporting
upon the whole of the question, not one of the Witnesses upon the Island
ever drew attention to this question of the death of pups in any way
suggesting directly or indirectly that it had anything to do with pelagic
sealing at all. The result is, his Report is entirely silent on the question.
Senator JNIorgan. — You do not dispute the fact that the pups died?
Sir Charles Russell. — No; on the contrary, the British Commis-
sioners appear to have been the very first to call attention to the fact.
There was a large number of dead pups in the neighbourhood of the
Rookeries.
Senator Morgan. — How do they account for the death?
Sir Charles Russell. — I will read tomorrow morning what is said
about it.
The President. — If You please.
(The Tribunal then adjourned till to-morrow morning at 11,30 o'clock.)
THIRTY-SIXTH DAY, JUNE g^", 1893.
Sir Charles Eussell. — Mr. President, I was yesterday endeavour-
ing to make clear what a very insignificant part pelagic sealing bad
played in the depletion of the seal stock at the date at which the
United States have fixed, the year 1884, as the year when the marked
decreased was observable in the young males. The argument is still
stronger if one refers to the year 1879, or to the year 1877, at which
dates other witnesses speak of large noticeable decreases; because in
those earlier years pelagic sealing was less than in later years. For
my purpose 1884 is sufficiently strong.
I referred yesterday to the figures of the British Commissioners which
I was under the impression, as far as the number of seals killed, was
more favourable to the case of the United States than those of their
own Commissioners; but I find I was not correct in that. Mr. Foster
was good enough to point out to me at the time that in earlier years it
is not so; but for the purpose I was discussing the distinction is hardly
worth entering upon. What I had in my mind was that in earlier years
the number of vessels engaged in pelagic sealing was larger when given
by the British Commissioners than that given by the United States
Commissioners. That was the source of my error. I will not go into
elaborate calculations of figures; but I wish the Tribunal to grasp oue
or two fjicts which are put forward by the United States and which we
assume for the ])urpose of the illustration I am now upon.
According to the table of mortality to which I yesterday referred, it
will be apparent that the United States treat the mortality in the first
year of seal life as amounting to 50 per cent. That will not be disputed;
the tables show that. They also show what is the mortality between
the ages of one and two, and between two and three, and so on; and I
wish, therefore, in a sentence to show how those figures would work
out on the supposition that 1,000 male pups are born in one year. Of
that 1,000 male pups, 500 disappear from natural causes. If there was
no pelagic sealing at all, natural causes will occasion the disappearance
of 50 per cent., or 500 out of that 1,000. So that of 1,000 male pups
born on the Islands, 500 re appear as yearlings; 320 re-appear as two
years of age; and 240 only of three years.
Now bearing that fact in mind if ycui take the largest figure of the
pelagic catch suggested by the United States Commissioners although
those figures are (if I chose to stop to make it) subject to some dis-
count and criticism, yet it will be apparent that to occasion the marked
decrease which is said to have been manifest in 1884 — if you multiplied —
if you double or quadruple the pelagic sealing you cannot account for
the depletion which it is alleged was then observed. Now they have
sought to establish the gravity of the charge against pelagic sealing in
another way, and it was to that point I was adverting when the Tribu-
nal rose yesterday evening, namely, they say we are able to specifiy a
particular year in which there was an abnormal number of deaths ot
young pups, not by the killer whale, but by some causes which operated
^0
ORAL ARGUMENT OF SIR CHARLES RUSSELL, Q. C. M. P. 21
Upon them on the islands, because their dead bodies were found upon
the ishuids aiul trom that fact they then proceed to avgne and cite the
opinions of a number of persons upon the ishmds all I think without
exception Aleuts, or nearly all, and they say we attributed this enormous
death of pups, for it was a very large death indeed, there being no cause
to which to assign it, to the fact that the mothers of these pups were
killed at sea — that the pups were left without their natural sustenance
and so died.
Now it they could establish that it would undoubtedly be a very
grave and important fact. But do they?
I refer in this connection to the British Counter Case, page 213, where
the matter is gone into. On page 212 the fact is stated, and then there
is the reference to the British Commissioners' Report which deals with
this matter. It begins at the bottom of that page.
The Commissioners then show, by reference to dates in detail, that the excessive
mortality, when lirst oljserved, had occurred at a time Loo early in the snniiucr to
he explained by the killing of mothers at sea; and point out that, although further
deaths of young occurred at later dates, there appeared every reason to believe that
the whole resulted from some one cause, which had extended from the original
localities, and had become more general.
The Commissioners do not regard the available evidence as sufScieut to enable
them definitely to determine the cause of the mortality in 1891, but suggest the fol-
lowing as among probable causes:
a. Disturbances connected with the collection of "drives," in which nursing
females were included, which animals, though eventually spared, did not succeed in
rejoining their young.
b. Disease of an epidemic character.
c. Stampedes and overrunning of the young.
d. Raids upon the rookeries si^ecially atfected.
I shall have a word to say about the raids on the rookeries a little
later. Then they proceed to observe this which I submit is practically
conclusive agaiust the view suggested.
The circumstance that the mortality observed in 1891 was confined to St. Paul
Island, and was not found on tbe neighbouring Island of St. George, is in itself
sutlicient to indicate that it cannot be attributed to the killing of seals at sea. All
the witnesses cited in the United States Case in respect to the mortality in this year
speak of its occurrence on St. Paul Island only.
Now surely, if I rested here, that would be an answer to the sugges-
tion that it was caused by pelagic sealing, because it is impossible to
suggest with any show of reason or of probability that the seals cap-
tured by pelagic sealing only came from St. Paul's Island and that a
proportion of them did not also come from St. George's Island. But
not only that — they go on to show that it was contined to particular
rookeries even upon St. Paul's Island itself. So much for the year 1891.
But we have got still further, and subject to the better oi)inion and the
more dispassionate opinion of the members of the Tribunal, what I sub-
mit is a conclusive answer to the suggestion, namely, that in 1802, when
there was practically no pelagic sealing in Behring sea, where there
may have been 300 or 400 or 500, seals, killed at sea — when the modus
Vivendi was in full operation, we have the very same mortality occur-
ring and manifesting the same features. Now it does, therefore, with
great deference to my learned frietids and those who put forward this
argument, seem to me impossible to maintain that thesis in connexion
with the death of pups in 181)1 and 1892, That latter matter in 1892 is
dealt with in the first volume of the Appendix to the Briti.sh Counter
Case, pages 145 to 148, and if my learned friend would be good enough
to read it for me, I would ask him to do so.
22
ORAL ARGUMENT OF SIR CHARLES RUSSELL, Q. C. M. P.
Sir EiciiAUD Webster. — The causes that led to the destruction of pups on the
bieedinj; islands are, so for as they have been noted by me —
(a.) The wandering away of the young seals from the vicinity of the breeding-
grounds, and subsequent failure to find female seals from whom they can obtain
milk. This seldom occurs where a harem is situated between a clifl' and the water,
or backed by rocky steeps, as at Lukannon rookery on St. Paul Island, and parts of
North rookery on St. George Island. Pups can most easily lose themselves when on
such rookeries as Polaviua, Reef, or Upper Zapadnie on St. Paul Island, and Zapad-
uie on St. George Island. At these places they frequently wander a short distiiuce
to the rear of the occupied rookery-ground, and are soon lost, especially if boulders
lie between them and the breeding-ground. A pup's confusion is naturally much
greater at such places as Sea Lion Point or at Reef rookery, where, on going but a
short distiince inland, cries of seals can be heard from both sides of the point. Two
or three pups so lost were seen l)y m'- every time I visited Reef rookery, and seldom
with strength enough to move more than a few yards, if at all. These pups of course
die, and are, with few if any exceptions, dragged away and eaten by foxes. While
scattered dead pups were always to be seen on the open ground between the rook-
eries on Reef Point, none that had been dead more than a few days were ever noted,
though partly-eaten carcasses were not infrequent, so that the number of carcasses
seen at any one time includes but a small part of the whole number that have died.
During the months of July and August a great many females were watched as they
came from the water, and although in a few cases they were seen to go to the extreme
back of the occupied rookery-ground, none were seen to go beyond it.
(b.) Many pujjs lose their lives when stampedes occur, and many others when bulls
dash among the breeding females and their young to prevent the escape of a female
from the harem.
The scattered dead pups that are to be seen on all rookeries have been destroyed
in either of these ways.
(c.) A few pups probably lose their lives in the surf, or by being dashed upon
rocks, but the number must, under ordinary circumstances, be very small. As
early as the 18th July, and on many occasions afterwards, pups were watched while
in the water close to the shore, and though they were often thrown with great force
against the rocks, no pup was ever seen to receive the slightest injury. These causes
of death to young seals were noted by me, but are obviously insufficient to account
for the great mortality among the pups on Polavinaaud Tolstoi rookeries.
While standing beside the camera at Polaviua rookery on the 22nd July I counted
143 dead pups; they were of the same size as the living pups near them, and exhib-
ited no sign of having died of hunger, nor did it appear that they had been crushed
to death in a stampede, as those that could be seen were at or near the limit of the
rookery-ground. No estimate could be made of the number of dead pups that were
lying on this rookery, as the seals lay so closely together on its southern and eastern
slopes that but a small part of the breeding-ground was visible. Professor Everman
(a naturaliston United States Fish Connuission steamer "Albatross"), who was with
me at this time, and who counted 129 dead pups, thought, with me, that if so many
were to be seen at the outer edge of the rookery-ground, the whole number must be
very great, and about a month later (2flth August) I had ample proof that this was
the case. I revisited Polavina rookery on this date with a native, Neh-an Mandri-
gan. This man speaks and understands English very well, and was at this time on
his way to Northeast Point to take charge of the guard-house there. A great nuiny
dead pups were lying at the south end of the rookery, nearly or quite as many as
were to be seen on Tolstoi rookery. They were lying on a sandy slope between the
water and the rocky ledge that separates the lower from the higher parts of this
rookery-ground, and were rather more grouped together than at Tolstoi, from 10 to
100 lying quite close together, with spaces from 5 to 10 yards square between the
groups. There were individual dead pups scattered everywhere over this rookery
sm on all others, but on that part of it referred to above the number was very great,
and the ground on which they were lying was quite deserted bj'^ living seals. They
extended as iar as could be seen along the rookery, but as only the front sloping to
the south could be seen, the number beyond the point to the northward could not be
estimated. It was at the south end of this rookery that the British Commissioners
report having seen a few hundred dead pups in 1891. Photograplis taken the 5th
August show this ground with the breeding seals still upon it, but many dead pups
may also be seen. The native Neh-an Mandrigan was asked how he accounted for so
many dead pups; he replied that bethought they had been killed when the old bulls
were fighting, but a few minutes later said that he was mistaken, that their mothers
must have been killed at sea, and the pups have died for want of food. He at this
time told me that he had never seen so nuuiy dead pujis on any rookery before. He
had seen those on Tolstoi rookery in 1891, but had not visited that place in 1892.
Dead pups were first noticed by mo on Tolstoi rookery the 19th August, though
photographs taken by Mr. Mayuard on the 8th August, while I was on St. George
ORAL ARGUMENT OF SIR CHARLES RUSSELL, Q. C. M. P. 23
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 tlie dead i»nps I counted over 4,000, but they lay so closely
together that it was impossible to Judge what proportion of the whole number was
seen. I was told by the Treasury Agents on the island, and have no reason lor dis-
lielieviug their statements, that when this rookery was carefully examined late in
1891 as many or more dead pups were found among the rocks or other parts of the
rookery as were on the open space, and seen and specially remarked upon by the
British Commissioners in 1891. This being so, it is reasonable to assume that such
would be the case again this year. The dead pups noticed by me were on the same
ground on which those seen last year were lying, but were scattered over a larger
area, and in much greater numbers.
I accompanied the British Commissioners when they inspected Tolstoi rookery in
1891, and the date of my visit to that rookery this year coincided with tbeir visit to
it last year. Depending upon my memory alone, I had no hesitation in deciding that
there was a greater number of dead pups at that place in August this year than at
the same date in 1891, and a comparison since my return from the islands of thepho-
tograjdis taken during the two seasons proves that this is undoubtedly the case.
The pups when I first saw them appeared to have been dead not more tban two
weeks, and nearly all seemed to have died about the same time. Very few were
noted that were in a more advanced state of decomposition than those about them,
ami the dozen or so that were seen were probably pups that had died at an earlier
date, and from some other cause than that to which this unusual mortality among
the young seal, is to be attributed.
The photographs taken on the 8th August show that at that time there were
several groups of seals hauled out on ground on which the dead pups lay, but on
the 19th August it was almost entirely deserted by the older seals. This rookery
was revisited on the 21st August, and at this time an estimate was again made of
the number of dead pups. A large band of holhischickie on their way from the
water to the hanling-gruund 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. On the 23rd August I again visited
Tolstoi rookery in company with Assistant Treasury Agent Aiusworth, Mr. Maynaid,
the photographer, and Anton Melavedotf. who is the most intelligent native on St.
Paul Island, and has charge of all the boats and store-houses belonging to the Com-
pany. This native acted as boat-st<-erer at the time the British Commissioners
visited Tolstoi rookery in 1891, and that I might learn his o])luion regarding the
relative number of dead pu])s for the two years 1891-92, I asked him to accompany
me on the occasion referred to above. When asked whether there were as many
seals in 1892 as in 1891, he replied: "More; more than I ever saw before." I, at the
tiuie, asked Mr. Maynard to pay particular attention to what was said, and he has
since made an affidavit to the above eti'ect, which is appended to this Kei)ort.
Sir Charles Russell. — Let that be realised, and see wliat the force
of that is in 1892, when pehigic sealino^ was prohibited, when there was
no pelajjic sealing; and, in corroboration of the fact that tliere was very-
close vigilance, will you refer to the bottom of page 147 where Mr.
Macoun goes on to state this.
Whites and natives on the island were unanimous in saying that the mother of
the ]iups found dead on the rookeries had been killed at sea, and that their young
had then starved.
That is a strong opinicn against us they say that the mothers had
been killed at sea and thereupon the pujjs starved; but what is the
answer? Mr. Macoun goes on to say.
During the months of July, August, and September I had frequent opportunities
of conversing with the officers of nearly all the ships stationed in Behriug Sea, both
those of the United States and of Great Britain.
You understand that ships of both nations, Sir, were policing the sea
at that time.
And all agreed that it was not possible for a schooner to have been in and out of
Behriug Sea in 1892 without being captured (see statement in Appendix (C.) of
Captain Parr, the Senior British Naval Officer stationed at Behriug Sea).
Then Mr. Macoun proceeds.
The cruises of the various ships were carefully arranged by Captains Parr and
Evans, and so planned that no part of Behriug Sea to which sealing-vcssels were
likely to go was left unprotected. Her Majesty's Ships "Melpomene" and "Daphne",
24 ORAL ARGUMENT OF SIR CHARLES RUSSELL, Q. C. M. P.
ami United States Ships "Mohican", "Yorktown", ^'Adams", "Ranger", "Rnsh",
and " Cinwiu", wore engaged in this work. No skins worth taking into acconut
were found on the small vessels that were seized, and most of those they had on
board were donhtless taken ontside Behring Sea, so that to whatever cause the
excessive mortality among these young seals is to be attributed, sealing at sea can
have had nothing to do with it in 1892.
My learned friend reminds me that the United States number for
that year is 5(!0.
Tlie Phesident. — Do you exchide the effect of tlie catches out of
Reining Sea, because there were very great catches out of Beliring
Sea?
Sir Charles Russell. — Obviously one must because you recollect,
Sir, the argument is, and, we think the well founded argument, that
these pn])s are born on the Pribilof Islands. Their case is that during
the period of nursing the pups, the mothers go some distance no doubt
from the Pribilof Islands, as they suggest. We shall consider that at a
later stage in another connection; but I find no suggestion of nursing
mothers going outside Behring Sea. You will see that that is an
answer, Sir.
The President. — Yes, that is an answer.
Sir Charles Kussell. — Now, lastly, I have to dismiss the subject
with this observation; whether the decrease is stated to be in 1877, as
some say, or in 1879 as others say, or in 1881 as the United States now
say, I have to put this to the Tribunal; if this theory of mortality in
the pups being caused by the death of the mothers at sea is well-
founded, you would expect that opinion to have been expressed some-
where or other between 1879 and 1890, or 1891 or 1892 — you would
have expected to find that theory put forward somewhere or other by
some ofiicial or other. Now, I will call upon the United Stales, when
their time comes, through my learned friend, Mr. Phelps, to show any
report suggesting that as a cause till the later period when the matter
is ]iractically, so to say, in litigation between the parties.
Nay more, in 1890, when Mr. Elliott is sent to the island for the pur-
pose of reporting upon the whole condition of the islands, and of the
seal race, is it conceivable that if this had been in the minds of resp(m-
sible persons on the islands during his visit in 1890, that depletion was
largely caused by the death of pups, and the death of pups was caused
by pelagic sealing, that that would not have beeu stated to him, that
he would not have tried to find out the cause for himself, and yet we
have the fact that from the beginning to the end of this most careful
and elaborate report of his, there is not a suggestion of the kind. What
makes that the more remarkable is, it is not merely a kind of official
rei)ort, but he has appended to his report the observations which, from
day to day, and from place to place, he records in his diary, and repro-
duces that as an appendix to this report of his, yet there is an entire
absence of any suggestion as is now put forward. I submit, therefore,
without any hesitation, Mr. President, that it is demonstrable that
pelagic sealing could not have accounted for the sudden and great and
marked depletion of the seal race which is said to have existed.
Now what have we against all this argument? Absolutely nothing
except the affidavits or depositions or statements of certain Aleut wit-
nesses, natives on the islands and others, made in 1892, 1 think — either
1891 or 1892, but I think in 1892, and if the opinion had been present
to the minds of these persons at that time, it is inconceivable that they
would not have made those statements to some of the official represent-
atives of the company or of the United States. I am speaking of
witnesses on the spot. I am not shutting my eyes to the fact that
ORAL ARGUMENT OF SIR CHARLES RUSSELL, Q. C. M. P. 25
there are numerous statements of persons who express as a matter of
opinion that the deaths are caused in this way and that way, but these
are persons who simply find themselves unable to liud auy definite
cause for this marked mortality.
I therefore, come to the next point, if pelagic sealing is shown to be
utterly inadequate to account for this depletion for this attack upon the
sealeries we must look for the causes of that depletion and the results
of that attack in other directions. In what other direction? Well, I
say we find the case carelnlly and elaborately explained in the report
of Mr. Elliott. I do not forget that my learned friends have made
some etforts to discount the value of Mr. Elliott's testimony. I am
sure the Tribunal will ju<lge by the value of that report, by its intrinsic
merits, and by the view that they take of the contents of that report,
whether or not they are hasty opinions, or whether or not they are not
careful results of a conscientious man trying to accunuilate all the
information that he can on this subject. So far as that report is a
matter of Mr. Elliott's opinions let my learned friends criticise it as
they please; but they av ill not be heard, and they cannot be heard when
he is recording facts. They cannot suggest that their own ofldcial, a
highly trusted ofiicml, and ireqnently employed, is coming to invent
statements against the interests of the country to which he belongs
and against the United States Executive Government which employs
him. It is the case, as I said to-day, of a witness called for the plaiu-
titf, who turns out to be a most valnable witness in the suit for the
defendant. They are now saying to him as Balak said to Balaam,
I called thee to curse miue enemies, and thou hast altogether blessed them.
It is not correct to say lie has altogether blessed them, because it is
one of the facts which goes to show the bona fides of this gentleman
that he is as strong against pelagic sealing as anyone can be in the
interests of the United States, but having gone to the islands with the
preconceived idea that pelagic sealing was the root of the mischief, he
is met by circumstances and by facts which compel his judgment to
the coiu'lnsion that it is not pelagic sealing mainly or principally, but
that the causes have been the wasteful, improvident, uneconomic man-
ner in which the islands have been administered. I have told you who
Mr. Elliott was, and where he was employed already, and I find that
he is the author of a number of works upon this subject.
He may theu well be described, as he was described by Mr. Goff the
Treasury Agent, and by Mr. Blaine in effect. Mr. Golf whose testi-
mony is the more important, because he was with Mr. Elliott on the
islands in 1890, and he makes no report, and makes no afHdavit which
is forthcoming to countervail the report of Mr. Elliott. I find on page
148 of our printed argument, and I will not trouble you to do more
than take a note of it, a list of the works published on this subject by
Mr. Elliott. They are nearly all, or a great many of them, published
by the Washington Government.
N" 1. Report on the Prihilof group or Seal Islands of Alaska in 1873. (Washing-
ton Goveruuient Printing Office.)
N" 2. Report of the Secretary of the Treasury concerning the waste of seal oil,
and the "natives" of the Pribilof Isl.inds, and the brewing of quass. (H. R. 44th
Congress, first session. Ex: Doc: n" 83 pp. 103 and 104.)
N" 3. Kepnrt upon the condition of affairs in the Territory of Alaska. (Wash-
ington Government Printing Oltice, 1875.)
N" 4. Ten years' acquaintance with Alaska, 1867 to 1877. (New York. Harper
Brothers.)
26 ORAL ARGUMENT OF SIR CHARLES RUSSELL, Q. C. M. P.
N" 5. The Seal Islands of Alaska. (Washingtou Government Printing Oflice,
1881.)
N" 6. Report on the Seal Islands of Alaska. (Washington Government Printing
Office, 18X4.)
N° 7. Our Arctic Province.
This Gentleman has a right, I think, to be heard, and to be treated
witli respect when heard.
Now I have this volnme before me, and before I call attention in a
very cursory way to it, because I endeavour to follow the lines I have
laid down for myself at the beginning-, namely, to treat this question
in the broad outline, putting upon my learned friends the res])onsibility
of dealing with it, as it must be dealt with in detail — before I call atten-
tion to that report there are one or two dates in connection with it which
I think it is exceedingly important you should have in your minds.
You will recollect that Mr. Elliott was appointed by a Statute of Con-
gress for the purpose of making the report which is before you. He
makes tliat report in Washington on the 17th November, 1890. It lies
in the Government Office. It is not published. It is not printed. One
does not need to conjecture the reason.
The reason is obvious: it did not suit the purposes of the United
States in the contention in which they were engaged; but on the 4th of
]\lay 1891 there appeared an extract from this Keport in the Cleveland
Lender. It is so long ago since we had the discussion about the admis-
sibility of this Keport, that you. Sir, will no doubt have forgotten the.<e
fads though they were then mentioned, but the dates are very signiti-
cant. On the 4th May 1891 the extract appeared in the public press.
If it had not appeared in the public press, it would have lain perdue,
and we wouhl have known no more about it.
At that time a resjiectable gentleman, Mr. Stanley-Brown, was at
Washington, and on that very 4th of May Mr. Stanley Brown goes to
San Francisco and later in the month of May leaves for the Islands.
In fact he leaves for the Islands on the tilth May and arrives at
St. George's on the 9th June. He left on his return on the liTth
September 1891 and reached San Francisco on the 2nd October 1891.
I pause for a moment. We have him back safe and sound in San
Francisco on the 2nd October 1891. First of all is it an unfair assump-
tion that Mr. Stanley-Brown had Mr. Elliott's report, was told of it,
if not furnished with a copy of it, was told its pur]iort, was sent
out with the view if he honestly could of counteracting its effect,
and, if he honestly could, of arriving at different results from those
arrived at by Mr. Elliott. He gets bflck on the 2n(l O'^tober 1891,
but from that day to this we have no report from Mr. Stanley-Brown —
none whatever. We have indeed two affidavits, one dated the 28th
March 1892, and the second the lOth December 1892. I will not go
into those two affidavits, but I will ask you when my learned friend is
dealing with the precise definite clear statement of fact advanced by
Mr. Elliott to ask yourselves, if I may resi ectfully so suggest, as you
go along whether Mr. Stanley-Brown, as he indulges in a good deal, I
admit, of oi)inion which points in a direction different from that of Mr.
Elliott, — whether he challenges any of Mr. Elliott's facts, and gives any
circumstances or particulars to support him in contradiction to the
views of fact advanced by Mr. Elliott.
Now bearing in mind, Sir, that though we are now told there was a
marked decrease observed in 1884, some as I have said say earlier, in
1877 and 1879, yet that up till the year 1889, the reports from the islands
had been of the most glowing character. I will not stop to refer to
them. As late as 1889 there is a report of Mr. Tingle giving a most
ORAL ARGUMENT OF SIR CHARLES RUSSELL, Q. C. M. P. 27
glowing description of the way in wliich the seal race has flourished on
and iu the neighbourhood of the Pribilof Islands.
It is with these statements before him, and the further statement that
pelagic sealing is begininug to make a formidable play or show iu the
neighbourhood of Behring Sea, that Mr. Elliott goes to the Islands.
Now I have said I am not going to read this report, because it would
take me a long time to go through it, and to go through it thoroughly,
as it must be gone through thoroughly, but I will epitomize the points
to which he refers. He'recoguizes pelagic sealing as a contributory
cause of the mischief, but he does not stigmatize it as the main cause
of the mischief. He attributes the depletion which he observes to the
excessive killing of males, to the injurious system of driving, to the still
more dangerous system of redriving again and again the same seal, and
he arrives at the conclusion that the drives should be so managed that
the seals actually driven are killed. He points out that whereas under
the older state of things when he was visiting the islands in 1873 and
1874 it was not necessary ordinarily speaking to turn back as it was
called more than 10 to 15 per cent of the entire number sought to be
driven — that so reduced was the condition of things that they had to
be driven and driven again and redriven and turned away from these
drives as much on some occasions as 85 %of theentirenumber— I believe
I am understating it now — it was as much as 90 per cent as my learned
friend reminds me in some cases. He points out what the result of this
is. He points out that the result of that driving is to cause the death —
I think the expression is — " of countless thousands " — he points out the
further result is, as regards those surviving, that in consequence of the
cruelty to which tliey were subjected, so far as they were nudes, it was
pernjanently to injure if not destroy the use of those males for the pur-
pose of procreation.
iSTow these are the results at which he arrives, clear and distinct —
not vague opinions, but perfectly justitied, as I submit the Tribunal
will see wlien they come to examine his report by facts and circum-
stances which he vouches.
I wish to say a little more about this. The system pursued now and
which is claimed to be the only proper system is, as the Tribuiuil will
recollect, the killing of males only. We submit that that, as it has
been carried on, is not a sound principle and how my learned fi lends,
with that marked devotion which they profess for tlie law of nature,
could have found it in their hearts to justify it I do not understand.
This is an admitted fact that nature iu its arrangements produces an
equal number of males and females — that is the law of nature. Is
it to be said that that law exists for no purpose whatever. So is it to
be said that there was net some wise purpose in dealing with animals
ferw naturae in these balances of the two sexes— I speak of animals
ferw naturce only. — If you are dealing with animals domesticated or
tamed, so that you can make judicious selection of the best specimen
for the purpose of reproduction in dealing with such animals we are
able from long experience and observation to arrive at definite and
safe conclusions as to the productive capacity of the female or as to
the duration of the virile power of the male, and we may, by a system
of artificial rules, improve the breed, but where you are dealing with a
race admittedly /erce naturae incaiiable of improvement in the breed by
the art of man, dealing with a class where you cannot select the best
specimens of males and females for the puri)ose of reproduction, where
you are practically in ignorance, for that is one of the appalling facts
in this case — the amount of ignorance, and very little is known about
28 ORAL ARGUMENT OF SIR CHARLES RUSSELL, Q. C. M. P.
seal life even to-day — entire ignorance of even tlie length of the life of
a seal — entire ignorance, in any accurate way at least, of the length of
•reproductive power of the female — ignorance of how long the virile
[jower of the male for reproductive puri)oses will continue, yet they
have been going on disturbing that balance which nature had fixed
between these sexes and defending^ that as the only jjossible way in
which the seal race is to be dealt with.
Now in this connexion I wish to call attention again to those tables
very briefly. It is the only reference to diagrams which I shall trouble
you to make, but I must ask you to n^fer again to two of the diagrams
which are to be found at page 352 of the United States Case, which
will be found very useful, and if you will be good enough to favour me
by opening, so as to have them for easy reference table A and table 0,
those are the tables which relate to males. I may assume that each
member of the Tribunal appreciates these diagrams. I do not stop to
try to explain them. — I did yesterday try to explain them. This table
A is dealing with the normal conditions, apart from killing, of a herd
when it has got to a point of what I suppose may be called natural
equilibrium — that is to say, has got to the point which, looking to the
natural causes and natural enemies to which it is exposed, and the
supplies of food, and so on, is the point beyond which it would not
reach and to which it would not attain unless it were by the act of
man, or otherwise artificially interfered with. That is principle of the
diagram. They are in the coloured part and distributed as they would
be in such a herd. The green shows the yearlings to the left of the
first line. The green, so far as it is to the left of the figure 2, going up
the column, shows the two year olds; the pink to the left of the column
at the bottom of which is the figure 3, the three-year olds; then the four-
year olds, then the five-year olds; and the yellow, from 8 to 19 or 20
years of age; and each of those small squares represents 100; and the
sum total of the squares so coloured is 40,025 or say 40,000 odd.
Now you observe there that in the columns from 3 to 7 which repre-
sent the class of males which is to supply the future stock of bulls for
the purpose of reproduction, there is a very considerable number.
What the number is I will tell you, because it has been worked out very
carefully. Will you turn to diagram C? You will observe there that
the yearling and two-year-old columns, the green on the extreme left,
are the same as in diagram A. But in succeeding columns it shows the
condition of the same herd or stock of 40,000 under conditions described
as "properly regulated killing." And again, you will see the manner
in which the entire number is made up and how it is reduced. The
numbers are not shown on the face of that diagram, but the means of
computing the numbers are shown and it is easy to determine how many
seals are included under each class, or colour, of the diagram. Now
these figures have been worked out and they are very remarkable. In
the normal condition of natural equilibrium and apart from killing, there
would be, according to the figures there shown, 3,500 young bulls at any
one moment. — It is one of the assumptions in all these diagrams that
the seals have obtained their natural maximum number, no increase
being possible beyond this, and the same number dying each year that
is born in each year. — In the normal condition, therefore, we have 3,500
young bulls from 5 to 7 years of age, the breeding bulls in the same
normal condition 13,(520. That is the normal condition of things. Now
what is the condition of things under the system which is called normal
"under properly regulated killing!" Why it is this;
ORAL ARGUMENT OF SIR CHARLES RUSSELL, Q. 0. M. P. 29
Instead of there being 3,500 young bulls to supply the place of those
that become incapable, there are 500 only and in the place of 13,020
breeding- bulls which the normal condition shows, there are 1,080 only.
There is a reduction therefore of the stock from which the future bulls
will come from 3,500 to 500, and a reduction of the breeding bulls them-
selves from 13,020 to 1,080. These are the figures upon the face of the
diagrams themselves. Can anybody doubt that that interference with
the natnral condition of things, that destruction of the young male
stock, that interfering with the proportion of the sexes, must have, as
Professor Elliott shows it nnist have had, a most serious and detrimental
effect. The consideration of how that is made out by him, would lead
me much wider and into more detail than I at all propose myself to go.
That my learned friends will deal with. Suffice it to say that, whereas
he insists that the proper condition is one in which the bulls, taking
their place upon the rookeries and awaiting the arrival of the cows,
have to fight for their harems, have to assert their rights by sheer force,
and so the principle of natural selection and survival of the fittest is
worked out: that in lateryears that state of things has entirely changed
and that the harems have grown proportionately to the bulls quite in
excess of what they ought to be — passage after passage and page after
page of this Report is filled with records to that effect.
1 have merely to contrast the state of things which he describes as
existing in 1874, and which other witnesses describe as well, where the
male seals were fighting and one endeavouring to assert its supremacy
over the other; and he describes the condition of things as entirely and
absolutely changed. This condition of things was one in which tlie bull
formed his harem, fought for his wives, and secured as many as he could
on the principle of natural selection. What is the condition of things
as it is now*?
I will read one passage, and one passage only because it is so expres-
sive, from one of the aftidavits of Mr. iStanley-Brown. It is the affidavit
set out in the American Counter Case, at i)age 385. I may observe
incidentally that, though Mr.Staidey-Browndoesnot say so, his affidavit
clearly shows he was fully aware of the conclusions that Mr. Elliott had
arrived at; because you will find that, though he does not put forward
his opinions as distinctly traversing the opinion of Mr. Elliott, he does
refer to them as statements made which he thinks are not well founded.
This is an illustration, the last statement but one on page 385.
Any statement to the effect that the occasional occurrence of large harems indicates
a decrease in the available iiaiiiber of virile males and hence deterioration of the
rookeries, should be received with great caution, if not entirely ignored.
That is a statement which Professor Elliott undoubtedly put forward.
This is reversing the order of nature as we generally understand it.
The bulls play only a secondary part in the formation of harems. It is the cow
which takes the initiative. She is in the water beyond the reach or control of the
male and can select her own point of landing. Her manner on coming ashore is
readily distinguished from that of the young males which continuously play along
the sea margin of the breeding grounds. She comes out of the water, carefully noses
or smells the rocks here or there like a dog, and then makes her way to the bull of
her own selecting.
^o"
It seems to be "Leap Year" all the year round on the Seal Islands!
And in the order of nature, that law which is so much respected by my
learned friends, the advances are supposed generally to come from the
males; but here is the ingeiiuousand i)erfectly honest Mr.Stanley-Brown
giving as a j)icture that which is the strongest corroboration of the
utterly demoralized and unnatural condition to which, under the man-
30 OEAL ARGUMENT OF SIR CHARLES RUSSELL, Q. C. M. P.
agement of the United States lessees, because I do not suppose the
Executive of the United States knew very much about it, the Ishmds
had readied. It would be impossible, I submit, to select a stronger
passage in confirmation of the general results at which Mr. Elliott has
arrived than that passage which I have just read. My learned friend
is good enough in this connection to refer me to the monograph of Mr.
Allen, published in the Washington Government Printing Oflice in 1880,
where he gives the picture of things as he found it in 18(59 at page 385,
and what is the contrast between the two statements? You have heard
Mr. Stanley-Brown's ingenuous description, and this is what Mr. Allen
says.
General Foster. — I think you will find that is quoting Mr. Bryant.
Sir Charles Russell. — I am obliged ; I see it is in inverted commas.
General Foster. — Mr. Allen was never there.
Sir Charles Russell. — IS^o doubt, it was Mr. Bryant who was on
the Islands, I forget for how long.
General Foster. — For a good many years.
Sir Charles Russell. — Yes; and perhaps that makes it more val-
uable than the opinion of Mr. Allen, if Mr. Allen was not, as my friend
says, on the Island,
I begin at the bottom of page 382.
The male fur-seal attains its full growth and strength at the age of six or seven
years, when it weighs, at the time of lauding, from three hundred and fifty pounds
to four hundred; in exceptional cases a weight of four hundred and fifty pounds is
attained. The males acquire the power of procreation in the fourth year, and at five
years share largely in the duty of reproduction. The females bring forth young in
their Iburth year.
That difl'ers from the opinion of others, who say that it is in the third
year. Then he goes on to describe the arrival on page 384 at the bottom
of the page.
By the middle of June,
And this date is not unimportant with reference to another matter
which I shall have to describe, he says:
all the males, except the great body of the yearlings have arrived.
1 think I ought to read a little higher up, to explain how the bulls
proceed. At the top of page 384- he says this, which perhaps I ought
to read.
On their arrival at the island the full grown seals separate from the younger, the
former hauling up on the shore singly or in groups of two or three, separated by
quite wide intervals.
Then a little lower down he says :
It is only the " beachmasters", or breeding bulls, on the rookery that remain con-
tinuously in their places, for if they were to leave them tLey would be immediately
occu])ied by some other beachmaster, and they could regain possession only by a
victory over the trespasser. The struggle among the old bulls goes on until the
breeding grounds are fully occupied, averaging one old male to each square rod of
space, while the younger, meantime, find their way to the upland. During the lat-
ter portion of the lauding' time there is a large excess of old males that cannot find
room on the breeding places; these pass up with the younger seals and congregate
along the u])per edge of the rookery, and watch for a chance to charge down and
fill any vacancies that may occur. These, to distinguish them from the beachmas-
ters, are called the "reserves", while those younger than five years are denominated
by the natives " holluschucke ", a term denoting bachelors or unmarried seals. It is
from these latter that the seals are selected to kill for their skins.
By the middle of June all the nuvles, except the great body of the yearlings, have
arrived; the rookery is filled with the beachmasters; the reserves all occupy the
most advantageous position for seizing, upon any vacancies, and the bachelors spread
over the adjoining uplands. At this time the first females make their appearance.
ORAL ARGUMENT OF SIR CHARLES RUSSELL, Q. C. M. P. 31
They are not observed in the water ia any numbers until they appear on the shore.
Iiuniediafel^ on landing they are taken possession of by the nearest males who
compel them to lie down in tlie si)aces they have reserved for their families. For a
few days the femnles arrive slowly, but by the 25th of the mouth thousands land
daily. As soon as the males in the, line nearest to the shore get each seven or eight
females in their possession, those higher up watch their opportunity and steal them
from them. This they accomidish by seiziug the females by the neck as a cat takes
her kitten. Those still higher up pursue the same method until the entire breeding
space is tilled.
And tlien he ffoes on to describe the fighting among them for the
possession. Will yoa contrast those two pictures?
Again, in 1874, Mr. Klliott, in his book which I have already referred
to on the seal Islands — the book published in 1881 at the Government
Press Printing Office says on page 35:
Between the 12th and 14th of June, the first of the cow-seals, as a rule, come up
from the sea; then the long agony of the waiting bulls is over, and they signalize
it by a period of universal, spasmodic, desperate lighting among themselves.
Though they have quarreled all the time from the moment they first landed, and
continue to'do so until the end of the season, in August, yet that lighting which
takes place at this date is the bloodiest and most vindictive known t() the seal. I
presume that the heaviest percentage of mutilation and death among the old males
from these brawls, occur iu this week of the earliest appearance of the females.
Then he, like Mr. Bryant, describes the organization of the seraglios?
at page 30. He says :
They are noticed and received
that is the females are —
by the males on the waterline stations with attention; they are alternately coaxed
and urged up on the rocks, as far as these beach-masters can do so, by chuckling,
whistling, and roaring, and then they are immediately under the most jealous super-
vision; but, owing to the covetous and ambitious nature of the bulls which occupy
these stations to the rear of the waterline and way back, the little cows have a rough-
and-tumble time of it when they begin to arrive in snnill numbers at hrst; for no
sooner is the pretty animal fairly established on the station of male number one,
who has welcomed her there, than he, perhaps, sees another one of her style in the
water from whence she has come, and, in obedience to his polygamous feeling,
devotes himself anew to coaxing the later arrival, by that same winning manner
so successful in the tirst case; then when bull number two, just back, observes bull
number one oft' guard, he reaches out with his long strong neck and picks up the
unhappy but passive cow by the scrutf of her's, just as a cat does a kitten, and
deposits her upon his seraglio ground; then bulls number three and four, and so on,
in the vicinity, seeing this high-handed operation, all assail one another, especially
number two, and for a moment have a tremendous fight —
and so forth.
If I were to enlarge upon this I should be led away from the line
which I have endeavoured so far to follow. One other cause, and not an
unimportant cause, Mr. Elliott mentions. But just see what is the
obvious result of this state of things which he describes — that unnatural
reduction of the young bull stock to one-seventh of its number in a nor-
mal condition — that unnatural reduction of the breeding bulls to some-
thitig like the same — between one-sixth and one-seventh of its normal
number in its natural condition. One expects to find the results which
are pointed out and which will be pointed out in detail, of the evidence
of useless bulls — bulls not having lost their sexual instinct, but, having
by driving and re driving lost their power of reproduction, liave become
incapaces res; and the increase which the evidence points to of the enor-
mous number of barren females, and so the birth-rate of the whole race
of seals is seriously injured.
Tlie other cause to which I was about to refer is raiding, but upon
that I oidy wish to say a word or two. With all their anxiety and their
care to cherish the seals, certainly if I am to rely upon the statement
32 ORAL ARGUMENT OF SIR CHARLES RUSSELL, Q. C. M. P.
of their own representatives and agents, the United States Government
has not afforded efficient protec':iou against raiding.
I will not stop to read these aathoritii'S, but I would ask the Tribunal
to take note of them. They are at pages 290 and 291 of the British
Counter Case. Mr. Taylor in 1881; Mr. Kimmel in 1882 — both agents
on the islands. Mr. Gliddeu from 1882 to 1885; Mr. Wardman in 188.');
Mr. Kyan from 1885 to 1887, and so forth. A note of their evidence is
to be found on the images I have already given. Then, Mr. President, I
submit I am now justified in saying that I have, so far, established two
things: That although 1 do not deny at all (and we never have denied)
that pelagic sealing has some operation — is a factor in the question of
reduction of seal life — that it is not the case with which we are dealing.
The main factor — the principal cause — is the mode in which the man-
agement has been carried on upon the islands, and the f;ict that regard-
less of warning the United States lessees have, over a series of years
gone on further and still further and yet further depleting the herd.
It is I think an expressive thing — a very significant thing — to look at
the figures of the killing upon the Pribilof Islands as they were pur-
sued under the Russian regime, with the system as x)nrsued under the
United States regime. Those figures are to be found in a convenient
tabular form, at i)age 132 of the Report of the British Commissioners;
and whereas during the Russian period beginning from 1817 down to
1867 the year of the cession — I have not got the numbers averaged —
anyhow the average is considerably less than 40.000. Considerably
less than 40,000 were killed when the Russian Government possessed
these Pribilof Islands. The highest year but one is the earliest year of
which we have actual record. In that year, 1817, it was G0,(>00 odd.
In 1807 it was 75,000, but in the intervening years the nund)er was
40,000; 150,000; 10,000; 6,000; 8,000; 10,000; 11,000; 26,000; 21,000;
34,000; 40,000; and so forth — an average far less than during the
American period.
Now let me pause here for one instant. It being clear that man can
do nothing to increase the breeding of the seals — nothing I mean in a
positive way. He can by leaving them undisturbed ; he can by abstain-
ing from killing them — but I mean except by negations he can i)osi-
tively do nothing to advance them. We admit therefore that when the
Russians had this management (and they had considerable ex])erience
in it), that they were taking as much on an average as they thought
right; but what is more noticeable in these figures is this — that they
have observed the necessity for varying the number taken, not treating
it on a uniform system as if you were calculating upon a crop of hay
which you mowed every year, and from which you expectt to get the
same result per acre — they regarded it as a period during whi(;h it
required absolute rest; so that you will find in the years 1835, is3fi,
1837, 1838, 1839, 1840, and 1841, the lowest number taken was (),000;
the highest 8,000. Again, in 1850, 1851, 1852, the highest number is
between 6,000 and 7,000; in 1855, 8,000, and so forth through the whole
period of their management. Then we come down to 1867, and in the
years succeeding the cession, we have that admitted serious attack
upon this race amounting to 242,000 in 1868.
In 1869 the killing amounted to 87,000; in 1870 to 23,000; in 1871 to
97,000; in 1872 to 101,000; in 1873 to 101,000; in 1874 to 107,000; in
1875 to 101,000; in 1876 to 89,000; in 1877 to 77,000; and so on, right
down to 1889, with the single exception of 1883, when 77,000 odd were
killed an excess over 100,000 per year. And let me observe this: that
whereas the Russian figures include the number of pups killed for the
ORAL ARGUMENT OF SIR CHARLES RUSSELL, Q. C. M. P. 33
purposes of the islanders during' the years from 1817 to 1837, tliat the
Uuited States figures exclude the number of pups killed upon the
island for the purposes of native food; and the average annual killing
of pups upon the island — I wish the Tribunal to realize this fact —
amounts to, as there stated, 4,()00 pups annually. It does seem to me
a curiously uneconomic condition of things if the seals were worth pre-
serving that the lessees were not made, as part of the conditions of
their bargain, to supply adetpiate food which would dispense with this
sacrifice of seal life which they profess to be so valuable.
Lord Hannen. — Does it appear what i)roi)ortion of the 1,G00 pups
are nuile, and what proportion are female, or is it indiscriminate"?
Sir Charles Russell. — They are iudiscrimiuate so ftir as we know
I think.
Sir Richard Webster. — They are male.
General Foster. — They are males of course — they are all young
males.
Sir Charles Russell. — That may be taken to be so.
General Foster. — I think Sir Charles is not aware of the fact that
we dispute this table of figures on this question.
Sir Charles Russell. — I think. General Foster, I may, quite
respectfully and courteously, say that I assume that everything that
tells against your argument, and your position, you do dispute; I am
not at all relying upon your assent to these figures.
Lord Hannen. — It is an addition, then, to the number of male pups.
Sir Charles Russell. — It is an addition to the number of male
puj)S killed. I thought they did not discriminate the pups. I take
the fact to be that the instructions and injunctions are that they shall
kill only male pups ; but whether those are accurately carried out, is
another matter, because we cannot lose sight of the iact that the
evidence of the fur dealers which has not been questioned as has been
apparent, shews, although it is against the ijolicy and orders of the
United States officials, that a considerable percentage of female seals
are killed on the Pribylof Islands.
General Foster. — The pup-skins never go to market.
Sir Charles Russell. — I am not, in this connection, talking of
pups at all — I am going to shew that even if the directions are given,
it does not follow that the directions are carried out, because as I said
from the Furriers evidence, which I read I am sorry to say a great
many days ago, it is shewn that of late years there was an appreciable
percentage — stated in tlie evidence of some of them I think to be from
10 to 15 per cent — I think one of them says 25 per cent — but up to 15
per cent at all events, of female skins in the Pribylofi" consignments.
ISTow, Mr. President, as my friend Mr. Foster has thought right to
inter[)ose to say that they dispute these figures, I must call attention
to the fact that from the year 1871 down to the year 1889, the figures
are taken from the document which I am now about to describe. On
page 134 the British Commissioners say this :
The figures for these years— that is 1871 to 1889— were taken from Correspoiideuce
relatiug to Bohriug Sea, Seal Fisheries, Farliameutary Paper [C. 0368], pp. 44-47,
and include all boals, otlier than ])U]>s. killed I'or any ])ur|iose. From 1870 to 1889
(both inclusive), 92,804 jiups were killed lor food, an average annual killing of 4,643.
There is the authority for it which Mr. Foster can examine for himself.
That, Sir, is at page 134 of the British Commissioners Report, so that
the authority for the statement is vouched. And if it be the fact that
the instructions have been literally carried out which enjoin the killing
of males, and the killing of males only, then this is an addition to the
annual depletion of the male life of the seals.
B S, PT XIV 3
34 ORAL ARGUMENT OF SIR CHARLES RUSSELL, Q. C. M. P.
I was proceeding, Mr. President to say that I have now got to a point
at which I am entitled to ask the Tribunal to say that pelagic sealing
is not — is shewn not to have been — the main canse of the injury which
the Commissioners both of the United States and Great Britain agree
has taken place in relation to seal life. The main causes are to be found
in the facts stated to which I have already briefly adverted, in that
Eeport of Mr. Elliott; and now I think that these circumstances ought
to have, as 1 am sure they will have, a very important influence on the
mind of the Tribunal in considering the Regulations which have, in
justice, in fairness, aad in equity, to be applied in the circumstances
which I have mentioned. I took the op])ortunity earlier, of saying that
the Treaty does not contemplate Regulations for the aggrandisement
either of the United States or of the lessees of the United States — that
is not the object of the Treaty. The object of the Treaty is declared
to be the preservation of the fur seal species. That is the object to
which the Regulations are to be addressed. To be preserved for whom ?
Here, Mr. President, I cannot but feel that the view which we urged on
this Tribunal at a very early part of this inquiry was one which, if the
Tribunal had seen its way to act upon it, would at all events have sim-
plified the discussion upon which we are now engaged. We thought,
and think, that the question of Regulations was not to be broached or
considered until the questions of right had been determined, and is
there anyone who has heard the course of this case and who having
heard this case — heard the proposition which my friend Mr. Foster, as
Agent of the United States, put forward on the subject of regulations,
who believes that if this question of right had been determined, as we
submit it must be determined — could any such suggestion as is to be
found in the precious paper read yesterday for one moment have been
put forward? We submit that thei'e is not a shred of a case left to the
United States on the questions of right at all. I am arguing. Sir, as you
know, upon the principle— upon the basis — that we have negatived,
and that your determination will negative the existence of any legal
right in the United States except the legal rights which they possess,
ratioyiesoU — as owners of the islands, and owners of the islands alone.
l^ow I wish to say a word or two (before I come a little more closely
to the question of Regulations) about the British Commissioners Report.
I adverted to this subject before. I do not intend to make any length-
ened reference to it now, but I will say this: that when my friend Mr.
Carter tliought it right to make an attack upon these Commissioners
and to make an attack even, in one or two passages, upon their good
faith, I think he had not read the mandate under which they were
acting, and I even doubt whether he had had leisure thoroughly to
master their Report itself. If he had read their mandate he would
have seen that they were called upon by that mandate to inquire into
any fact or circumstance touching seal life : that by their instruction
of June 1891 they were directed to ascertain :
1. The actual facts as regards the alleged serious diminution of seal life on the
Pribilof Islands, the date at which such diminution began, the rate of its progress,
and any previous instance of a similar occurrence.
2. The causes of such diminution ; whether, and to what extent, it is attributable.
{a.) To a migration of tlie seals to other rookeries.
{!).) To the method of killing pur-sued on the islands themselves,
(c.) To the increase of sealing upon the high seas, and the manner in which it is
pursued.
And, finally, in January of 1892 they are enjoined to consider in their
Report what Regulations may seem advisable, whether witltin the juris-
dictional limits of the United States and Canada, or outside those limits.
ORAL ARGUMENT OF SIR CHARLES RUSSELL, Q. C. M. P. 35
I couteut myself with saying therefore, that as regards the area covered
by their Report they would have failed in tlieir duty if they had not
dealt with all the subjects tliataredealt with in their Keport, and when
an attack is made upon them because forsooth they do not " run-a-muck",
if I may use that vulgarism, against pelagic sealing — abused because
they suggest that a combined system of zone and close time and
licence will answer all reasonable purposes of protection of tlie seal
species — my friend forgets that Mr. Blaine thought that a 00 mile zone
round the islands without any close time would have been an ade(iuate
protection of the interests that were at stake; and that my friend Mr.
Phelps, whether intentionally or accidentally, I do not know, in his
printed argument states that the claim which the United States is
advancing is this. Having argued the question of protection, interest,
and property, at page 139 my friend says:
The inevitable concbisioa from tlieso facts is, that there is an absohite necessity
for the repression of killing seals in the water in the seas near the Pribilof Islands,
if the herd is to be preserved from extinction. No middle course is practicable con-
sistently with its preservation.
Therefore if no middle course is possible, the extreme course that my
learned friend suggests is that thei e is an absolute necessity to [u-event
the killing of seals in the waters near the Pribilof Islands if tlie herd
is to be preserved from extinction. I therefore think that the attack
upon the learned commissioners is not merited, not justified; and I can
say in relation to Mr. Elliott's report, that it is not possible to read
that report, as I have read it, and as I have read Mr. Elliott's — every
line of them — without seeing that there is a painfully conscientious
effort upon the part of Sir (Jeorge Baden-Powell, and Dr. Dawson to
put the j^ro.s' and conSj the considerations in favor of, and considerations
against ])articular views impartially and fully before the Tribunal by
whom it is to be used.
Now, I may have to come back to that again for one moment, but I
proceed to the consideration of the general conditions which I submit
ought to be observed in relation to regulations. Mr. President, I begin
by adniitting that according to the terms of the treaty there is no
authority in this Tribunal to enjoin rules to be observed upon the islands;
that is to say, this Tribunal has no legislative authority, if I may use
that word, to legislate directly for the islands; because I must admit
that the Article VII which deals with regulations, limits the question
of regulations for your arbitrament to regulations outside the territorial
limits of the respective governments. But while I admit that, I am as
far as possible from admitting that it thereby follows that you cannot
make regulations which shall be conditional upon the observance of
certain rules upon the islands, which is a very different thing; and I
hope to make it apparent that not only can you do so, but that you
would be failing in giving effect to the prime object of the treaty itself
if you did not do so.
Let me illustrate it at once. Mr. Elliott says in his report that a
period of absolute rest is necessary — not of pelagic sealing merely, but
a period of absolute rest on the islands. He says that witliout that rest
the seal race may not be saved from extermination. Your rules are to
be aimed at that preservation; and let me ask you — because it is an
absolute test of the soundness of the proposition I am advancing; I do
not say whether Prof. Elliott is right or wrong in that — but assuming
you should be of opinion that he is right, and that absolute ces;-^.ation of
killing on the islands is a condition of the preservation of the fur seal
species, am I to be told that you could make no condition in your regu-
36 ORAL ARGUMENT OF SIR CHARLES RUSSELL, Q. C. M. P.
latioiis as to pelagic sealing ? You are to make rules that are necessary.
A rule is uot necessary if it is utterly ineffective and utterly useless and
utterly insufficient; and therefore if the state of the case be — I know-
not what your opinion about it is — but if the state of the case in fact
be that if you proliibited pelagic sealing- tomorrow, but killing was to
go on on the islands, your pelagic sealing rules would not be worth the
paper they were written upon for the preservation of the seal species,
am I to be told that you have only the right to prohibit pelagic sealing"?
But we believe it is a necessary condition also for the preservation ot
the seal life that there shall be a cessation for a definite period of kill-
ing upon the islands too.
It seems to me it would put this Tribunal into a most ludicrous and
false position to suggest that that argument is not perfectly and abso-
lutely sound.
If, then, I have illustrated — and 1 do not know any answer to it — a
case in which it would be idle for you to make regulations which would
be ineffective and useless for the object in view without annexing con-
ditions, then I say it follows that you have the authority to annex those
conditions, and that if you believe, honestly and impartially and decide
as every one of you will, I doubt not, fairly between the conflcting
interests which are concerned, arrive at the conclusion that as a condi-
tion of any restriction upon the rights of the nationals of any country
upon the high seas, there ought to be an accompanying restriction with
a view^ to the i)reservation of seal life by definite regulations upon the
islands, that you have a perfect right to say, "our regulations are con-
ditional upon the observance of such regulations upon the islands".
There is a further question which 1 think ought to be considered,
namely, as to whether or not it is in your power, and if in your power
Avhether in the exercises of your discretion you ought, to make your
rules permanent or temi^orary. I do not dispute that you have the
power to lay down rules, inflexible as the laws of the Medes and Per-
sians. I do not dispute that you have the powder to do so.
Senator Morgan. — Still, Sir Charles, you would say, I suppose, after
this award had been made that the two Governments could dispense
with them if they chose to do so by agreement. We are not estab-
lishing a principle of international law, as I understand it.
Sir Charles I^ussell. — No, Sir; I quite agree with you.
Senator Morgan. — It is bound to be temporary in the sense that the
two Governments, by agreement hereafter, could dispense entirely with
them.
Sir Charles Russell. — I have no doubt they could. Sir, but one
can conceive a case in which the United States might take one view
and in which Great Britain might take a different view. I quite admit.
Sir, what you say, that of course the parties to an agreement, can, by
mutual consent, put an end to the agreement.
Senator Morgan. — But still these two governments could not abolish
any principle of international law by themselves.
Sir Charles Kussell. — No; Except as between themselves cer-
tainly not. We are not now upon principles of international law". Ot
course you understand we are now upon the question of expediency.
Senator Morgan. — I si>oke of that as an illustration, that is all.
Sir Charles Russell. — Oh yes; 1 know. I think this point is not
unimportant. Sir. I think it is very important, from whatever point of
view it is looked at. I do not think this question of whether the regu-
lations ought to be tenqiorary oi' permanent is a question which can be
said to be in the interest of the United States more than in the interest
ORAL ARGUMENT OF SIR CHARLES RUSSELL, Q. C. M. P. 37
of Great Britain, or vice versa. It is a serious thing to interfere with
the unrestricted freedom of the nationals of any power upon the hiij,h
sea. The tribunal will therefore be very slow, unless they are clearly
convinced of the necessity of doing it, of putting such restrictions and
if they think such restrictions should be put, they will naturally be
anxious to make these restrictions as light and as little harassing to
the nationals of other powers and to the commerce, I may say, of the
world, as they possibly can. And therefore, either way, it is not a
matter which can be said to be exclusively in the interest of Great
Britain or exclusively in the interest of the United States. The rules
may be found to be too stringent, and therefore require relaxation.
They may be found to be too lax, and therefore require further strin-
gency. But the point I was first upon is whether it is open to you to
make temporary rules. If the Tribunal was clear about it, of course I
should not proceed to argue it; but I do not know what views my
learned friends take upon thei>oint; and therefore I must submit very
briefly the views which we entertain. You are to make regulations
for the proper protection and preservation of the fur seal in or habitu-
ally resorting to the Behring Sea and you are to say over what waters
such regulations shall extend; and ttnally, the only other part of the
treaty which bears upon the matter is the provision which is to be
found in Article XIV, that
The High Contracting parties engage to consider the resnlt of the proceedings of
theTribnnal of Arbitration as a full, perfect and tinal settlement of all the questions
referred to the Arbitrators.
Lord Hannen. — Will you allow me to ask you a question? Ton
have said that there is general ignorance at the present time on this
subject. How could we fix upon any number of years which would be
sufficient? It is not for the preservation of the seals for say ten years
but generally for that preservation. Would it not be better that we
should make regulations under which information would be collected,
and which might form the basis of negotiations hereafter between the
two countries for the modification of any rules we may lay down?
Sir Charles Eussell. — I have a note of, and intend to make. Lord
Hannen, that suggestion in connection with the question of regulations.
I have a note to that purpose. I quite agree that that would be a most
important thing; but I was for the mouient, if you will allow me,
dwelling upon the question whether there was power to make tempo-
rary regulations. I will say a word about the expediency of making
them in a moment. I was meeting the argument which might be based
upon Article XIV, although I do not know that my learned friends
would feel themselves interested one way or the other upon this ques-
tion. I would only say — it is a short and a small point — that although
article XIV contemplateR that the result of the arbitration is to be a
full and final settlement of the questions, it does not at all follow that
temi)orary regulations would not completely answer that purpose.
Regulations even to five, ten, or what ever period of years should be
adjudged to be proper, would not be the less a final ending of the
present dispute, because that final ending is arrived at by the adoption
of a set of rules temporary in their organization, and not permanent in
their character.
That is really all I have to say about it. As regards the explanation
of it I quite agree with what Lord Hannen says; but it occurs to me,
with great deference, to submit to the gentlemen of this Tribunal that
that very ignorance that prevails, upon which I propose to say only a
word or two, points in the direction which can hardly be doubted, of
38 ORAL ARGUMENT OF SIR CHARLES EUSSELL, Q. C. M. P.
extreme caution in the imposition of rules, in view of the lack of defi-
nite information, the result of which it is inii)ossible to ])redict, with
anything approaching certainty by any person applying himself to the
consideration of this question. What do we find here"? A number of
questions in debate of the most elementary kind about these far-seals.
One is struck by the reading of this voluminous literature with the fact
that although fur-sealing pelagically and on land, has been carried on —
pelagically certainly probably from the earliest time — on land also for
more than a hundred years — that absolutely until the year 1891-92 no
one appears to have had any knowledge whatever as to what was the
migratory route of the seals. It a])pears to have been the result of
the discovery of the Commissioners from both countries sent out for
that purpose, Avho have traced in a rougli way, but not marked out
with that precision and that accuracy, which if it were possible
at all, could only be arrived at by prolonged, anxious and repeated
observations, extending over a great number of years.
Take another question. We have a general idea of the period of ges-
tation of the female — that it is between 11 and 12 months. Where are
the figures; where are the instances'? Still less have we any accurate
account of the breeding life of the female.
Again as to the bull — either as to'the duration of his life or as to the
duration of his powers. None.
Again we have the fact which in another connection 1 must refer to,
of the extraordinary abstention from food for long periods of time. It
is admitted that that does take place — admitted by my learned friends
and by us; it is common ground between us. It is admitted that the
bulls do not feed from the moment of their arriving upon the breeding-
grounds in May or June, until their breeding functions on the rookeries
are at an end, when in July or August they leave the islands — an amaz-
ing fact, a fact which also occurs in the case of other wild animals, the
walrus, the sea otter and I think some other species of the seal. But
how about the females in nourishing tlieir young? Upon this point,
which is in connection with a zone as to regulations, a very important
one, there the most flat contradiction between the views taken by those
arguing for the United States or supporting their contention and the
views taken by those who are representing the views or supporting
the views of the Government of Great Britain. When does the female
seal first take food, if it takes it at all; at what period in the life of the
pup? When is the imp self-sustaining? All these are questions as to
Avhich absolutely the Tribunal is in a state of comparative ignorance.
Mr. Gram. — Will you allow me. Is there anything which shows that
the number of male seals born each year is the same as the number of
female seals?
Sir Charles Russell. — Yes, Sir. I will refer you to that. The
evidence is that they are born in equal numbers, male and female —
taking an average, of course, of years.
The President. — That is not contradicted on either side?
Sir Charles Russell. — No Sir. It is common ground between us.
Mr. Carter. — It is assumed rather than proved.
Mr. Phelps. — We suppose it to be true.
Sir Charles Russell. — My friend Mr. Carter argued the case on
that basis and assumed it; and we have both assumed it, and there is
no evidence to the contrary.
Sir Richard Webster. — The United States counsel take that view.
The President. — Perhaps counsel on both sides will explain for us
a point in natural history, whether notoriously polygamous animals are
alsiO born in equal proi)ortions, male and female?
ORAL ARGUMENT OF SIR CHARLES RUSSELL, Q. C. M. P. 39
Sir Charles Eussell. — Deer for instance.
The President. — And yet we know they are polygamous.
Sir Charles Russell. — In every instance, so far as we know. In
answer to Mr. Gram I refer to page 451 Case of the United States, in
which the report of their Commissioners is set out. On that page they
say:
If a herd of seals be takou iu its natural condition, that is as not interfered with
by man, males and females will be found practii-ally equal in number, as the number
of births in a year of both sexes is the same, and we have no reason to believe there
is any great dift'erence iu the natural mortality of the sexes.
Mr. Foster. — That is a hypothetical case, in which you state the
fact.
Sir Charles Eussell. — It stands thus: that so far as I know— I
do not of course speak myself as an authority at all — but so far as we
know of the case of animals which may be said in any degree to be
analogous, or indeed in any class of wild animals, the proportions of
males and females are equal.
The President. — And yet there are a certain number of animals
which are notoriously polygamous aiul consequently each male sup-
ports or defends a certain number of females collected around him.
Sir Charles Russell. — As for instance deer.
The President. — What becomes of the superfluous male?
Sir Charles Russell. — He is killed off, I suppose, just as the super-
fluous female is killed off. A certain proportion is observed. It is the
principle of natural selection, the principle of the survival of the fittest.
The President. — That may be by natural means, or artificially. I
merely point out that question as one that may be of interest.
Sir Charles Russell. — I am afraid that I perhaps did not convey
my views clearly in relation to that.
I admitted that if you have got a race of animals naturally wild and
can tame them, so that you can substitute for the rude rules, if you
please, of nature, a principle of artificial selection of the best looking
females and the best looking males, and so improve the breed, and by
observation, artificially conducted, ascertain what the relative breeding
capacities of male and female are, then you may in the case those ani-
mals improve the breed then alter the relation of numbers; but in state
of nature you cannot interfere with those rules of nature unless you are
prepared to introduce an artificial system by which you can work out
the results on a certain basis.
But apart from the question of improving the species, which is
another question from that of preserving it, the question is whether in
the case of polygamous animals man disturbs the order of nature when
he brings about the destruction of superfluous males by his own means
instead of leaving it to the animals to fight it out.
Lord Hannen. — But then he adds his destruction to that of nature.
Sir Charles Russell. — I am afraid, Lord Hannen, that I inter-
rupted you.
Lord Hannen. — It is i^ast now. I was only going to express the
same idea which you expressed.
(Tlie Tribunal here adjourned for a short time.)
Sir Charles Russell. — I have still a few words to say. Sir, upon
the question of the general application of the character of the Regu-
lations before I come to any definite suggestion. And I was upon the
question whether there was authority in the Tribunal to make tem-
porary Regulations as to which I submitted tliere was, and I was then
considering the question of the exijedieucy of exercising the authority
40 ORAL ARGUMENT OF SIR CHARLES RUSSELL, Q. C. M. P.
SO to make tliem. I have not tlie book here, but 1 have sent for it, and
if it is not, as it probably is, in the library of the learned President, I
would ask him to peruse upon the subject of natural selection and on
the doctrine of the survival of the fittest, a book with which 1 have no
doubt he is generally familiar — I mean Darwin, and he supplies from
actual observation as well as from argument an admirable answer, if I
may respectfully say so, to thedoul)ts which the learned President was
suggesting. 1 am told that the book has arrived, but I have not had
the oi)portunity of refreshing my recollection with reference to the
passages by to it, so I will not stop, but will leave it to my learned
friend if he should think fit to refer to it.
Then there are other matters also to be taken into consideration,
besides the absence of anything like accurate information upon some
of the important conditions of seal life, pointing, as 1 submit, in the
direction of temporary rather than permanent Eegulations, and, fairly
considered, this is not an argument that would not be equally to the
interests of the United States for the reason I have already mentioned.
Further consideration in a possible change of circumstances which is
not at all an unlikely thing to happen may become necessary. Fashions
may change. In the case there are mentioned the elaborate efforts
which are ingenious and cost money, which the representatives of the
lessees made in order to create a fashion in seal skins, and I do not
know whether I have mentioned it before, but it is a fact stated to be
historically true, that when the Hudson's Bay Company were anxious to
get their furs into popularity in London — I am not sure that I have not
mentioned this before — they invited the co-operation of a celebrated
dandy of that day — no less a person than Beau Brummell, and Beau
Brummell was induced to accept the gift of a coat made of the skins
of martens, and he was able to induce his friend, the Prince Eegejit to
do the same thing, with the result that the particular skins in question
became very jiopular. We know the shifting of these fashions. Take
the case again of the beaver hat. It was once supposed to be a necessity
of civilization, but who wears a beaver hat now ? Why do not Miey wear
them "? Because they have an artificial substitute, so that one cannot
predicate with any kind of certainty what the circumstances may be
at any future time. Or again, the fact that the seal may leave the
place, because of some change of food supply in the broader ocean —
which may drive them closer to land and might interfere with some of
the great industries carried on in the United States as well as British
Columbia.
My learned friend, Mr. Eobinson, was perfectly right, that if there were
ten thousand Regulations forbidding the destruction of the fur-seals,
if they were found to conflict with any of those industries, the fur-seal
is inevitably doomed to go. All these considerations, as it seems to
me, point to the expediency of making not permanent hard and fast
rules which purport to operate forever but to the making of regulations
which would exist for a time sufficiently long to allow experience to be
matured, so that the future consideration of the problem, if it still
exists to be considered, should be approached in the light of fuller and
ampler and more detailed information than can now be presented to
this Tribunal, ft might possibly be suggested as an alternative that
while you make your liegulations apparently perpetual in their char-
acter, there might be reserved to either of the Powers to denounce the
Regulations after the expiry of a definite number of years, the effect
of which would be to remit the parties respectively to their original
position and therefore their original rights, whatever those rights were,
ORAL ARGUME^^T OF SIR CHARLES RUSSELL, Q. C. M. P. 41
■with the certainty that they wonhl aiiproach the consideration of the
position in which they then stood in the light of taller and more accu-
rate and a jnster appreciation of what the relevant facts are. I pass
from that general consideration. Tlie Tribunal will recollect that in
the correspondence previous to the Treaty and after indeed it had been
to a large extent reduced to the form which it ultimately took, that
Lord Salisbury desired to introduce a stipulation that the rules of the
Tribunal should be conditional upon the concurrence of other Powers,
and you will recollect also that the United States objected to that sug-
gestion and would not concede it, that Lord Salisbury did not insist
upon it as a condition of the Treaty, but reserved to himself the right
to represent the matter to tiie Tribunal. Now I wish to be distinct in
reference to that matter. I am not here at all asserting that the con-
currence of other Powers ought to be a condithm of the application of
your Pegulations. I have only to say in that connexion, however,
this, which I hope will be considered a just and i)rudent observation,
namely, that the Kegiilations ought to be of a character which will not
refjel, but which will rather invite the assent and cooperation of other
Powers.
Let me remind you, Mr. President, that the Treaty has an express
stipulation upon this point. It is the concluding sentence of Article
VII.
The Higli Contracting Parties furthermore agree to co-operate in securing the
adhesion of other Powers to such Regulations.
I think you have followed the position I take. I do not suggest that
the concurrence ought to be a condition precedent to your Eegulations
or to the enforcement of your Kegalations, but I do suggest the regu-
lations themselves ought to be such as will probably, from their
reasonableness, secure tihe assent and co-operation of other j)owers.
I will not dwell upon the point further beyond saying that, of course,
it is obvious that if you make a set of Regulations of a character which
would give a monopoly to the United States and exclude the nationals
of Great Britain from any share in the pursuit of the fur-seal that you
would be doing the very thing which not only would not invite the coop-
eration of other Powers, but which would suggest to the nationals of
other Powers whether, this being a fair tield for adventure and enter-
prise, they may not embark in it, and so the Executive Authority of
those particular nationals would have an interest not to co-operate,
but an interest to dissent from the observance of these rules.
I do not need again, of course, to point out that the rules which are
made within the limits of their authority by this Tribunal are rules to
which the Government of the United States and Great Britain must
pay honest, bofia fide deference and respect, and must seek to have
effect given to them by legislation, which is a necessary means of giving
effect to them; but and when all that is done, when^your Regulations
are framed, and when legislation in the respective countries has been
accomplished for the purjiose of giving eft'ect to them, neither your rules
nor the legislation of the United States or of Great Britain affects any
other Power in the world, or tlie nationals of any other Power in the
world. If they are reasonable Regulations, if tliey are Regulations
which, in the circumstances of the case, commend themselves to the
good sense and S])irit of equity of other Powers, they will concur in
them, and will co-operate in giving effect to them; otherwise not.
42 ORAL ARGUMENT OF SIR CHARLES RUfiSELL, Q. C. M. P.
Of course, the great argument of force might be replied to me in tliis
connection. It might be said, and with a great show of reason, that,
if Great Britain and the United States were standing side by side in a
dispute of this kind, it would be very difficult for any other Power to
resist or gainsay their will in this particular matter. Quite true; so it
would, as a matter of force, but as a matter of reason (which is the
domain to which I am now addressing myself), it is obviously a part, if
I may respectfully so i^ut it, of the duty of the Tribunal to frame Eegu-
lations which shall be reasonable in themselves and which shall recom-
mend themselves for acceptance by other Powers.
I need not say that it is the a/jp/ta and omega of my argument that
there is no right to exclude the nationals of other Powers from pelagic
sealing; that it is the right which I have been claiming not for Great
Britain or the nationals of Great Britain, or the nationals of the United
States, but for mankind, without any exception, of any Power, great
or small.
Lastly, and this is a very general observation, a general condition
touched upon early in my observations, that the Eegulations must be
marked, putting it respectfully, with a spirit of fair adjustment of
rights which expediency suggests in the circumstances of the case;
and, for the preservation of the fur-seal species, should be subject to
certain limitations and restrictions.
Now, Sir, I have said all that I desire to say on the subject of general
considerations, in the light of which the question of Regulations is to
be approached.
Now for a few moments I will ask the Tribunal to turn to the British
Commissioners' report. I am not going to dwell at any very great
length upon this report, but I think so far as I shall have of course to
criticise the suggestion of the American Commissioners, and particu-
larly the suggested scheme if scheme it can be called, put forward
yesterday evening. I wish first of all to see how the matter has been
dealt with and approached by the British Commissioners. First let
me make this clear, that these Commissioners, in the suggestion that
they are making are dealing with a scheme which shall be general in
its application. They are not dealing with a scheme under the treaty
or with reference to the treaty. They are asked to report upon the
condition of seal life in and in connection with the Pribilof Islands.
They are asked to report upon the cause of the injury which that seal
life is said to be suflering from, and they are asked to suggest what are
the steps which in their judgment ought to be taken to remedy the
state of things supposed to exist.
Senator Morgan. — All that was done. Sir Charles, if I remember
rightly before the treaty really was signed.
Sir Charles Eussell. — Quite true, Sir, but no doubt in view of it.
Senator Morgan. — Of course.
Sir Charles Eussell. — Quite so and what I want to guard against
is this, that you *find they make suggestions which would have no
application outside Behring Sea, for instance they will be found to have
made suggestions, and important suggestions, with regard to the Prib-
ilof Islands. I mention those subjects to show they had not the treaty
before them upon which they were placing any particular construction
and dealing with regulations pointed distinctly to the provisions of that
treay, but they are dealing with the matter upon the supposition — and
not an unnatural one as I conceive — that the United States w^ould have
been willing to concur with Great Britain in submitting the whole area
on and off the Islands to Eules or at least the consideration of Eules
ORAL ARGUMENT OF SIR CHARLES RUSSELL, Q. C. M. P. 43
wliicli should be, as far as was necessary, applicable both to the
Ishmds and the sea.
Now their report begins substantially at page 6 where they deal with
the general conditions of seal life and on page 7 under the head b. killing
on the breeding Islands; they deal with the state of things which they
have found and they euter into a historical review, at the bottom of
page 7 and on page 8, as to the measure of slaughter during the Rus-
sian, and during the period of the United States, control. I have
already given the figures and I do not stop to refer to them, but I
may observe in passing as regards killing upon the Islands which is
claimed as being discriminating, there is this to be said about it, it can-
not escape from this charge — I am not now going back upon the consid-
eration of whether it can be truly called discriminating — that I have
already dealt with as far as I propose to deal with it — but there is this
charge to be made against it and from which it cannot escape, namely,
that it is a killing carried on at the time at which in the case of rules
for the preservation of other wild animals those rules exempt those
wild animals from all interference, namely, during the breeding season.
That is the peculiarity of this beautiful system pursued upon the
Islands, namely, that at the very period when the race is engaged in
the work of reproduction, that is the very time at which the scientific
killing, which is open to no objection whatever, takes place upon the
islands, a system which in those conditions the British Commissioners,
I suppose in order to show how jjartizan and unfair they were, describe
as a system " transcendentally perfect", whatever that means. But
there it is. The killing is carried on at the very x)eriod when the system
of law in all countries in the world, — municipal law I am talking ot^ —
leaves the principal race or races of wild animals or birds wholly unmo-
lested, namely the breeding season. That entails the consequences to
which Professor Elliott in part refers to, of which we have abundant
evidence scattered throughout the whole of the case, of the disturbance
of the harems, of the mixing up of the young and the old, the stampedes
of the old involving the death of the young, the driving and redriving
from their getting mixed up in the way described. But so it is.
The President. — Is it shown that the fur is of lesser quality during
the breeding period — that the hair falls ott', for instance?
Sir Charles Russell. — That is the '' stagey" time, undoubtedly.
What I call the breeding time is later. The evidence appears to stand
in this way. The females have practically all arrived by about the
middle of June, — between the middle and the end of June; the great
bulk of them, I think it may be said, by the middle of June.
They very early after their arrival produce their young. I think the
evidence points to the conclusion, in point of fact, they do not seek
voluntarily the land until the suggestion of nature comes to them; and
they are, very speedily after their arrival, delivered of their young
and then, after a comparatively short time, impregnation is supposed
to follow — within a very short time after the delivery of the young.
The stagey condition is at a later period, July and August, but what I
called the breeding-time, and it was in that sense I was using it, was
this — I was referring to the whole period from the time of the pup
being born, till the time when the pup may be said, in some sense, at
least, to be self-sustaining — that is to say, taking to the water on its
own account, which generally happens within six weeks to two mouths
after its birth.
The President — In fact, the killing goes on during the stagey time.
Sir Charles Russell — Yes to a slight amount.
44 ORAL ARGUMENT OF SIR CHARLES RUSSELL, Q. C. M. P.
Senator MorGtAn. — !N"ot of the animals engaged in reprodnction.
Sir Charles Russell. — JSTot as far as it can be avoided.
Senator Morgan. — But they are divided geographically from each
other by an instinct of nature.
Sir Charles Russell. — I assure You, Sir, I would not rely too
much u])on that, because the lines are not so very sharply drawn as all
that. There is a picture, if you turn to the diagram which faces page
22 of this report, which is a very expressive one, and I think, while, ol
course, it does not profess to be strictly accurate, it gives a very great
idea of it.
The President. — You mean the killing in June and July.
Sir Charles Russell. — Yes, the great killing is in the months oi
June and July. The earlier history, going back a good many years,
shows they used to get the killing all practically done, certainly, before
the end of July.
The President. — Before the stagey period.
Sir Charles Russell. — But undoubtedly of later years, from the
constant necessity of redriving, the period of killing has been extended,
but it is as substantially shown on page 22.
It is true, as Senator Morgan, said — 1 have not suggested anything
to the contrary. — that there are certain more or less clearly marked
lines of demarcation, if I may use that word, between the young kill-
able males and the others; but that is not very sharply defined, and
the evidence undoubtedly shows that a number get mixed up in the
herd, which have to be separated from the rest and diiven back. You
will remember that when I was dealing with the question of the alleged
incapacity of domesticity of the fur-seal, that I cited the case of a pup
called " Jimmie", which had been got hold of by a gentleman there, and
he described it as a pup which the cow had dropped while being driven.
So that they do get to a greater or less degree mixed up, although of
course the object is to prevent that mixing.
On page 10 of the Rei^ort, they dwell on the misproportion — the alter-
ation, I will say, of the proportion of males and females — very much as
Professor Elliott does, and citing Professor Elliott — they dwell upon the
large and increasing number of barren females; and in paragraph 50
of that Report, they mention that percentage of driving back, which
shows the condition to which the race had then ueen reduced. They
say in relation to these drives, the last sentence in this paragraph:
The proportion thus turned away, according to the report of the special Treasury
Agent in 1890, actually rose to ninety per cent of the whole number driven.
Now, it is a plain matter of arithmetic, if you drive 100 and only kill
10 of that hundred, that the other 90 are doomed to be driven and
re-driven; and nobodj- can tell exactly how often, but at all events
several times, before they meet their ultimate fate.
Then at page 11, they proceed to deal with the sealing at sea. They
note the fact — in a marginal note, and it is not necessary, I think, for
my purpose, to read the paragraph — that pelagic sealing is a further
draft upon seal life. They give its history and development, beginning
with independent native hunting, its growth, and then they mention
the fact, which is not unimportant in connection with what has been
said about 1884 and the marked decrease that was seen in 1884, that
the first vessei which entered Behring Sea for the purpose of sealing
was the " Mary Ellen", in 1884. That, I think, was an American vessel.
I should have said that was the first of the Columbian -vessels. Then
they deal with the decrease observed on the Pribilof Islands, and the
measures practiced to obtain a quota; and in paragraph 72 there is a
ORAL ARGUMENT OF SIR CHARLES EUSSELL, Q. C. M. P. 45
convenient reference to what I had intended to refer to except that I
did not desire to be longer than I could avoid, as showing the straits
to which they had then come, namely, that there Avas no curtailment in
the number killed. They kept up the 100,0U0. They say :
72. No such curtailment, however, occurred. The Company holding the lease of
these islands on fixed terms were not interfered with, but continued to take tlieir
full legal quota of skins without regard to the risk to seal life as a whole. Not only
so, but instead of rediicing the catch, the standard of weight of skins taken on the
islands was steadily lowered so as to include a younger class of seals under the des-
ignation of " kiilables". Instead of skins weighiug 7 or 8 lbs., those of 5 lbs. and
(as we have ascertained on excellent authority) even of 4 lbs. and of 3^ lbs. have
been taken and Avere accepted by the Company as early as 1889.
The further evidence that has since been obtained shows that the
standard of weight was lowered at a considerably earlier i^eriod; and
of course we say upon that that if the interest of the lessees had been
tlie i^reservation of the fur-seal species and not to make a profit for
themselves as against the rent which they had to pay the United States,
and if it had been a question of regarding the interests of the race, that
ought to have been a very clear and distinct warning which would have
suggested that which Kussian wisdom again and again suggested, as I
have shown from the iigures of killing during the Russian control,
namely, periods of comparative rest; because it is a very startling and
remarkable fact that whereas over the whole Russian period the aver-
age was considerably less^I Avill not pledge myself to the exact figure —
than forty thousand a year, the average from 1S(J7 down to 1889 works
out somewhere very close to the point of one hundred tliousand. And
indeed if you -take the exceptional slaughter, as I admit it to be, of
L*40,000 in 18G8, the full one hundred thousand would be in fact, I think,
maintained.
They then at the bottom of that page, in paragraph 74, sunnnarize
the causes of waste of seal life in the methods actually i)racticed upon
the Pribilof Islands. 1 will not read them. And then they proceed to
consider the allegations against pelagic sealing. We will see Avhether
they deal with this matter fairly or not. They say in paragraph 77 on
page 13 :
77. Against the methods of pelagic sealing two principal lines of criticism and ot
attack have been developed, and both have l)een so persistently urged in various
ways, that they appear to have acliieved a degree of recognition by the uninformed
altogether unwarranted by the facts, in so fav as we have been able to ascertain
them, tlujugh in both there is an underlying measure of truth. It is stated (1) that
almost the entire pelagic catch consists of females; (2) that a very large proportion
of the seals actually killed at sea are lost.
They then proceed :
78. It is undoubtedly true that a considerable proportion of the seals taken at sea
are females, as all seals of suitable size are killed without discrimination of sex.
This is, in part, however, a direct corollary of the extent and methods of killing upflto
the breeding islands, where, practicallj', in late years, all uuiks reaching the shore
have been legally killable, and where, as a matter of fact, nearly all the young
males which land have been persistently killed for some years, with the necessary
result of leaving fewer killable males in jiroportion to females to be taken at sea.
79. The precise bearings on the industry as a whole of the character and composi-
tion of the pelagic catch made along various parts of the coast and in Behriug Sea
are discussed at greater length elsewhere (^ 633 et seq.), but it may be here noted
that the great siirplus of I'emales, resulting i'rom the ijractice just alluded to, has
certainly rendered the killing of considerable numbers of these at sea less harmful
in its effect than it might otherwise have been.
"Less harmful than otherwise would have been" I may say means:
not only that it tended to restoie the balan(;e but also that a consider-
able number of the females so killed were barren females. They then
46 ORAL ARGUMENT OF SIR CHARLES RUSSELL, Q. C. M. P.
proceed. My learned friend Mr. Robinson, I think, entered upon this
yesterday, but I shoukl like to read this passage:
80. To assume that the killing of auimals of the female sex is in itself reprehensi-
ble or inhuman, is to make an assumption affecting all cases where animals are pre-
served or domesticated by man. Most civilized nations, in accordance with the
dictates of humanity as well as those of self-interest, make legislative provision for
the protection of wild animals during the necessary periods of bringing forth and of
rearing their young; but the killing of females is nuiversally recognized as permis-
sible if only to preserve the normal proportion of the sexes. This is the case in all
instances of game preservation and stock raising, and iu the particular example of
the fur-seal, it is numerically demonstrable that, in maintaining a constant total of
seals, a certain proportion of females should be annually available for killing. The
killing of gravid females must, however, be deprecated as specifically injurious, and
in any measures proposed for the regulation of seal hunting should receive sjiecial
attention.
Then they proceed to deal with the allegation of the percentage of
seals lost at sea; and in paragraph 82 — I read this yesterday and I
therefore will merely summarize wliat they say upon it — that the state-
ments are very vagae; that the statistics or figures given are liopelessly
confused; and confused in this way, that the number of seals fired at
is confounded with the number killed, and in other cases it is often
estimated that the number of rounds of ammunition disposed of repre-
sents the total number of seals that are actually killed.
I uuike one observation in that connection. I think one cannot but
be struck in this matter that while they were endeavoring to show, and
succeeded in showing, that a great many seals fired at were not cap-
tured, they do not show that the seals so fired at were either killed or
seriously wounded. In other words in a great many instances, they do
not show that they were hit at all. I have been struck also with this
fact it is true that the specific gravity of the seal taken as an animal, is
greater than the specific gravity of the water, and therefore that the seal
will sink; but I notice that some of the witnesses point out a curious
fact worth noticing in passing, that when the seal is hit iu the head,
which is where it ought to be hit by scientific marksmen, the effect is
that its head goes down first in the water, and in that way the air which
is already in its respiratory organs is preserved and so there is a certain
buoyancy given to it and it will float for a short space of time.
I see no reason to doubt that scientifically at all; but that is not the
point I was going to make allusion to. Where there is no such air in
the respiratory organs to afford buoyancy to the seal, it will sink if its
specific gravity is greater than that of the water. That may be con-
ceded; but after a certain time, as we all know, the i)rocess of decom-
position goes on, which thus occasions a fresh principle of buoyancy in
the dead animal, just as it is in the case of a human bodj^ In the case
of a person who has suffered death from drowning the body sinks, dis-
appears; but after the lapse of a certain time the body again floats,
^hen that process of decomposition has gone on, and in that way the
principle of buoyancy is illustrated. So with much inferior snbjects.
Dead cats and dead dogs, as we know, sink in the first instance, but
come to the surface again. So it onght to be, and so it must be. There
is no natural reason in the world why it should not be in the case of
the seals. The process of decomposition, of course, is slower where the
water is colder; but it goes on in the summer months. If this allega-
tion of this tremendous loss of life by killing and not securing seals
were true, one would expect to have some account of the presence of
large numbers of floating dead seals over the surface of the water. I
do not find there is any substantial evidence pointing in that direction
at all; and I cannot therefore but think that the evidence on this point
as to loss in that way is considerably exaggerated.
OKAL ARGUMENT OF SIR CHARLES RUSSELL, Q. C. M. P. 47
Another matter that they point to which again is not nniniportant,
is that whereas there is a consensns of opinion aud evidence about the
more or less depleted condition of the islands, there is not the same
consensus of opinion as to the lesser number of seals to be found at
sea; which is rather a significant fact. It is common ground that the
numbers on the islands have diminished from their normal condition;
that there has been a marked decrease, and a marked decrease of par-
ticular kinds as to sex and as to age; but there does not seem to be
the same marked decrease in the number of seals perceived at sea; and
tlie Commissioners, not unfairly, as I suggest to the Tribunal, say that
that is one of the results of the system pursued upon the islands, that
these seals driven and redriven, as they have been, make their escape
to the sea, and do not return to the land. Except for the purpose of
breeding they do not require to return to the laud. I say that espe-
cially for the benefit of Senator Morgan because he thinks it is a neces-
sity of their nature that they sliould return to the island to get their
coat changed. I do not admit that that has been established as a sci-
entific fact at all.
Senator Morg-an. — Sir Charles, in that connection, it has occurred
to me that there must be some definite way by which these experts,
or so called experts, can determine the age of a seal, and that relates
somewhat to the color of its coat; for instance that two-year-olds are
not of the same color as four-year-olds. They probably get at their
results by observing the change in the color of the seals, and in the
characteristics of its coat.
Sir Charles Eussell. — I will tell you, without pledging myself to
be literally accurate, how that matter is upon the evidence. (Address-
ing the President) The Senator was asking me as to the evidence. Sir,
remarking with reference to the alteration of the i)elage, the age of
particular seals. The evidence, as I understand it, is in this iDosition.
When the pup is born, it is nearly black.
Senator Morgan, — And has no fur.
Sir Charles Kussell. — Or if so, very little. The impression is that
it has some downy fur ; but that may not be. It is nearly black. When
it gets older it becomes gray. Then when it gets into the yearling and
two-year-old and three-year-old class — I do not affirm positively — but
I am not aware that any distinction is pointed in the color of the coat
from two to three, four or five years of age; but when they get to an
advanced age, there are undoubtedly marked differences, and in the
case of males, one great difference is a hirsute appendage that it has,
its whiskers, etc. I will not commit myself positively to what I have
said, but I think, broadly speaking, that is about approximately cor-
rect. So far as the female is concerned, there is of course a difference
in size between a female of two years and a female of five or six years,
etc.; but I do not recall that there is any evidence of a difference in
the color of pelage between the female of two years old and a female of
greater age.
Senator Morgan. — I think Mr. Elliott, in his capacity as an artist,
has drawn those descriptions pretty vividly.
Sir Charles Russell. — In which. Sir; 1874 or 1890?
Senator Morgan. Between the ages of 3, 3, 4, and 5. I merely wanted
to call attention to it.
Sir Charles Russell. — We will see, Sir, if there is any more evi-
dence bearing upon it.
Senator Morgan. — Then there is a period when they, like the Queen's
Counsel, begin to wear Avigs?
48 ORAL ARGUMENT OF SIR CHARLES RUSSELL, q. C. M. P.
Sir Charles Eussell, — Oh yes; the Queen's Counsel wear wigs ;
and sometimes people who are not counsel at all wear them. But that
is not a case in point.
On page 17, Sir, they devote themselves — my friend Mr. Carter thinks
]nost impertinently — to the consideration of the interests involved.
Well, I respectfully think it very important. In paragraph 102, deal-
ing with the interests on shore and the interests at sea, they say that
the only basis of settlement wbieb is likely to be satisfactory and permanent is that
of mutnal concession, by means of reciprocal and e(|iuvaleiit curtailments of right,
in so far as may be necessary for the preservation of the fnr-seal.
And they go on to say that
the line of division between the shore and ocean interests is not an international
one.
That I have already dealt with, because I have shown by the figures
which I cited in answer to the question of the learned President the
other day, that up to a certain point, and in certain years, the number
of United States sealers exceeded those of Canada, although in the later
years the Canadian vessels had exceeded the other. Then in dealing
with the question of capital involved, they say, paragraph 105:
105. At tlie present time the actual value of the buildings, plant, and equipment
of the North American Commercial Couijiauy, on the Islands of St. Paul and St.
George, is estimated not to exceed 130,000 "dollars (20,000 1.). Adding to this a
further sum to cover other items of capital less directly connected with the islands
themselves, the entire invested capital would probably be over-stated at 200,000
dollars (40,000 1.) ; and it is not to be forgotten that the Companies leasing the seal
islands liabitually do a profitable retail trade in supplies, etc., with the natives and
others in addition to acquiring the seal-skins.
Then turning to the Canadian interest:
106. The estimated aggregate value of the British Columbian vessels employed in
sealing, with their equipment, as they sailed in 1891, was 359,000 dollars (72,000 1.).
It has been asserted that only a portion of this total, corresponding with the length
of the period in each year in which these vessels are actually engaged in sealiug,
should be taken as the capital invested. This statement is, however, as a matter of
fact, incorrect. The sealing- vessels are seldom used in or fitted for other em])loy-
ment, and nearly all of them remain laid up in harbour between the dates of the
closing and opening of the sealing season — that is, between October and January,
or February.
107. Adding to the above amount an estimate of the value of the United States
sealing fleet in tbe same year, which, it has been ascertained, exceeds 250,000 dollars
(50,0001.), and may probably amount to 300,000 dollars (60,0001.), an aggregate
amount of capital of about 6.50,000 dollars (130,000 1.) is represented by the combined
fleets.
The President. — Do those two paragraphs mean that there are
si)ecial boats built for the sealing at sea"?
Sir Charles Eussell. — Yes.
The President. — A s])ecial description of boats which would be
unfit for any other fishing?
Sir Charles Eussell. — Yes, Sir; that is what it means. I do not
think it would be correct to say they could not possibly be applied to
some other purpose if this was i)rohibited; but they are built with that
object, that design.
The President. — Perhaps you mean the small fishing boats that are
let down from the schooners themselves?
Sir Charles Eussell. — Oh no; it means the schooners.
The President. — The schooners themselves are specially built?
Sir Charles Eussell. — They are fishing schoonors — I used the
word boat, but not in the small sense — fishing schooners, specially
adaptable for this ])articular purpose, as 1 understand, but not unfitted
for other kinds of fishing, or to be used in other kinds of commerce.
ORAL ARGUMENT OF SIR CHARLES RUSSELL, Q. C. M. P. 49
Lord Hannen. — I suppose as in the case of fisliing vessels of con-
siderable size, they are fitted for fishing, and though they could be
converted, it would be a considerable expense to convert them to other
purposes?
Sir Charles Eussell. — No doubt that is so.
Senator Morgan. — All these fishing schooners carry from five to
fifteen small boats, armed with men. The evidence is that the boats
go out and d(» the sealing.
Sir Charles Russell. — Oh, no doubt. They do not shoot at the
seals from the schooner really.
Senator Morgan. — Kot at all.
Sir Charles Russell. — The real sealing is done by the boats that
are sent out from the side of the schooner. That is quite true. I
may state the information which Mr. Tupper gives me, which I have
no doubt is correct. Tlie great majority of these schooners, probably
not all of them, are boats that come from the Atlantic side of America,
and that have been principally used for fishing on that side. They are
brought around to the west coast of America. There is, of course, a
great field for fishing on the west coast, but like a great n^any other
places where there are valuable products of that kind, the communica-
tion is so defective that if they caught fish, as there is no doubt they
could, there is no means of readily utilizing them to any extent; so that
the mere pursuit of the fishing industry, in the ordinary sense, of that
word, is not pro iit able.
The President. — There is no cod-fishing organized on the north-
western coast as yet"?
Mr. Tupper. — So far as the Canadian portion is concerned, the deep
sea fishing is not yet really developed.
Sir Charles Russell. — What I have said applies to a great many
of these schooners, not all of them, as Mr. Tupper has said. You are
aware, Sir, that railway enterprise may, in a few years change the
whole aspect of things there. The Canadian Pacific, which traverses
the whole of that continent at that point and has its terminus at Van-
couver, may in time with the further development of railway enter-
prise, make a very great change; and so regards Washington Territory.
The President. — You mian for the building of schooners'?
Sir Charles Russell. — ISTo; I was talking about the development
of fishing in the ordinary sense.
The President. — That is so as to allow these boats to be applied for
other fishing besides sealing?
Sir Charles Russell. — At some future time perhaps. They prob-
ably will not be fit when that time comes.
The President. — Our regulations must be framed before that time.
Senator Morgan. — The difficulty about fishing in Behring Sea is
that they have no sun-shine to cure the fish, and it is too far away from
the market to permit of the fish being transported to the market.
Sir Charles Russell. — That is, no doubt, the fact. I am not speak-
ing from my own knowledge at all, but from what others say; — the
difficulty is not really insuperable at all as regards the sun, because
they can preserve the fish, if there were a market for it, — (that is the
real difficulty) — quite sufficiently without any sun to dry it, if they
have the salt.
The President. — I suppose that is the real reason, — that there is no
market"?
Sir Charles Russell.— That is the real reason.
B S, PT XIV 4
50 ORAL ARGUMENT OF SIR CHARLES RUSSELL, Q. C. M. P.
The President. — Of course, a great deal of the fish on the North-
west Coast goes to support this enormous family of seals.
Sir Charles Kussell. — Of course; and as I understand on Wash-
ington territory, Columbian territory and in Alaska from the North
there is great promise from the great salmon rivers.
On page 19, the Commissioners discuss the "principles involved" in
the paragraph so headed. They j)oint out the necessity for protection
both on shore and at sea. They point out, in paragraph 118 which
excited my friend Mr. Carter's wrath, I think, the less danger at sea.
They say:
lu sealing at sea the conditions are categorically different, for it is evident that
by reason of the very method of hunting the profits must decrease, other things heing
equal, in a ratio much greater than that of any decrease in the number of sealis, aii(L
that there is therefore inherent an automatic principle of regulation sufticieut to
prevent the possible destruction of the industry if practised only at sea.
And, finally, they refer to some other reasons. In paragraph 111),
they say :
It Is, therefore, abundantly evident, if we judge by actual experience —
(that is historically true, I submit)
control of seal life beginning and ending with protection at sea, either partial or
absolute, can do no more than palliate, and certainly cannot materially lessen, the
danger to seal life as a whole, unless such control be devised and adopted in close
co-operation with agreed-upon equivalent measures on the breeding islands.
The President. — I suppose that is one of the points upon which
the American Commissioners differed and dissented from the British
Commissioners.
Sir Charles Russell. — I have no doubt they would have differed.
The President. — They have not stated it.
Sir Charles Russell. — They have not gone into it at all. I say
that that is historically true, because we do know that pelagic sealiug,
by itself, has never seriously threatened seal life in any quarter of the
globe.
We know, on the other hand, that uncontrolled, or, as Senator Mor-
gan preferred to call it, "indiscriminate slaughter" on land, has been
the cause; and if it be answered by the United States, as it may be
answered, that they are wise men who will not kill the goose that lays
the golden egg — that self-interest will suggest their doing the proper
thing on the island — our answer is that their self-interest was as great
20 years ago — 10 years ago, as it is to-day, and yet — in face of that we
have this — if you accept the report of Professor Elliott which I have
endeavored to justify, without going into the details upon it — (it will be
gone into in fully hereafter) — that they have pursued upon the island
the most pernicious and most destructive system indicting a very
grievous injury upon the seal life, from which it may be long before it
ultimately and completely recovers. Therefore we have no such pro-
tection merely resting upon their motives of self-interest; they must
continue, whatever their own personal desires may be, to vary that
course of dealing if they would make it a source of revenue to a great
and prosperous community. I believe it is supposed that they have so
much money in their treasury as to know not quite what to do with it,
but if they continue to let the Islands to the sealers those lessees will
pursue their own personal ends, looking to the limited interest they
have got in the subject matter, however stringent Regulations may be
devised for their control.
Now on page 21 the British Commissioners mention a fact which will
become important, which I mention now in j)assing. It is paragraph
OEAL ARGUMENT OF SIR CHARLES RUSSELL, Q. C. M. P. 51
132. In tlie second sentence in that they are still dealing- with Pribilof
sealing and they say:
In pelagic sealing, tlio weather is usnally snch as to iudnce a few vessels to go ont
in January, but the catohes 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
80 iincertain and rough as to practically close the season.
I think that is the nearest approximation to a precise statement as
to date. As a matter of fact it may be taken — I do not think this will
be seriously at all disputed — that as far as pelagic sealing is concerned,
the weather makes it impossible to carry it on after the early part of
September in Behring Sea. It is a pursuit wliich needs calm weather
for its successful operations, and after the early part of September it is
practically at an end.
The President. — Do those indications relate to the first months of
the year — do they relate only to the Beliiing Sea or to tlie Pacific?
Sir Charles Eussell. — Those earlier ones relate to the Pacific.
The President. — I should think so the months being February,
March and April.
Sir Charles Eussell. — Those are all south of the Aleutians.
The President. — They go later into Behring Sea, I am told.
Sir Charles Eussell. — They go later into Behring Sea.
Mr. Justice Harlan.— They commence to go into Behring Sea some-
time in early April.
Sir Charles Eussell. — I think there may be certainly a few such
cases.
Mr. Carter. — Bo you mean the seals, or the sealers?
Sir Charles Eussell. — The sealers I am speaking of.
Mr. Carter. — They are there in July.
Sir Charles Eussell. — No; they are earlier than that.
Sir EiCHARD Webster. — There is abundant evidence of their being
earlier than that, in the United States books.
Sir Charles Eussell. — I do not quite follow this.
The President. — The sealers, 1 was referring to.
Sir Charles Eussell. — The sealers go into the Behring Sea, some
of them, as Mr. Justice Harlan pointed out, in April; but some of them
in May.
Mr. Justice Harlan. — I meant the seals; they turn northward and
commence to enter Behring Sea in April.
Sir Charles Eussell. — That, Sir, is quite true.
Now, on the next page, these i^artizan and unfair Commissioners
having stated those circnmstances of those earlier months, just let me
point out the clear and emphatic way in which, (where they think them-
selves warranted), they express themselves about the effect of the
jpelagic catch in the early Spring.
On the top of page 22, there is a paragraph bearing on the point which
Senator Morgan was good enough to mention a few minutes ago; it is
in conformity with the evidence wliich will be referred to in detail.
They say in paragraph 134.
With seals killed at sea, the skins are never found to be in a "stagey" condition,
as has been ascertained by inquiries, specially nuide on this point, and there is, there-
fore, no naturally definite close to the time of profitable killing, snch as occurs on
the islands. The markedly "stagey" character of the skins at a particular season
appears to be confined to those seals which have remained for a considerable time on
the land.
52 ORAL ARGUMENT OF SIR CHARLES RUSSELL, Q. C. M. P.
I am remiiided by my learued friend that there are some instances,
(but I think so very few as to make the exception to the rule), of some
damaged skins being taken at sea.
The President. — That woukl confirm the observation of Senator
Morgan.
Sir Charles Russell. — I shouhl have thought, with great defer-
ence, it was the other way, — that if it be the fact that it is only a very
rare exception to find a "stagey" skin on a seal taken at sea, it would
seem to me to point in the opposite direction.
The President. — That shows that they nuist go on land, as you say,
to shed their hair when they are in a " stagey" period.
Lord Hannen. — What is meant by a "stagey" condition*? Is it
merely shedding their hair, or is it not something like an ailment of the
skin?
Senator Morgan. — Thinness is the cause of their shedding their
hair.
Sir Charles Russell. — I really do not speak with confidence about
it, but I have understood it is very much like the case of another ani-
mal which I understand much better than the seal, — the horse, — it is
like the shedding of the coat, only in a more aggravated character;
namely, the disappearance of the older hair and the older fur, and the
formation of a younger undergrowth.
The President. — With all hairy animals, that is the case.
Sir Charles Russell. — But of a more aggravated and strongly
marked character.
The President. — But can that go on in the water? It seems no,
according to this.
Sir Charles Russell. — With great deference, not so. I tried to
explain this the other day — it is surrounded in mystery. It is one of
the many points in connexion with the seals that we do not know a great
deal about. I endeavoured to explain it the other day by saying this:
in accordance with what we know of most animals, some process like
stageyness or shifting of the coat occurs with all these animals that are
fur-bearing.
The President. — That is general observation.
Sir Charles Russell. — That is so; but my suggestion was (and
probably it will be found to be the correct one) that in the case of seals
which do not go on land, that the change of process is more gradual,
so as to be less observable — that it takes place in the water more grad-
ually so as not to be so observable. When I say "gradual", it is with
great deiereiice to what Senator Morgan said — that there is not any
evidence to warrant the conclusion — I mean to satisfy one's mind to a
fair conclusion that it is a necessary condition of the existence of the
animal, that they all go on land; and, exempli gratia, when I say it is
conclusively proved by the evidence which I have referred to more than
once of Mr. Bryant who states that when the female pup leaves the
island as a pup, it never returns to the island again, until it comes to
deliver its tirst young.
Mr. Phelps. — Who says that?
Sir Charles Russell. — Mr. Bryant. I will read the passage.
Senator Morgan. — The question would be, how would you come to
find that out?
Sir Chaeles Russell. — How is anything found out?
The President. — I think we must come to the conclusion that there
is a great deal that is doubtful as yet as to these animals.
ORAL ARGUMENT OF SIR CHARLES RUSSELL, Q. C. M. P. 53
Sir Charles Russell.— Undoubtedly. What is not known about
tlie fur-seals would fill volumes, but I was following this up. On page
22, paragraph 138, you will see the straightforward way in which these
Commissioners meet the allegation by admitting it. As to what is the
allegation which can truly be made against pelagic sealing they say, in
paragraph 137 :
An equitable basis of protection is therefore not to be found in the adoption of
any simple ami corresponding close season, including a part of each year applicable
to both shore and sea alike; but as pelagic sealing might easily be regulated by the
adoption of a close season, while shore sealing might with equal facility be governed
by a limit of number, it seems probable that some compromise of interest may be
arrived at by a combination of these methods.
If certain'mouths should be discussed as a close time for sealing at sea, it becomes
important to inquire which part of the season is most injurious to seal life in pro-
portion to the number of skins secured, and to this inquiry there can be but the one
reply, that the most destructive part of the pelagic catch is that of the spring,
during which time it includes a considerable proportion of gravid females, then
commencing to travel on their way north to bring forth their young. It is on similar
grounds and at corresponding seasons that protection is usually accorded to animals
of any kind, and, apart from the fact that these seals are killed upon the high seas,
the same arguments apply to this as to other cases.
Now if you refer back to the paragraph as to which you asked me a
question a moment ago — paragraph 132 on the previous page — the
time they are there referring to, and the catch, is in the month of Jan-
uary, when they are small; and February, March and April, when they
say they are much more considerable.
The President. — Yes, but they say the most destructive part of the
pelagic catch is that of the spring.
Sir Charles Eussell. — That is w^hat I am pointing out.
Lord Hannen. — Do not they mean destructive in the sense of it
destroying gravid females?
Sir Charles Eussell. — That is it.
The President. — That seems to imply that that is a reason why it
ought to be closed.
Sir Charles Eussell. — That is undoubtedly what they say. 1 am
calling attention to it — as I should if I had no other reason for it — in
order that the Tribunal may have a fair idea of their Eeport. I am
calling attention to this as proof of the straightforwardness of the
British Conmiissioners — that they are admitting that the pelagic catch
which takes place to a small extent in January, to a greater extent in
February, March and April, is the portion of the catch which includes
the greater proportion of gravid females, and therefore is, in propor-
tion to the catch, more destructive.
The President. — The pelagic catch is that of the spring. That
would include — the end of the spring — the month of May. They pro-
pose a new close season, on page 25, from the first of May.
Sir Charles Eussell. — No, Sir, as they say, in May and June the
seals are found further North, and these are good sealing months.
The President. — At page 25 they say the close season is to be pro-
vided from the 15th September to the first of May. It might be said
to be those three months during which sealing is destructive.
Sir Charles Eussell. — I think I shall show you when I come to that
part of the case, that that is not so. By that time the great bulk of the
gravid females have got very nearly up to the Behriug Sea.
Mr. Justice Harlan. — By the first of May.
Sir Charles Eussell. — Well, I do not say they have all got into
the Behring Sea by the first of May. However, it is rather anticipa-
ting what I have to say on that subject of regulations; but still we con-
54 ORAL ARGUMENT OF SIR CHARLES RUSSELL, Q. C. M. P.
sider tliat a date may be fixed for tlie commencement of the sailing of
sealing vessels which wonld prevent their overtaking the gravid females
going to the breeding islands.
The President. — You consider they have all passed into the Behring
Sea before the first of May?
Sir Charles Russell. — ISTo, 1 think not. Indeed, this is a very con-
venient opportunity for emphasising my i)osition in this regard. I have
pointed out that these comnussioners were dealing with the question of
regulations, both on land and at sea everywhere for the fur-seal preser-
vation. They were arguing u])on the general assumi)tion that regula-
tions may and ought to be made affecting both land and sea.
The President. — Both Behring Sea and the Pacific.
Sir Charles Russell. — Certainly both Behring Sea, the Pacific,
and the islands.
The President. — Yes, and the islands.
Sir Charles Russell. — They were not, as I have more than once
said, writing in view of any construction of the Treaty, even if they
had theTreat}^, in fact, before them. They were dealing with the ques-
tion generally; andassuming that the whole thing wasuuderone Power's
control, what would be the proper adjustment of regulations to apply
to the whole; but that brings me back to the question I referred to
yesterday, and as to which I wish to state distinctly what the position
of the British Government is, as to which Senator Morgan yesterday
rather challenged me.
The British (joverument are today as ready as they always have been
to deal with the whole of this question inside and outside Behring Sea,
the Pribilof Islands and the rest, but they decline to be parties so far
as they can refuse to be i^arties to an arrangement by which the whole
thing is to be preserved to the benefit of the United States, without
any concession or guarantee from the United States; and, therefore, it
was that I .submitted to you, admitting I conceded it to be a point most
arguable and difficult, as a matter for your consideration whether your
jurisdiction extended outside Behring Sea on the Treaty.
On the assum])tion that your jurisdiction does extend outside Behring
Sea I shall have to make some suggestion on that view presently. That
is our position and I think it is a perfectly just and perfectly fair posi-
tion. If there is to be no concession on the part of the United States
and the whole of the Regulations and claim of the United States were
simply to be directed to the preservation of the fur-seal for their benefit
and for their benefit alone, I do not know what we have got to arbitrate
about. It would have been a thousand times better to have admitted
all these questions of alleged rights as raised in Article VI. Let them
go back to the Ukase of 1799 or the Ukase of 1821 against which they
struggled so severely. This new scheme of proposals is but an asser-
tion again of the old exploded claim of territorial jiirisdiction or claim
of property, and except that it is jmt under circumstances very greatly
changed it is the old claim put if possibly in a more utterly untenable
form.
For the present I content myself with re- affirming our position sub-
mitting respectfully for your judgment and consideration the construc-
tion of the treaty which of course, you must construe for yourselves
whether we raise the points or not, because within the ambit of that Treaty
and that alone is your authority to make regulations at all. Having
decided that point as you shall see fit to decide it, if you come to the con-
clusion your authority extends beyond, you will consider what would be
fair and just and equitable Regulations in that wider area. Returning,
ORAL ARGUMENT OF SIR CHARLES RUSSELL, Q. C. M. P. 55
to where I left off reading- the Eeport of the British Commissioners at
page 23, they then proceed to their summary of general considerations.
These are they :
(a.) The facts sbow tliat some such protection is eminently desirable, especially in
view of further expansions of tlie sealing industry.
(b.) The domestic protection heretofore given to the fur-seal on the breeding
islands has at no time been wholly satisfactory, cither in conception or in execution
and many of its methods have now become obsolete.
(c.) Measures of protection to be effective must Include both the summer and
■winter homes, and the whole migration-ranges of the fur-seal, and control every
place and all methods where or l>y which seals are talien or destroyed.
(d.) Although primarily devised for the protection and perpetuation of the fur-
seal itself and of the sealing industry as a whole, any measures must be such as to
interfere as little as possible with established industries, and such as can be insti-
tuted under existing circumstances.
(e.) Equitable consideration must therefore be given to tlie several industries
based npon tlie taking of seals, and especially to the numl)er of persons dependent
on these i'ov a lis^eiihood and to tlie amount of capital invested, so that the measures
adopted may be such as to recommend themselves on the ground of common interest.
(/.) The controlling Regulations sliould be so framed as to admit of varying
degrees of stringency in accordance with the changing exigencies of the case.
Then they deal with improved methods in taking the seals, and
restrictions in the number of seals taken and finally on page 25 is the
sj)ecific scheme of regnlatioiis which they suggest as to which I may
briefly say they mean a restriction in numbers on the Pribilof Islands,
a zone of protected waters 20 nautical miles from the Islands, and a
close season from the 15th of September to the 1st of May. That would
mean that all that spring catch of January, February, March and
April would cease to be made. Then they suggest alternative measures
not inconsistent with the other, but elastic measures I prefer to call
them, by which in consideration of a decrease in the number killed on
the Islands there should be an extension of the zone. As regards these
I do not propose to examine them in any detail.
The President. — That is not your scheme, you have your own to
submit I suppose?
Sir Charles Russell. — Yes. We borrow some features from this
adapted to the altered circumstances which we will submit to you pres-
ently, but I have now in (conclusion still two important topics to deal
with namely a consideration of the American proposals and then a con-
sideration of those which we venture to suggest for the acceptance of
the Tribunal, and that will not occupy me, I hope, the whole of Tuesday.
[The Tribunal thereupon adjourned till Tuesday the 13th June at
11.30 a. m.j
THIRTY-SEVENTH DAY, JUNE 13™, 1893.
Sir Charles Russell. — Mr. President, I have up to tliis point, upon
the question of Regulations, dealt with what I conceive to be, and
what we respectfully submit ought to be, the general questions which
ought to enter into that question ; and, in order wholly or in part to
remove prejudice, and in order also that the Tribunal should have a
just appreciation of what the actual facts were, I endeavoured to show
in some detail, and I hope I succeeded in showing, that, upon no view
of the actual facts of the case, could it be established that pelagic seal-
ing had been the main or even the principal cause of the depletion of
the seal race which, it is admitted, has to some extent taken i)lace; and
though I have always admitted that pelagic sealing was a contributory
cause, I showed also, or endeavoured to show that the true cause, the
main and j^rincipal cause, was the pernicious system pursued upon the
Islands: a system condemned by the voice of the strongest authorities
representing the interests of the United States themselves; the great
and main fact being, that instead of observing the moderation that had
been j)ursued during the Russian regime^ — that instead of observing
periods of rest as the Russian Government did during that regime, the
United States, beginning by permitting that extraordiiuiry wholesale
slaughter in the year 1868 of nearly a quarter of a million of seals, had
permitted their lessees to take year by year the full quota of about
100,000 a year, unmindful of the fact that they were saj)ping the future
male stock of that herd upon which, to a great extent at least, its future
health and prosperity depended. The general considerations, which I
have submitted should be borne in mind by the tribunal were, that the
Regulations should be just and equitable in view of the common inter-
est to be affected by them: that they ought to be snch that the con-
currence of other Powers might be exi^ected in observing them, that it
was a question of the regulation of rights upon the high seas, not a ques-
tion of the proMbition or annihUation of those rights : and that the great
object, of the Regulations is the preservation of the fur-seal species,
and not the aggrandisement of the United States, or the putting them
in a position in wliich they could reap a larger profit from the killing
of the seals.
• I submitted also that while you had no power to make direct Regula-
tions upon the Islands, yet that you have the j^ower, and I submit
ought to exercise the power, of making your Regulations conditional
upon the observance of certaitt distinct rules upon the Islands, the main
one of which would be moderation as to the number killed, as to which
the Russian example to which I referred, would seem to afford a safe
and convenient guide; and lastly, as to general considerations, I sub-
mitted that in view of the incompleteness of the information which is
even now possessed in relation to the conditions which affect seal life,
your Regulations ought either to be for a definite period of time only,
or if on the face of them they purjiorted to have a longer existence or
application, that there ought to be power, after the lapse of a reason-
able time for either Power to denounce those Regulations and recede
56
ORAL ARGUMENT OF SIR CHARLES RUSSELL, Q. C. M. P. 57
from them. I would wish in that connection to add only this word,
that if such a power as 1 have suggested of denouncing the regulations
after a definite period of 5, 7 or 10 years, or whatever is thought reason-
able by the Tribunal, then each party would be remitted to its original
position, its original rights, whatever they were, unaffected and unim-
paired, and tliat they each of them would be in a position to approach
the consideration of proper Eegulations in view of the wider experience
which the actual working of such Eegulations as you are pleased to
propound will have apported; and that there is no reason to apprehend
that in view of that further light thrown by experience upon the condi-
tions of seal life so far as they may be affected by any Eegulations that
you formulate — there is no reason to suppose that these Powers could
not come easily and satisfactorily to an arrangement of the matter.
Now having dealt with these considerations, but two things remain
for me to do. The first is to consider the suggestion made on the part
of the United States. Tlie second is to assist the Tribunal by suggest-
ing the character of the regulations which upon the part of Great Brit-
ain are suggested as being just and fit and equitable, in all the circum-
stances of the case.
First, as to the regulations put forward on the part of the United
States. I do not know whether I am to regard that suggestion as put
forward seriously.
Mr. Phelps. — I think you may, Sir Charles.
Sir Charles Eussell.^WcH, I really cannot so regard it. I cannot
think that any member of the Tribunal will so regard it.
Why, Mr. President, it takes us back to the year 1799, to the year
1821, and we begin to wonder, in the face of this suggestion of the
United States, at the moderation of the Emperor Paul, because all that
he claimed was JOG miles from the shore, but in that memorandum of
Baron de Tuyll was content with six miles over the area which corre-
sponds with the area which is here in dispute.
Now what is this suggestion. I may describe it correctly thus : a
deprivation for all time of the rights of British nationals over an area
of the sea approaching 3,000,000 square miles; a deprivation forever of
the rights of British nationals to fish for seals in that enormous area;
a monopoly to the United States in that area; a monopoly to the United
States which is to be secured in part by the co-operation and at the
expense of Great Britain, because I take it that whatever scheme of
Eegulations is laid down by this Tribunal, each Power will be morally
bound, internationally bound, to lend its part in the enforcement of
those Eegulations; and all this perpetual exclusion, this monopoly to
the United States, this expense to Great Britain, without one fraction
of security that the object of this Treaty, which is the preservation of
the fur-seals, shall have been secured.
I have spoken of the extent over which this perpetual i)rohibition is
proposed to extend. I have had coloured on this map of the northern
hemisphere what it means. The north pole, of course, is in the centre
of the map.
It is a worse state of things — a wider and a more reckless and
unfounded assertion of the jurisdiction or claim of jurisdiction than in
the time of the Ukase of 1799 or of 1821, because in those days this
region was not a field of much commerce or of much enterprise. But
what is the state of things to day"? This prohibition extends over that
area [Pointing to it.] Here is Vancouver, and here is Victoria, and this
line traced upon the map is the new and established mail route to
Yokohama and China, and I need not say that that means the following
of commerce and of considerable commerce in its train, and yet over
58 ORAL ARGUMENT OF SIR CHARLES RUSSELL, Q. C. M. P.
this vast area there is to be this power reserved to the Uuited States
of searching", seizing, condeumiug any vessel found engaged in sealing
or prosecuting a voyage with a view of sealing. I say, looking to the
altered condition of things, the increase of poi)ulation, the extension
of commerce in the region affected, it is a proposition worse than the
proposition propounded by the Eussian Rules of 1799 and 1821 against
the assertion of which both the United States and Great Britain pro-
tested. But it has other vices than the almost unbridled attempt to
assert jurisdiction. What would be the cost of policing that enormous
area? It would defeat absolutely its own object. What is the experi-
ence of everyone who has had to do with practical legislation or the
enforcement of practical legislation in reference to these matters and
who has read of these matters? Why, that if you put up excise duties
applicable to a i^articular frontier line a high point, smuggling follows
as a necessity. Here the United States propose to take a monopoly in
the principal fur-seal producing area of the world.
What does that mean ? It means driving up the price of the fur-seals
to the highest point of popular demand: It means getting the highest
obtainable price for the fur-seal. What does that mean? It offers the
highest inducement that can be offered to persons to violate this area
and to violate these Rules and to pursue an enterprise attended with
some risk, but, if successfully carried out, with enormous profit; and as
I said in the case of a great frontier when there is an article subject to
a very high duty, so here, yon would have reckless venturesome per-
sons sending comparatively worthless ships to infringe the Regulations
and so, defeating the very object at which the scheme is aimed. I
observe in the Argument of the United States upon concurrent Regu-
lations, at 205, dealing with this matter and dealing a much more limited
area, that they say as to :
What would it cost to maintaiu the naval police required to enforce this scheme
of the British Commissioners of a 20 mile zone?
Will you be good enough to bear that in mind?
How many armed steamers would he needed to guard effectually against the
entrance of a ti'espasser within a prohibited zone, the circumference of which is
upwards of 140 miles, in a region of thick and almost perpetual fogs? A million of
dollars annually would be a moderate estimate of the expenditure required, and this
must be paid by somebody, the Commissioners do not tell us by whom.
What then, I ask, would be the cost of policing this enormous area?
Granted that Great Britain, as no doubt she would, pay proper respect
to the Regulations of this Tribunal, and would discharge her proper
duty in that regard, what w^ould be the cost of policing this enormous
area? Against United States citizens, against the people of Ja])an, it
may be against the citizens of Russia, and against the citizens of
British Columbia: aye, against the subjects of other Powers who have
now no temptation from a remote distance to engage in this enterprise
at all — you would have this state of things: seeing that these Regula-
tions apply only to bind the nationals of Great Britain and the nationals
of the United States you would have a resort to foreign flags — United
States vessels sailing and sealing under foreign flags, and British ves-
sels sailing and sealing under foreign flags: you would have an abso-
lute impossibility of enforcing effectual safeguards, and an occasion at
all points of international dfficulty and international complication: and
lastly, you would have, as I have already said, the impossibility of
expecting the adhesion of foreign Powers which is contemplated by
article VII of this Treaty. I have already pointed out in my introduc-
tory observations that by their own force and virtue your Regulations
ORAL ARGUMENT OF SIR CHARLES RUSi^ELL, Q. C. M. P. 59
would carry uo legal sanction with them, they would carry with them
very high moral sanction, but to give legal ettect to them, as I have
pointed out, legislation by the United States would be necessary — leg-
islation by Great Britain would be necessary and I have to point out,
while I am i^erfectly certain that Great Britain M'ould not fail in doing-
its duty in paying due respect to the Eegulations of tins Tribunal that
such a scheme as this would presentenormousdifficulties,in its passage
through an assembly whether it be the Congress of the United States
or through any popular Parliament. No, Mr. President, this scheme, if
scheme it can be called, has all the evils which could be well concen-
trated in any scheme to be suggested. Let me read the first and seeond
of these j)ropositions. First that no citizen or subject of the United
States or Great Britain shall in any manner kill.
So that however discriminatingly we could kill — killing barren female
or only old males, — nevertheless the prohibition is absolute. Next it
extends over the area that I have mentioned with a ludicrous qualifica-
tion provided that it shall not apply to such pursuit and capture as may
be carried on by Indians on the Coasts of the territory either of Great
Britain, or the United States for their own i^ersonal use.
We get back to that old condition of things in which whoever framed
this paper seems to have thought that the Indians on this coast, went
about half naked or with a seal-skin girtabout their loins, a state of things
which no longer exists at all, nor has for many, many years. They wear
clothes like the white men, and tall hats I am told on their Sundays and
holidays like the white men, the tall hat being universally admitted to
be a proof of advanced civilisation. But "for their own personal use";
Avhich, as I understand, means if they want a skin with which to gird
about their loins, or for their wives or for their children, they may have
it; but to sell it, no; and they are to do this in vessels propelled wholly
by paddles. Oars, in the ordinary acceptance of the word, are not to
be admitted; and they are not to be manned by more than two men.
Two men and a boy would be fatal. Two women and a man would be
fatal; and all this is to be done "in the way anciently practised by such
Indians". Who is to fix the point of what is "ancient"'? And who is
to tell us what was anciently practised by such Indians'? What are the
sanctions that follow any breach of these regulations'? Why, that any
ship actually engaged in killing, or the pursuit, or capture of seals, or
prosecuting a voyage for that purpose, and I want to know how that
purpose is to be ascertained, — only by search, of course, — supposing,
for instance a vessel engaged in whaling; how is it to be ascertained
whether she may not be also contemplating a voyage for the purpose
of sealing, or in the days not remote when the great general fishing
wealth of this region may be turned to profitable account by new modes
of access to rapidly rising markets and as jyopulatioa grows and as the
means of communication increase, for the purpose of fishing; and all
these are to be harased over the enormous area of nearly 3,000,000 square
miles at the will and i:)leasure of the authorities of the United States
or at the caprice of those in charge of its Revenue vessels and subjected
to search uj^on the high seas and if found prosecuting a voyage or
engaged in sealing, then Avhat is to follow? The ship of Great Britain
is to be carried into an American port, condemned, and the men sent
adrift, as they were cruelly sent adrift in the case to which I have
drawn attention, thousands of miles and penniless, away from their
homes. The very contemplation of such a scheme makes one feel as I
feel, I must confess, indignant, especially when it is to be borne in mind
that this is the scheme which it must be admitted requires legislative
60 ORAL ARGUMENT OF SIR CHARLES RUSSELL, Q. C. M. P.
action both on tiie side of Great Britain and the United States to give
effect to it, I should like to know what would have been the scheme
which the United States would have put forward if its (jlaim of terri-
torial jurisdiction, its claim of property in the individuals and in the
fur-seals collectively had been established as clearly as it is, I sulunit,
now established to be non-existent? Suppose, when these first five
questions had been framed, Great Britain had chosen to say, "It is a
remote region; it is not a matter of much consequence to us. The
thing we feel most about is this assertion of right upon the high seas
to seize and search the ships of our nationals; but suitable reparation
being made for that in the past, we care not about it in the future;
by all means have your assertion in relation to Behring Sea," — those
assertions were confined to Behring Sea, — and yet absolutely the result
sought to be pointed at by this so-called suggestion for Kegulations is
infinitely worse to Great Britain than if she had never challenged the
right which the United States has claimed at all.
Mr. President, I cannot seriously consider this scheme. It is selfish ; it
is one sided; it is inequitable; it is unworkable, and it is entirely framed
in oblivion of the fact, if fact it be, as we submit it is, that we have
established that the United States liave in no form in which they have
ventured to put it forward any legal rights in this matter at all, except
the rights belonging to their territorial ownership, and those rights only.
Now, Mr. President, I turn to the suggestion which we think it right
to offer, which at least, I hope the Tribunal will think, we have con-
sidered in a serious, in an anxious, in an equitable spirit, and with the
desire to do something to assist this Tribunal in arriving at a just and,
at the same time, a practical conclusion in this matter.
The first suggestion which we submit to this Tribunal is, assuming
that we are right that Regulations and not prohibition is the question,
that in future all vessels engaged in pelagic sealing, belonging either to
Great Britain or the United States, shall be permitted to do so only on
condition of obtaining a license and carrying a distinctive flag; that is
to say, that no ship belonging to a British national shall be allowed at
the mere will and pleasure of its owner to engage in pelagic sealing, and
that the same shall apply to the ships owned by the citizens of the United
States, that as a condition of their right to engage in pelagic sealing at
all, they shall be furnished with and shall obtain a license and bear a
distinctive flag. This presents no difficulty and no comphcation. There
are four ports, and four ports only, belonging respectively to the United
States and Great Britain, from which the pelagic sealers set forth.
Those are San Francisco, Port Townsend, Vancouver, and Victoria; and
there can be, therefore, no difficulty in providing a scheme by which
there could be at each of these ports a Licensing Authority to license
sealers to pursue pelagic sealing. I put that in the first place for a
reason which I think you. Sir, will appreciate; it is that experience of
similar systems has shown that if you pursue that licensing system,
you have some guarantee for the character of the persons who are
licensed, and you have persons who are giving by their position and by
their means and by their character some guarantee that they are entitled
to pursue this calling. But that is not all, nor principally what is the
advantage. It is that once you introduce a system of licenses you con-
stitute automatically an effective police force. How? Because, to
begin with, you make the whole number of those who have licences a
police force upon those who have none. Those who have the privilege
of the license will, in their own interests, do all they can to safeguard
and secure it, and to see that no vessels that do not comply with the
ORAL ARGUMENT OF SIR CHARLES RUSSELL, Q. C. M. P. 61
legal conditions of the license engage in pelagic sealing at all. That
is the flrst point.
The next point is this, that as regards the licensees themselves, when
you proceed to consider the question of Eegulations relating to zone or
to close time, one or the other or both, you make each licensee a police
or detective upon every other licensee to see that such licensee gets no
advantage over him, the particular person, either by entering within a
prohibited zone and thus securing an undue advantage to himself or
entering a particular Sea before a particular time if a close time is
fixed. So that in that way you get, automatically working to a large
extent, a system of checks and restraints for the enforcement of such
Eegulations as are laid down. That is the first, therefore, that we
should respectfully suggest. It has been suggested by the British
Commissioners in their most candid Eeport, — I think it is in their
Eeport; at all events, I know in the Supplemental Eeport which I am
not stopping to refer to, — that, for reasons which will be more apparent
when I come to consider the other suggested Eegulations, that nothing
but sailing boats should be engaged in pelagic sealing; in other words,
that steam vessels should be excluded.
Now I come to the next question. I deal first with the area in which
it is admitted without any conditions at all that the Tribunal has com-
l)lete power to make such regulations within the scope and for the object
contemi^lated in the Treaty, namely, the eastern part of Behring Sea.
First of all, the point that naturally occurs to one is the question of zone
round the islands. I shall be able to aftbrd a very good illustration of
what has been found to be, or considered to be, reasonable and practi-
cable in the case of other islands further to the west in the case of
Eussia, but I reserve that for the later period of my argument.
Now the Biitish Commissioners have suggested a 20 mile zone round
the island, and that has been treated with some derision by my learned
friends in their arguments; and Mr. Coudert who was most fair and
candid in his, with the exception which I am about to mention, addressed
an argument to show that seals were not got within 20 miles of the
island. I will read the passage in a moment. It is on page 635 of the
print. It is only a word, but it is a little disingenuous, I think. He is
citing the evidence of Ohlsen of the steam schooner "Anna Beck" and
he states through the Victoria Daily Colonist of August 6th, 1887, that
anyone who knows anything of sealing is aware that such archarge, that
is catching seals in Alaskan waters within three leagues of the shore is
ridiculous as we never took fur-seals within 20 miles of shore; and Mr.
Coudert proceeds, "This may explain why that 20 mile zone was admitted
by the Commissioners". That was not ingenuous on the part of my
learned friend. I will not say that it was intentionally disingenuous,
but I do not think that he could have quite realized the matter. What
that points to, Mr. President, is this, that a 3, mile zone, which is
the territorial zone generally admitted, means more than a 3 mile zone.
It means that owing to the circumstances of climate principally, the
atmosphere in Behring Sea, that vessels will not run the risk of
approaching anything near the distance which they might in fact
approach the islands, if they were minded so to do; in other words it
means not that there are not seals within a 20 mile zone of the island —
not that — but that they are afraid to approach, although the zone is only
3 miles, within 20 miles of the islands, because of the serious penalty
that might fall ui)on them if they found themselves within the territorial
waters, and what 1 want to impress upon this Tribunal is that a 20 mile
zone means a great deal more than a 20 mile zone. A 20 mile zone
means for the prudent navigator, for the prudent sealer, for the prudent
62 ORAL ARGUMENT OF SIR CHARLES RUSSELL, Q. C. M. P.
pelagic sealer, a zone probably closer to 40 miles tlian 20 miles, because
he cannot always perfectly satisfy himself as to tlie distance he is from
the nearest land, and looking to the serious penalties that would follow
from an entrance within the prohibited area he keeps outside that area.
I do not stop to consider whether the exact figure that the Commission-
ers have mentioned, of a 20 mile zone, is adequate. What I do wish to
point out is that if you think that 20 miles is not adequate you ought
to have present in your minds that 25 miles means probably 50, and 30
miles means probably 60, and that in the case in which the penalties
necessarily would be serious which would attach for an infringement
of regulations as to zone that prudence and the instinct of self-interest
keeps the pelagic sealer away, and widely away, beyond the outside
limit of that zone.
It is important in this connection to consider two things: what are
the facts in relation to the greater or less plentifulness, if I may use
that word, of seals during the important months which we have to con-
sider, namely, the months of June, July, August and part of Septem-
ber, for pelagic sealing is at an end in the early days of September
unless there is exceptionally tine weather, and then it may be prolonged
for a few days longer.
The President. — In Behring Sea.
Sir Charles Kussell, — Yes, Sir, all I now say has reference to Beh-
ring Sea, and to Behring Sea only.
There are two matters to be dealt with in relation to that. First of
all, the question of what is the evidence as to whether or not during
those months that I have mentioned which are the important months,
the vast majority of the seals are not either upon the islands, or within
a comparatively small zone of the islands themselves, and, further, there
will be an important consideration in this regard applicable particularly
to the question of the animals who have delivered their young.
Upon the first point I should just like to say a word or two for the
purpose of illustrating what I have to say, for I am, as you of course
understand, not reinforcing these points 1 am making, with a fulness
which I should be able to if it were not that I am following the plan
which I have described, of merely stating our case in general outlines,
and my learned friend will fill n]) the i)icture. If you would turn to the
seal chart n" (5 of the United States Counter Case you will see what I
mean. In order to save you trouble and that you may see what I mean,
will you refer to this map also, N" 4, where you see the lines crossing
and recrossing. It is also a United States map in their Counter Case,
and it shows the series of voyages the results of which are set out in
the map to which I first called attention. I only want you to see the
way in which they traverse it.
Mr. Phelps. — It is the cruising map.
Sir Charles Russell. — Yes, the result of the cruising is shown in
the map to which I have called attention. That is all I want to show
you in that connection.
Senator Morgan. — That is the map, in connection with Hooper's
report.
Sir Charles Eussell. — Yes, Hooper and Coulson.
Now forgive me asking your attention to this. You will see a
double circle. Will you be good enough to note what the description
of this chart is. It is Counter Case Chart N" 6, showing the position
and nuiuber of seals observed and reported by tlie United States naval
vessels in Behring Sea, during the season of 18'J2. So that this was,
as far as they could do it, not merely general and vague observations,
ORAL ARGUMENT OF SIR CHARLES RUSSELL, Q. C. M. P. 63
but accurate observation, numerically taken, of the actual number of
seals that they saw and were able to count, and the result of that is
shown in the rmniber of little red ticks that are to be found in Chart 6.
I may say it has been very carefully and correctly done, as far as we
can judge, considering the difficulty of doing- it, but looking- to the size
of tiiat map, one of those little ticks which represents a seal covers a
space of something' like a mile, still it is done as well as it could be
done; and in some instances the number recorded in the logbook of the
particular ship has been checked with the number of ticks to be found
on this maj), and they have been found to coincide, I believe, accurately
in the number that have been checked.
There is one other of the 29th July, 1892, where there is quite a
cluster just north of the Akutan Pass.
Now I wish to call attention to what these voyages were. They were
voyages during the months of July and of August, and you will observe
that within the St. Paul and St. George circle zones what is printed
across that area is this: "Seals within this area very numerous". The
circles are quite properly described there looking at the character and
shai)e of the islands; the outer line of the circle will be in some places
more than 20 miles from the nearest land, but the circle is at the least
20 miles in each case from the nearest land. Now we have taken the
trouble of checking their log books, and by absolutely computing the
seals that are here found in these numerous voyages extending over
the months of July and August, to see what they total up to. The
total shown on the map itself is 1,008 seals altogether, outside the 20
mile zone, and computing the entire number in the log, 1,800 seals.
That is the result of the observations although they say in their logs
that they did not begin to count until 5 or 8 miles from land.
I need not say that when you bear in mind that the notation of one
of these seals upon this map occui)ies the space of nearly a mile or
about a mile, that does not show a very large accunuilation of seals out-
side the 20 mile zone, and when you have that in connexion with the
statement that within the 20 mile zone the seals were very numerous, it
does go some way to establish the i)roposition that during that which
is the important time to consider, the great bulk of the seals are to be
found within that very limited area. Of course, you will bear in mind
what I have said on another branch of the case that our case is that
there is a considerable number of seals that do not go to the Islands each
year and some that do not go for years. I referred to the evidence of
the United States Government Agent, Captain Bryant among others,
who expresses the opinion that in one class particularly the female seal
does not go from the time it leaves as a i)up till it comes back to deliver
its young; that would, be in the third year, and Bishop Veniaminoff
puts the same date. The same argument may be based upon mai) 4 to
which 1 have already referred. It refers to a corresponding period in
1891. This map refers to 1892.
Now there is another very important matter and that is this question
of whether, and if so, to what extent the seals that come to sojourn on
the Pribilof Islands go, and if so to long distances to feed during their
sojourn on the Islands. I referred to this matter on Friday as showing
the incompleteness of information that we have on this very important
point. But there are certain facts in regard to the question which are
not in dispute, and I beg that these undisjmted facts be first noted.
First it is an undisputed fact that the breeding- males which come to
take up their place on the rookery and await the arrival of the cows do
not during the whole of the time that they are on the Islands and when
64 ORAL ARGUMENT OF SIR CHARLES RUSSELL, Q. C. M. P.
the work of procreation is going on feed at all; that is an undisi)nted
fact between us. The universal testimony is that they come on the
Islands fat and sleek and in good condition, and that they leave them,
having stayed by the Islands during the whole of the time lean and
emaciated ; and they do not during that period seek any sustenance at
all. Nature seems to have made the curious provision for tliem that in
the early part of the year and in the winter they have been able to
accumulate an amount of fat upon which practically they subsist dur-
ing this very exhaustive period of their existence. So much as regards
the breeding males, that is common ground. But it is also common
ground, as you will find when you come to the case of the holhischickie
or young males; but as that is not so clearly admitted between us, I
must ask leave to call attention to one or two small points of evidence
on the matter. I will rely in this connexion, in the tirst instance upon
what appears in the United States documents themselves put forward
in their Case and Counter Case. In their Case on page 121 they make
this statement:
Both Captain Bryant and Mr. Morgan say that in their opinion the bachelor seals
feed very little while located on the islands, and Mr. Glidden states that the bachelors
once in a while go into the water, but remain in the vicinity of the islands.
The bachelor seals, the holluschickies are the young males who have
not yet been in a position to acquire a place upon the rookery.
Mr. Glidden states that the bachelors once in a while go into the water, but remain,
in the vicinity of the islands' Anton Melovedoft", the native chief on St. Paul Island
for seven years (1884-1891) states that he has found that the seals killed in May and
early .June were fat and that their stomachs were full of food, principally codtish,
and that later in the season they were poor and had nothing in their stomachs, and
that, in his opinion, none but the mother seals go out in the sea to eat during the
time the herds are on the islands.
I will deal with the mother seals in a moment.
And his opinion in this matter corresponds with the views of natives and whites
who have been long resident on the Pribiloff Islands.
Further evidence on that point is to be found in collateral testimony
in the United States Argument under the title "Feeding" page 159.
In that j)age the last paragraph but one.
The Holhischickie (batchelors) do not go out to feed. When they come in May
there is plenty of fish in their stomachs but after June there is nothing.
Again :
Young wigs go into the water, but during the breeding season hang about the
rookeries never going far from shore.
And again on the top of page 160.
I have also observed (says Mr. Fowler) that the male seals killed soon after they
come to the Island are fat and their stomachs filled with food while those killed in
the latter part of the season are poor and l«an aud without food in the stomachs.
Then Mr. Fratis :
I do not think the batchelors go to feed from the time they haul out until they
leave the islands in November for I have observed the males killed in May are fat
and their stomachs full of fish, mostly cod fish, while the males killed in July and
afterwards are poorer and poorer and their stomachs are empty.
I pass the next and go to Nicoli Krukoft":
I think the batchelors do not eat from the time they arrive till they go away, and
I think so because the seals Killed in May and early June are fat and have plenty of
food in their stomachs, while those killed later than June are poor and their stomachs
are empty and they get poorer aud poorer until they go off iu November.
ORAL ARGUMENT OF SIR CHARLES RUSSELL, Q. C. M. P. 65
Then:
I have found that the seals killctT (says MolovedoflF) in May and early June were fat
and that their stomachs were full of food principally cod lish, and that later iu the
season they were poor and had nothing iu their stomachs.
Then Mr. Redpath :
Young males killed in May and June when examined are found to he in prime con-
dition and their stomachs are filled with fish — principally codfish, hut those killed
later in the season are found to he poor and lean and their stomachs empty, which
shows that the males rarely leave the islands for food during the summer months.
Mr. Webster is to the same effect, and then he i^roceedKS to express an
opinion about the females going out to feed which I will now proceed
to consider.
Senator Morgan. — Is tliere any evidence that you have seen contra-
dicting the statement you have just read.
Sir Charles Russell. — No not that I am aware of. There are state-
ments scattered here and there which say they do not feed much which
wonld imply therefore that they feed a little — during the latter period
of their sojourn on the Island they do begin to feed but not in the months
I have mentioned.
Lord Hannen. — The probability is when the sexual excitement begins
they are provided with a greater supply of fat as in the case of the old
ones, and that probably arises at the same time — the increase of fat in
the males — which serves them as a reserve force.
Sir Charles Eussell. — It may be. It obviously is so in the case
of the older males, but these observations that I have been just readiug
do not apply to the older males.
Lord Hannen. — Xo, it was apropos of that I made the observation
that at the same time that the sexual passions w^ere roused there is a
greater supply of reserve and fat.
Sir Charles Russell. — And the real question is that nature having
made that extraordinary provision in the case of males is there any
reason for supposing that nature has not made a similar provision in
the case of the females. That is a question that is not admitted, and I
will call attention to the evidence in a moment about it. But it is a
very remarkable thing that in all the seals that have been killed you
will find some reference made to theni in what I am about to state, that
what is stated as true of the males is true of the females — that until
you come to the end of the period when their nursing operations are
nearly over then apparently they take again to food.
I will deal with the females in a moment, but there is also a passage
in the earlier Report reprinted in 1881 what we have been calling the
brown book report, of Mr. Elliott bearing on the same subject; and he
does not restrict it, though I do not say he does not mean to restrict it
(as a matter of fact he does not) to sex. He says:
I have examined the stomachs of hundreds which were driven np and killed imme-
diately after their arrival in the s^jring, near the village; I have the word of the
natives here, who have seen hundreds of thousands of them opened during the
slaughtering-seasons past, hut in no single case has anything ever been found, other
than the bile and ordinary secretions of healthy organs of this class, with the marked
exception of finding in every one a snarl or cluster of worms, from the size of a wal-
nut to a hunch as large as a man's list. Fasting apparently has no effect upon the
worms, for on the rare occasion, and perhaps the last one that will ever occur of
killing three or four hundred old hulls late in the fall to supply the natives with
canoe skins, I was present, and again examined their paunches, finding the same
ascaridcB within. They Avere lively in these empty stomachs, and tlioir presence, I
think, gives some reason for the habit which the old bulls have (and others do not)
pf swallowing small water- worn bowlders, the stones in some of the stomachs weigh-
ing half a pound apiece, in othertj much smaller. In one paunch I found over tiv^
B S, PT XIV 5
66 ORAL ARGUMENT OF SIR CHARLES RUSSELL, Q. C. M, P.
pouncls, in the aggregate, of large pebbles, which, in grinflirtg against one another,
I believe, must comfort the seal by aiding to destroy, in a great measnre, those
intestinal pests.
Now, I turn to the wider consideration of tbe case of the females;
and I turn to the British Commissioners' Report, section 232, where
the matter is carefully gone into at page 39 of that Eeport.
Some particulars are given on a later page respecting the abstention from food of
the fur-seals while remaining upon or about the breeding islands. It a]tpears to be
certain that the mature males doing duty on the breeding rookeries do not feed at
all dnring the breeding and for some time at least after landing females do not leave
the rookery grounds in search of food.
That is a common fact admitted, that for some weeks after, — this is a
fiict not in dispute, — the female landing and giving birth to her pup,
she does not for some weeks leave the island, and, therefore, for some
weeks does not obtain any food at all. That is an admitted fact. The
witnesses vary as to the length of time, but the body of evidence turns
to that being something like three weeks.
Mr. Carter. — We do not concede any period of several weeks.
Sir Charles Russell. — The shortest time that is put (I assure
you, Mr. Carter, we are not making these statements without consider-
ing them).
Mr. Carter, — When you say that we concede it, I submit that you do.
Sir Charles Russell. — Well, if you will be kind enough to pay
attention and look at the evidence, I think you will find I am right.
There is not one witness who speaks on the subject who was called by
the United States who does not admit that for a considerable period
they do not leave the Islands after giving birth to their i)up, and the
shortest period, I speak from recollection but after careful examination,
is a period of 17 days. Other witnesses put it longer, and I say the
bulk of the testimony fixes it at about three weeks.
My learned friend. Sir Richard Webster will read this for me.
Sir Richard Webstek :
There is no apparent reason why tlie " holluschickie," or yotiug males, sliould
not go to sea in quest of tish. Singularly enough, however, though animals of this
class have been killed by hundreds of thousands upon the breeding islands under
all conceivable conditions of weather, and often within less than an hour of their
deportation from their hauling-grounds, the almost universal testimony is to the
ettect that their stomachs are invariably found to be free from food.
Then follow some passages about male seals that I need not now
read again. I may say the first number killed was 20 seals, and the
second 98.
Then n° 235 is—
From the large North Rookery on Behring Island, 5th September, an adult male
or " seacatch," two females, and an unweaned pup, were driven directly from the
rookery ground, about 200 yards distant, and killed, by permission of the authori-
ties, for jjresentation by us as specimens to the British Museum. The stomachs of
all four were completely empty, with the exception of a few worms in those of the
three aflults. Not only the pup, but the females, and even the old male, were tat
and in good condition.
Sir Charles Russell. — Now, on the next page, paragraph 242 :
Perhaps the most notable feature in regard to this food question, and one directly
consequent on the prolonged abstinence of the seals from food while on and about
the islands, is the entire absence of all excrement on the rookeries and hauling
grounds. Captain Bryant appears, however, to bo the only author who has specially
mentioned this particular and striking fact. He writes:
The fact of their remaining without food seems so contrary to nature, that it
seems to me proper to state some of the evidences of it. Having been assured by
the natives that such was the f;ict, I deemed it of sufficient imiiortauce to test it by
all the means available. Accordingly, I took special pains to examine daily a large
ORAL ARGUMENT OF SIR CHARLES RUSSELL, Q. C. M. P. 67
extent of the rookery, and note carefully the resnlts of my observations. The rocks
on the rookery are worn smooth and washed clean by the spring-tides, and any dis-
charge of excrement could not fail to be detected. I found, in a few instances
where newlv-arrived seals had made a single discharge of red-coloured excrement,
but nothing'was seen afterwards to show that such discharges were continued, or
any evidence that the animals had partaken of food. They never left the rocks
except when compelled by the heat of the sun to seek the water to cool themselves.
They are then absent from the land for but a short time. I also examined the stom-
achs of several hundred young ones, killed by the natives for eating, and alwaj'S
V, ithoit finding any trace of food in them. The same was true of the few nursing
females killed for dissection. On their arrival in the spring they are very fat and
unwieldy, but when they leave, after their four months' fast, they are very thin,
being reduced to one-half their former weight.
Now, it does not seem more remarkable that tlie male, subject to tbe
trying conditions lie is subjected to during this period, should go with-
out food tbau the nursing female should go without food.
The matter is further referred to at paragraph 242, on the top of
page 42.
In a note appended to the above by Professor Allen, that gentleman writes : Steller
states that in the numerous specimens he always found the stomach empty, and
remarks that they take no food during the several weeks they remain on land; Mr.
IJall coniirms the same statemeut in respect to the present species, and Cajitaius
Cook, Weddel, and others, who have opportunities of observing the different south-
ern species, affirm the same fact in respect to the latter. Lord Shuldham long since
stated that the walrus had the same habit, though its actual fast seems somewhat
shorter than those of the eared seals This singular phenomenon of a pro-
tracted annual fast during the period of parturition and the nursing of the young —
the season when most mammals require the most ample sustenance — seems not
wholly confined to the walruses and eared seals. So far as known, however, it is
limited to the pinnipedes; and, excepting in the case of a single member, the sea-
elephant, to the two above-named families. By some of the old writers the sea-
elephant was said to feed sparingly, at this time, on the grasses and sea-weeds that
grew in the vicinity of its breeding places, but the Aveight of the evidence in respect
to this point seems to indicate that this species fast similarly to the eared seals and
walruses during the period it resorts to bring forth its young.
243. The fur-seals on Juan Fernandez are likewise reported, and without qualifica-
tion as to sex, to abstain from nourishment during the breeding season: "Toward
the end of the mouth of June these animals come on shore to bring forth their young,
and remain to the end of September without stirring from the spot, and without
taking any kind of nourishment."
Those are extracts from the authorities mentioned. Then the British
Commissioners proceed :
Though not at the time aware of Bryant's statement, above quoted, the absence of
excrementitious matter Avas one of the first points noted and remarked on by us after
landing upon the Pribyloff rookeries, and it is to the absence of such matter alone that
the continuous herding together on one spot for several months of so many thousand
animals is on sanitary grounds rendered possible. It became obvious that so soon
as the seals commence again to feed, it must be absolutely necessary for them to
abandoil their crowded quarters on shore. The evidence thus afforded, that the
females do not feed to any notable extent until the young are practically weaned,
or, at all events, until very late in the suckling season, is perhaps more definite than
that given in any other way.
I think there is only one other passage that I have to refer to in that
connection. It is on page 54 of the Report commencing with paragraph
303, which my learned friend will, no doubt, kindly read for me.
Sir Richard Webster. — Paragraph 303 :
The feeding habits of the seals, and the distances to which seals engaged in breed-
ing on the islands may be supposed to go for food, as well as the period of the breeding
season at which excursions in search of food begin to be made, are important because
of their direct bearing on the limits of protection which might appropriately be
accorded about the islands at the breeding season.
Then 304 deals with the full grown bulls; and 305 is:
304. The full-grown bulls, or beachmasters, holding stations on the rookery-grounds,
undoubtedly, in the majority of cases— if not invariably— remain on duty throughout
68 ORAL AKGUMENT OF SIR CHARLES RUSSELL, Q. C. M. P.
«
the breeding season and to the close of the rutting period without seeking food.
The young again, born in any particular season, are not weaned, or not fully weaned,
nor do they, under normal circumstances, leave the immediate vicinity of the shores
till the time of their tinal departure.
305. It is thus only the classes of bachelor and female seals that can, nnder any
circumstances, be found leaving the islands in search of food during the breeding
season. Of the females, the yearlings associate with the bachelors. Some of the
two-year-olds may seek the vicinity of the rookery-grounds for the purpose of meet-
ing the males, but probably they do not lotig remain there, while it is believed that
most of them are covered at sea. Barren females, again, whetlier without young
from age, from an insufficiency of males, or inefficient service, are not in any way
permanently attached to the islands at this time.
306. The remaining — and, at the time in question, most important — class is that of
the breeding females. These, some time after tlie l)irth of the young and the subse-
quent copulation with the male, begin to leave the rookery-ground and seek the
water. This they are able to do because of the lessened interest of the beachmasters
in them, and more particularly after many of the beachmasters themselves begin to
leave their stands. Thus, by about the middle of August, probably only one-half of
the females, or even less, are to be seen at any one time on the rookeries. Snegiloft",
the native foreman in charge of the rookeries on Behring Island, expressed the opin-
ion that the females first leave their young and begin to frequent the water about a
month after the birth of the young. Bryant says about six weeks. Other authori-
ties are less definite on this point, but, according to observations made by ourselves,
the mothers and young were present on the Pribylolf rookeries in ap]iroximately
equal numbers in the last days of July, while, on the same rookeries, in the third
week of August, the young largely outnumbered the mothers present at any one
time, and, in so far as could be ascertained l>y observation, the females were disport-
ing themselves in the sea off the fronts of the rookeries.
307. It is very generally assumed that the female, on thus beginning to leave the
rookery-ground, at once resumes her habit of engaging in the active quest for food,
and though this would appear to be only natural, particularly in view of the extra
drain produced by the demands of the young, it must be remembered that with
scarcely any exception, the stomachs of even the bachelor seals killed upon the islands
are found void of food, and that all seals resorting to the islands seem, in a great
degree, to share in a common abstinence. While, therefore, it may be considered
certain that after a certain period, the females begin to seek such food as can be
obtained, the absence of excrementitious matter on the rookery grounds, elsewhere
referred to, show that this cannot occur till towards the close of the breeding season.
It may, further, be stated, that there is a very general belief among the natives, both
on tlie Pribylotf and Commander Islands, to the effect that the females do not leave
the land to feed while engaged in suckling their young, and that neither of the two
females killed in our presence for natural history purposes on Behring Island, on the
5th September, had any trace of food in the stomach, though killed within a few
yards of the rookery from which they had just been driven. Also bearing on the
same point is the statement made in a memorandum received from Her Majesty's
Minister at TAkio, based on information obtained from a gentleman fully conversant
with the habits and haunts of the fur-seal of the western side of the North Pacific,
as follows : " It is sometimes stated that the breeding cows are in the habit of leaving
the rookeries to fish for the support of their young, but the experienced authority
on whose remarks these notes are founded is not of this opinion. He has never found
food inside the female fur-seal taken on the breeding grounds.
'& o^
Sir Charles Eussell. — Now it is not tiiiimportaTit, I think, to note
there, that the two females who were killed, whose migration is vouched
for as a fact, were killed as late as the 5th of September; and when it
is borne in mind that all the pup-bearing females have got to the Pribi-
lof Islands admittedly by some where about the middle of June — cer-
tainly all practically by the 20th June, — it is a remarkable fact there
are two female seals bearing pups killed on the 5th of September, and
therefore very late in the season, and yet even without any particle or
trace of food in their stomachs.
Now the British Commissioners seem to have weighed- this matter
very carefully and judiciously, and I think in paragraph 308 they prob-
ably state what is the actual fact. They say:
It appears to us to be qtiite probable, however, that toward the close of the season
of suckling, the female seals may actually begin to spend a considerable portion of
■^heir time at sea in search of food. It is unlikely that this occurs to any potable
ORAL ARGUMENT OF SIR CHARLES RUSSELL, Q. C. M. P. 69
extent till after the middle of September, before whicli the season of pelagic sealing
in Behring Sea practically closes.
]!*5"ow, Sir, 1 leave this subject, althoiigli tliere is more to be said about
it. The bearings of it upon the question of zone you well see is impor-
tant because if it be true that they do not leave the islands for food
until that late period when they have acconii)lished their work in not
only giving- birth to, but of suckling-, their young for a considerable time,
of course it justifies the claim for a narrower area and shews the non-
necessity for a wider area of restriction. 1 have not lost sight of the
fact, and I do not lose sight of the fact, that there are instances given
of females with milk killed at very long distances from the islands — I
have not lost sight of that fact at all ; but when it is borne in mind first
of all, that the percentage of death of pups from natural causes is so
enormous, and that these natural enemies of theirs — the Killer Whales —
attack them when they can get at them in the water, is not it a fair
presumption, in the absence of evidence to the contrary, to say that the
seals so found at remote distances, are either seals that have accom-
plished their work of nursing their young — that are going off milk so to
say — or that they are the seals that have lost their pups from natural
causes; for I do ask the Tribunal here (without dwelling on the evidence
which must be examined more in detail), to note this: That while these
instances are mentioned here and there in the evidence on the part of
the United States, I cannot recall any case where there is a combina-
tion of three essential things in order to enable the Tribunal to judge
of the weight of that particular evidence. What I mean is this — a com-
bination of statement as to time, of place, and of number. I find isolated
instances of killing at a great distance, without statement as to date;
of date, without statement as to place, and in both instances no eiuimer-
ation of nuinbers, so that they would probably be, not infrequently what
might properly be characterised as "exceptional cases."
The President. — Is it not a general rule of Natural history, that
all animals that shed their hair or lose their feathers, like birds for
instance, abstain from food and go through a certain process of disease
or illness, at least, during that i)eriod of changing their hair or losing
their feather?
Sir Charles Eussell. — I have not a sufficiently large acquaint-
ance with Natural history to answer the question in a reliable way —
in a way that would assist your view. Sir. In the case of birds of a
domestic kind, I have never known of their ahstaininf/ from food.
They no doubt go through a period of indifferent health, and they
may abstain, to some extent, from food; but I am not aware that they
entirely abstain. There are of course such cases as the case of Deer
who abstain, during- the rutting season, from food to any appreciable
extent, and cases of that kind.
Now, Sir, I have said all I have to say upon that, except one other
observation. You will recollect the Correspondence relating to an
interview between Lord Salisbury and Mr. Phelps as to which there
appears to be some difi'ereuce of recollection between those two gentle-
men u])on the question of a "close time" — This correspondence — (I am
not going to deal with it now) took place in February 1888, and April
1888, and is referred to in December of 1888, where a close time from
April to September, was i)roposed by Mr. Phelps with a conditional or
provisional assent by Lord Salisbury. Now I could not have a more
notable instance than this, of the amazing ignorance that prevailed on
the question of the habits and conditions of seal life, because of course,
the suggestion of a " close time", — (and I ask attention to be paid to
this) — to Lord Salisbury who knew at that time as much about seals
70 ORAL ARGUMENT OF SIR CHARLES RUSSELL, Q. C. U. P.
as I did six months ago, which was notliing-, imi)lies of course that there
is a legitimate season. A " close time " means a time when you are for-
bidden, and implies a time when you are per-mitted. And this, of course,
had relation to Behring Sea, and to Behriug Sea only. But I need not
say that I do not charge Mr. Phelps with i)ad faith in the matter — I
merely charge him, and those who instruct him, with entire iguorance
in the matter, because the proposition of a close time from April to
September in Behring Sea would have meant to say in other words, no
pelapic sealing in Behring Sea; and I need not say that Mr, Phelps
would have been no party, if he had known it, to the fact of putting
forward a suggestion of a close time (which would have meant the pro-
hibition of pelagic sealing), without conveying to Lord Salisbury if he
knew it — I am sure he did not know it — that that meant no jjermissible
season at all.
Now I leave the question of zone. I have made the suggestion and
I have given the reasons why I think a zone of a character which the
British Commissioners have suggested looking to the fact that a pro-
hibition of twenty miles from the shore means a prohibition of nearer
40 miles if not actually 40, would practically leave, during the breeding
season inside Behring Sea, an ample protection for the great mass of
the fur-seals, and the practical protection of all who were engaged in
the actual business of breeding and nursing while they are there.
Senator Morgan. — Do you offer that in connection with your proj)-
osition for a licensing system, or independently"?
Sir Charles Russell. — I mean the licensing system in connection
with it, so far as regards Behring Sea, with one other imijortant point:
The British Commissioners authorize the suggestion (and I submit it
is one which shows their perfect and entire good faith in the matter),
that there should be an absolute prohibition against any pelagic sealing
vessel entering Behring Sea before the 1st of July. That is in addition
to the zone which I am speaking of. The zone is a perpetual zone, you
understand — a regulation forbidding the entrance into Behring Sea of
any vessel before the 1st of July.
Senator Morgan. — July or June?
Sir Charles Kussell. — July, before the 1st of July; and I shall
show reasons why we justify that.
Lord Hannen. — Do you mean justify it in the sense of proposing it
yourself as the proper time.
Sir Charles Eussell. — Why we justify it as one which would be
effective for the object in view contemplated by the Treaty, and one
which would be just. But before I come to that I have, of course, a
word to say. We admit your perfect right, within your undoubted
jurisdiction, to say, as regards Behring Sea, no vessel shall enter before
the 1st of July. That is within your undoubted authority and juris-
diction. Outside Behring Sea we have already submitted — (E am not
going to re-open the question) for your consideration and determina-
tion, whether your authority extends beyond it"? If your authority
extends beyond it, and you feel justified in exercising that authority,
then of course I have to consider what ought to be the regulation out-
side Behring Sea. And now in that connection, without dwelling upon
tlie 1st of July, I will approach the question fiom the other point of
view, namely, from the point of view of earlier in the season.
Senator Morgan. — The question whether our authority does extend
outside Behring Sea, is one for the determination of the Tribunal.
Sir Charles Kussell. — I cannot doubt that you must determine
what is open to the Tribunal on the question of authority, and if you
ORAL ARGUMENT OP SIR CHARLES RUSSELL, Q. C. M. P. 71
come to the conclusion that you have authority and you ought to exer-
cise it, then you, of course, have the right to exercise it.
Now, Sir, you will bear in mind, or if you have not it in mind you
will receive it from me for the moment — that the British Commissioners
have stated that tlie worst part of the pehxgic operation so far as eifect-
ing the birth rate of the fur-seal species, is what is described as the
"early spring catch", and the evidence corroborates their opinion — I
will not dwell upon it now; that is to say, the catch beginning far down
south, and made during the migration nortliward to tlie breeding
islands: that those catches begin in the montlis of January and Feb-
ruary, and go on through March, April, May, June and so on, following
the herd, so to speak, in its migration northward; and the British
Commissioners point out with clearness that that is the i)ortion of the
catch in which gravid females are killed, and they pronounce that to
be the kind of killing which it is desirable should be put a stop to.
There is no such thing 1 think practically s])eaking, as the killing of
gravid females in Behring Sea — it is the killing of gravid females on
the migration of the herd northward.
Senator MorctAN. — Is there any disagreement between the parties
here as to the blue line on the map being substautially the route of
travel?
Sir Charles Russell. — There is; but I must ask my friend as far
as he thinks it necessary, to deal with that. I do not myself conceive
that the differences may be important — I do not conceive it to be very
important.
The problem, therefore, is this, as we submit it: how can you make
a Eegulation which will ensure that the gravid females, and the bulk
of the herd connected with the procreation and continuation of the
species shall have reached the Pribilof Islands free from the attack of
the pelagic sealer! Now I think I am stating the pro])ositiou fairly:
the British Commissioners suggest that an effective mode would be to
prevent them sailing from any one of these liucensiug ports before the
tirst of May. Whether that date is late enough or whether the Tri-
bunal may think that that date is late enough I do not know; but they
justify it by saying this. They say: by that time there is far ahead of
the pelagic sealer the great mass of the gravid females; and that does
seem to be borne out to a considerable extent by another Chart of the
United States which is called the ^'Migration Chart", which is n° 7 in
the Counter Case, to which I should like now to draw the attention of
the Tribunal. This, Sir, I think I must ask you to have before you.
You will see in the centre of the map, the months "November",
"December", "January".
I do not thiidv you need really be troubled with those, they are very
unimportant months. The weather is such in those months that pelagic
sealing, practically, can hardly be said to be pursued at all; but now
when you come to the other months, you will see for instance, the
mouths of "February", "March" "April", I wish to indicate that the
hlach dots are intended to represent the /emrt/es, including the gravid
females; and the reJ- dots are intended to represent the males. Now
you will see that during the month of February there is an admixture,
the males preponderating; that during the month of March, again
there is an admixture; but that as you progress in the month of IMarch
the female seals of the gravid herd get ahead of the rest on their way
up to the Islands. You may see that. Sir, just under the word " March".
Again, if you follow the stream right uj), by the month of April you
will see as you follow that line in its bend round, that the females get
?2 ORAL ARGUMENT OF SIR CHARLES RUSSELL, Q. C. M. P.
ahead again there. So iu the month of May; so in the month of June;
so in the month of July. You will observe that iu the months of June
and July the whole of the tail of the herd is male, and that the greater
number of females are all to the front. Now take that fact finally fol-
lowed out, and you will see that when you get to the uortli of the
Aleutiau chain you have nothing but blacJc dots. There the bulls have
got to the islands before, and they are not shewn by this plan. You
have nothing but hlaclc dots there — iu other words a continuous stream
of gravid females on their way to the islands. Now the evidence is —
(I cannot stop to refer to it) — that by the middle of June the great
bulk of the gravid females have got to the Pribilof Islands: that by
the 2()tli of June practically all have got to the Pribilof Islands and
therefore practically all — when I say practically all I do not mean that
there may not be some remaining — but practically all have got to the
islands by the 20th of June; and therefore the proposition is to reg-
ulate the date of sailing from these licensing i)orts so that the great
bulk of the herd shall have got away, and into the Behring Sea on their
way to the Pribilof Islands before they could be taken or overtaken by
pelagic sealers setting out from San Francisco, Vancouver, Port Town-
send, or Victoria.
Lord Hannen. — Upon that assumption we are to i)revent their enter-
ing Behring Sea before the first of July?
Sir Charles Eussell. — I quite agree, because the Commissioners,
apparently, desire to be on the safe side in order to allow the work of
parturition — the business of producing the young — to have been accom-
l)lished before there could be capture.
Lord Hannen. — A zone round the islands would protect that.
Sir Charles Eussell. — That is undoubtedly my opinion if I were
to be asked it. I am putting it ou the authority of those who. —
Lord Hannen. — That is why I asked you, when you said you justi-
fied it, whether you meant yourself to put forward the 1st of July as.
the jiroper time?
Sir Charles Eussell. — Undoubtedly I do not gainsay the sugges-
tion of the Commissioners; for as they think proper to make it, I do not.
in any way oppose it. It does seem to me an unnecessarily wide restric-
tion; but as they have made the suggestion we feel bound to act uponi
it, and put it before the Tribunal.
Now, as bearing on this matter, it is important to call attention to>
distances. We have taken the distances, in order that the Tribunal:
may have them in their minds, from these various ports to one point,
Unimak Pass, which is the principal pass. From San Francisco the
Unimak Pass is 2,080 miles. From Victoria to Unimak Pass is 1,560/
miles.
Senator Morgan. — In a direct line ?
Sir Charles Eussell. — In a direct line. These are all direct lines..
From Port Townsend to Unimak Pass is 1,560 miles, the same as Victo-
riaj and Vancouver is jiractically the same. There is very little differ-
ence.
The President. — Could you state the time required for a sailing;
boat to go from those places to Unimak Pass?
Sir Charles Eussell. — That, of course, is a matter which depends ;
on various circumstances.
Lord Hannen. — Why restrict them then as to the time of sailing!'
Why not say they shall not begin to fish before such and such a timel'
Sir Charles Eussell. — The only reason is the difticulty of checking,.
Lord Hannen. — Other means might be taken for checking.
ORAL ARGUMENT OF feIR CHARLES RUSSELL, Q. C. M. P. 73
Sir Charles Eussell. I quite agree tbat the licensing system
would act as a check.
Lord Hannen. — Tliey could be required to keep a log, stating when
tbey begin to fish, antl where they catch the seals, how many they
catch, and so on.
Sir Charles Russell. — I am coming to that in a moment.
Lord Hannen. — The other way, it seems to me, is a very artificial
way, of regulating the matter, saying they shall not start until a par-
ticular day. It is giving the advantage to particular sealers, and so on.
Senator Morgan. — 1 would suggest to Lord Hannen that this is what
is done in the case of the hair seal on the northeastern coast, by the
laws of Newfoundland.
Sir Charles Eussell. — The last suggestion that I have to make in
this connection — because this will be worked out more elaborately by
reference to the evidence — is that each of these licensed vessels should
be required as a condition to their having a license to preserve an accu-
rate record of their catch, and time, place, age, and sex, and certainly
similar regulations ought to be observ^ed upon the islands.
Now I have said really all that I intend to say in the way of our sug-
gestions, which I confess seem to me to be — I perhaps ought not to
express my own opinion — to have been suggestions conceived in a broad
and liberal spirit by the British Commissioners, and a very large recog-
nition and a very honest recognition of what they conceive to be the
object of this treaty.
Mr. Justice Harlan. — Are they reduced to writing separately?
Sir Charles Eussell. — No; we will put them in a more definite
form later.
Now, Mr. President, I have very little more to say on the question of
regulations except this: Senator Morgan I think already has intimated
the opinion in which we, representing the British Government, entirely
agree. The suggestion of the United States is that you should, in your
regulations, not merely lay down rules, but also lay down sanctions
and remedies and proceedings and methods for carrying out those rules,
for enforcing them. I cannot conceive that that is the function of this
Tribunal at all. It cannot be doubted that when this Tribunal has dis-
charged its functions of intimating the rules which, within its author-
ity, it thinks to be necessary for the object contemplated in the treaty,
that both the United States and Great Britain will be ready to give
effect by adequate measure to the enforcement of those rules on their
repective nationals.
Senator Morgan. — I have been misunderstood, if I was understood
to express the opinion that this Tribunal should enforce its regulations
by prescribing penalties.
Sir Charles Eussell. — I quite agree. I am anticipating that view.
That was not the course which was followed and wliich exists — one of
the Tribunal, I have no doubt, has acquaintance with the working of
it, — in the case of the Janmayen. Each of the powers interested in the
observance of that Janmayen Convention has made its own legislation
directly in restraint of its own nationals, and of course claiming the
right to deal with its own ships and in its own court of judicature. The
notion of an American ship being taken into a British port and there
dealt with, or a British ship, being taken into an American port, is of
course entirely repugnant to the national feeling which would prevail
either in one country or the other.
* The President. — You would also exclude the right of searching?
Sir Charles Eussell. — Certainly. I have dealt with that point
already. Lastly, I have to make one reference. My learned friend
74 ORAL ARGUMENT OF SIR CHARLES RUSSELL, Q. C. M. P.
Mr, Phelps in liis printed arjjument make this statement at page 160.
It is in reference to what he supposes to have been the action of Kns-
sia. He says :
The firm and resolute recent action of the Russian Government in prohibiting in
the open sea, near the Commander Islands, the same depredations upon the seal herd
that are comi^lained of by the United States in the present case, and in capturing
the Canadian vessels engaged in it, is well known and will be universally apiiroved.
That Great Britain, strong and fearless to defend her rights in every quarter of the
globe, will send a fleet into those waters to mount guard over the extermination of
the Russian seals by the slaughter of i>regnant and nursing females, is not to be
reasonably expected. The world will see no war between Great Britain and Russia
on that score.
Ko indeed, it will not; because Russia is wise, and is wisely advised
and understands what the limitations of its rights in fiict are. Now I
wish to make this point clear, as my learned friend has invited atten-
tion to it. We know that the Russian Government is — or more cor-
rectly we ought to put it that the United States Government has been
in communication with Russia, and has been endeavouring to get Rus-
sia to make common cause with it upon this question. I refer, Sir, for
this purpose to the dispatch set out in the largest volume of all, volume
three. United States No. 3, 1892, part 4, page 21. It is only a sentence
and I need hardly trouble you to do more than take the reference to it.
It is from Sir Robert Morier to the Marquis of Salisbury, June 10, 1891,
from St. Petersburg:
When your Lordship's telegram of the 2nd instant respeeting the seal question in
the Bering's Sea reached St. Petersburg on Wednesday morning, I chanced to be in
Finland; whither I had gone for an indispensable change of air. M. de Giers also
intended to proceed thither at the end of the week. The places where we were
staying were a considerable distance apart, and I was not sure which day M. de
Giers was leaving St. Petersburg. I did not know whether to go to the capital or
to his country-house. I accordingly telegraphed to Mr. Howard to at once address
a note to the Foreign Office in the sense of Your Lordship's telegram, and arrange to
meet M. de Giers at his country-house ou Sunday. By this means no time was lost,
for as early as Thursday night M. Chichkine, the Under Secretary of Foreign Affairs,
had telegraphed the contents of Mr. Howard's note to M. de Giers, who when I
reached him on Sunday, had had the i)apers connected with the subject sent ux) to
him and was in a position to give a provisional reply.
His Excellency's statement was to the following effect.
The question of seal hunting in the Behring's Sea had formed the subject of con-
tinuous negociatiou between the United States Government and his own for a very
considerable time, and many proposals had been submitted to him by the United
States Department, to none of wliicb, however, had he been able to give his assent.
So far as he could see, your Lordship's proposal was very reasonable, and its prin-
ciple— namely, to give the seal fisheries a year's rest in order to come to a definite
arrangement as to the best means for preventing the destruction of these valuable
animals — was one with which he had the fullest sympathy.
I do not think there is anything else in that that I need read. My
point is to show that Russia was made aware of the pretentions which
the United States was advancing, and declined, as is there stated, to
join in those pretentions; but we are now in a position to put before
you reliably what is the attitude of the Russian Government. That
appears in a Parliamentary paper, with which I am not going to
trouble the Tribunal, but the effect of which I will shortly state.
Mr. Carter. — What is about to be read now?
Sir Charles Russell. — A Parliamentary paper, Russia No. 1, 1893.
Mr. Carter. — Where is that to be found ?
Sir Charles Russell. — It is not to be found in the books. It can-
not be, because it is a paper which was written in 1893.
Mr. Carter. — Do you propose to put it in evidence?
Sir Charles Russell. — 1 am proposing to meet a statement which
Mr. Phelps has made in his i)rinted argument, which bears with it a
ORAL ARGUMENT OF SIR CHARLES RUSSELL, Q . C. M. P. 75
certain implication, and to meet that by evidence of historical docu-
ments, to show that implication is not correct.
Mr. Carter. — In other words, yon j)ropose to put it in evidence.
Sir Charles Kussell. — Certainly.
The President. — Mr. Phelps, do you object to that?
Mr. Phelps. — We do not care to object to this paper, Sir. The
whole of it of course goes in, so that we will have the opportunity to
refer to it.
Sir Charles Russell. — I have not the slightest doubt that my
learned friend is in possession of all these papers. I hope he is.
Mr. Phelps. — Of course we are not to be understood as waiving the
ground upon which we have stood all along, that new evidence is not
admissible at this time; but we do not care to raise the objection to
this paper.
Sir Charles Russell. — This must be unarguable. It is not new
evidence, I submit with great deference. It is in reference to a state-
ment of my learned friend from which he wishes the Tribunal to draw
a certain inference, which is in fact incorrect, but which we had no
opportunity of meeting because it appears in the argument.
Mr. Carter. — It certainly is new evidence; but we do not care to
raise any objection on that score. We do not agree that new evidence
is generally admissible.
Sir Charles Russell. — I first of all call attention to this fact (I
am not going to read it in detail; my learned friend will do so) that
when in 1893 the seizures by Russia had taken phice, we called ujion
the representative of the Russiaii Government for an explanation in
the letter of the 2;jth of January, 1S93, from Sir Robert Morier to Lord
Rosebery, page 5 of the correspondence;
His Excellency stated incideutally that he believed that in the case of the sealers
captured last season it wonld be found that none of them had been taken illegally,
for if they had been seized outside of the territorial waters, it was after the clearest
proof that they had just emerged therefrom.
In other words, they say: None of our seizures were against the
rules of international law as to territory, because they were either
within the three miles limit or had just emerged from it, having com-
mitted an oft( nee within it.
Finally this correspondence takes the shape of negociation between
Russia and Great Britain for a Modus vivencU; and that Modus vivendi
stated shortly thus: It is now finally agreed that the zone from the
Russian coast shall be 10 miles and around the Russian seal islands
30 miles; this agreement be it understood being entirely j^rovisional,
each party standing upon its own rights and in no wise aft'ected in its
possession by this provisional or temporary agreement.
Mr. Justice Harlan. — How long was the Modus to last?
Sir Charles Russell. — One year. Each Government standing
upon its own rights and the Russian Government perfectly aware of the
position assumed by the United States, reserving its right to say that
it might extend its territorial jurisdiction for the purpose of putting
sealing down, etc. . . those contentions, of course, being traversed on
the part of Great Britain, but each party standing on its rights. But
the value of the correspondence is this: Tliat there is an entire absence
of that v/hicli has been the great — up to a certain point — argument of
my learned friends of a claim to property in the seal collectively or indi-
vidually, or in respect to the industry founded upon the seal, or that
pelagic sealing was an invasion of that right or industry. Next that
they have recognized that in the circumstances of the case a zone of
7G ORAL ARGUMENT OP SIR CHARLES RUSSELL, Q. C. M. P.
tbirty miles around tbe islands, or being nnder the impression also that
breeding females do go to feed and urging, as you will see from the cor-
respondence, when it is read, that even a sirmller zone may be adequate
to the purpose, yet that thirty miles would be adequate to cover the
extent to which females would go during the nursing season for the pur-
pose of feeding.
And lastly this is the concluding point to which I have to call the
attention of the Tribunal that in the case of the seizures I give you the
names of the vessels, tbe Marie, tbe liosie Olson, and the Vancouver.
Russia claims that those were lawfully captured because they had com-
mitted an offence within the territory of Russia, within the three miles
limit, some there captured, or if not there captured, ijursued, having
offended, within the three miles limit.
But as regards two other vessels, the McGowan and the Ariel, they
have undertaken to pay damages in respect to the seizure of those ves-
sels, because while they allege that they believe it to have been morally
certain that they had been sealing within the three mile limit, they
have not sufficient evidence to justify it, and therefore they are xiayiug
damages in respect to tbe seizure of those two vessels.
Mr. PiiBLPS, — Is that in the correspondence. Sir Charles "?
Sir Charles Russell. — It is not in the correspondence.
Mr. Carter. — Where isiti
Sir Charles Russell. — It is in a telegraphic communication received
from St. Petersburgh, a copy of which will be handed to you.
Mr. Carter. — And which we object to the reception of.
Mr. Phelps. — Of course. We have no means of refuting it.
Sir Charles Russell. — Why do you, if you are not prepared for
the consequences, make a statement in which you seek to imply before
this Tribunal that Russia is making assertions which Russia is not in
fact making?
Mr. Carter. — We make that upon evidence.
Sir Charles Russell. — Where is the evidence? There is not a
particle of evidence to justify it. On the contrary I have pointed out
the statement appearing in the argument of my friend Mr. Phelps, and
it is not supported by any evidence to befouud in the Case or Counter
Case.
Mr. Carter. — Then you do not require any new evidence to refute it.
Sir Charles Russell. — I do not stop to bandy words at this
moment witli my friend.
I had forgotten to mention, — my friend Mr. Robinson very properly
reminds me — tbat one of the stipulations that Russia did not consider
unworthy of its dignity was to reduce the number of seals taken on tliese
seal islands to thirty thousand. That appears in the correspondence;
and also they agree to the presence of an agent of Great Britain on the
islands with reference to this modus vivencli.
Mr. Phelps. — Perhaps my friend Avill allow me to ask his attention
to the debate in the House of Lords on one of the days of last week,
reported in the London Times, in wbich Lord Roscbery made a state-
ment in regard to this, which to my recollection contains nothing about
damages.
Sir Charles Russell. — No; you are perfectly right; it does not.
But I am stating upon direct information from the Foreign Office what
is the actual state of things to-day. I have no objection to my friend
referring to tbe debate at all — not the least.
Tbere was only one other matter I bave to mention. It has nothing
to do with the regulations. You recollect the question of the find-
ORAL ARGUMENT OF SIR CHARLES RUSSELL, Q. C. M. P. 77
ing^s of fact and counter findings suggested respectively by my learned
friends and by ourselves. I am glad to think that you Avill not be
troubled so far as any disagreemoit is concerned. Of course tlie find-
ings will be on the responsibility of the Tribunal; but we have in fact
agreed, and 1 do not think the Tribunal will find there is any difference
between us as to the findings of fact iu relation to the question of dam-
ages.
Mr. Justice Harlan. — Do you mean that the two papers agree, or
that you have since come to an agreement?
air Charles Eussell. — We have agreed upon a via media which
will be handed in at a later stage.
Now, Mr. President, I have concluded all I have to say in discharge
of my duty on this question of regulations ; but I do pray the Tribunal
to bear in mind that I have tried to follow the plan which I outlined
at the commencement of my argument, and I have not built up and
reinforced the points I have been submitting with at all that detail or
reference to evidence which 1 might have done. 1 have tried to out-
line, with the consent and co-operation of my friends, the general
scheme of argument upon the subject of regulations. Having done
that, I leave to my learned friends the task which they are well fitted
to discharge of going into the justification of that scheme in detail.
I will ask the Tribunal to believe that not the British Commissioners
only but the counsel who are representing directly Great Britain in this
matter have approached the question of regulations with an honest
desire to do something to aid the Tribunal in coming to a system of
regulations which should be just in themselves, in view of the common
interests at stake, and which should be efl'ective to the object in view.
We have addressed ourselves to that task in all seriousness, and 1
would ask you to believe, in all honesty of purpose, too; and I hope the
Tribunal will think we have done something which may be of help to
them in the formidable task which they have to discharge.
It remains for me only to express to each member of this Tribunal my
sense of the extreme courtesy and patience with which, taxing them to
a very large extent, I have been treated during this argument.
The President. — Sir Charles, we appreciate your kindness and your
efforts in this direction. We are certainly thankful for all the trouble
you have taken.
[The Tribunal here adjourned for a short time.]
PUR-SEAL ARBITRATION.
ORAL ARGUMENT
ON
E,EG-TJL.^TIOIsrS
BY
Sir RICHARD WEBSTER, Q. C, M. P.,
BEFORE THE
TEIBUI^AL OF AEBITEATION",
CONVENED AT PARIS.
79
THIRTY-SEVENTH DAY, JUNE 13™, 1893.
The President. — Sir RicLard, we sliall be pleased, if you are ready,
?to hear you.
Sir EiCHARD Webster. — Mr. President, I am ixiinfully conscious of
^the time that our case has occupied, and of the extent to which we have
■tresi^assed upon the attention of this Tribunal, but I trust that upon
i:his part of the case I shall be able to give the Arbitrators some sub-
.:stautial assistance at any rate in forming a judgment as to the true
?facts of the case. It is quite imijossible to attempt to touch every point
tthat is referred to in these papers; so to attempt would be to defeat, to
:a large extent, one's object. I do not pretend that this part of the case
^;an be put in the sam.e way, as the arguments on the question of right.
'These are questions of fact upon which there is counter evidence ui)on
?botli sides. It will be my duty as fairly as I can, to put before you the
(material evidence bearing upon the questions of fact which ought, we
submit, to affect your minds in deciding this question of Eegulations.
I will endeavour to exhaust each point as I pass it by so as to curtail
within the shortest possible limits, the time that I must ask you to be
good enough to devote in listening to my observations. It will be con-
venient if I dispose once and for all of this Russian question. It has
a bearing upon Regulations, it has an indirect bearing upon the (|ues-
tiou of property which I discussed some days ago. If I take it at once
as I said, once and for all, I shall clear it away from the minds of the
Tribunal and be able to refer to the incident afterwards without actu-
ally referring to the papers. You will remember. Sir that in the coun-
ter case of the United States at page 29 the United States say:
In making this assertion the United States believe they are fully sustained by
Russia's action during the summer of 1892. In that year sealing vessels assembled
in great numbers about the Commander Islands and killed fur-seals in the extra
territorial waters surrounding this group. Russia anticipating that her seal herd
would be thus preyed upon, had dispatched to those waters in the early part of the
season two cruisers, which seized six vessels, five of them British anil one of them
American, carrying them in from a distance greater than three miles from any land.
Now, Mr. President, I ought to mention that Mr. Coudert, or Mr.
Carter in his argument referred to the Russiaii action, as indicating an
intention by Russia, to make the same kind of claims as those which
w ere made by the United States. We were therefore in a somewhat dif-
ficult position — that whatever our owu knowledge might be with regard
to the matter we were not in a position to state it because as you will
well know as long as matters form partmerely of diplomatic negociations,
is it not considered that they should be brought in any way into the
arena of public discussion; but by the paper of which my friends have
a copy — the Parliamentary paper which was presented to the House of
Commons and House of Lords last week — that restriction upon our
utterances is removed and I am in a position, as the Attorney General
told you, to put before you the simple facts with reference to the mat-
ter in the briefest possible way.
Mr. President, two questions were involved — one the seizure of five
or six British vessels in the year 1892, the other a question of Rcgula-
H
B S, PT XIV 6
82 ORAL ARGUMENT OF SIR RICHARD WEBSTER, Q. C. M. P.
tioiis, ami it is because this paper deals with both tbat I have taken it
first. As you will see in a very few minutes, it has a very important
bearinti" on the question of Kegulations, but 1 mention the two subjects
together so tliat I need not n)eution them again. My learned friend,
Mr, Phelps mentioned today that in the debate in the House of Lords
last week when part of the arrangement respecting Eegulations was
referred to, Lord Kosebery, the Foreign Minister for Great Britain had
not stated that there was any definite arrangement with regard to the
seizures of last year, but as had been in-eviously stated in the House of
Commons by the Under Secretary, the matter was still in negotiation;
and, Mr. President, it was not till to day that the Attorney General or
myself could have told the Tribunal that which the Attorney General
has told you. We knew perfectly well what was happening, but were
not in a position to state it for the reasons I have already mentioned.
The matter had been referred by the Kussian Government as appears
by the papers to a Committee on wliich a very distinguished jurist is
sitting — ]\Ir. Martens one of the gentlemen whose authority we have
cited in the course of the case, and till that Committee reported, the
question of the seizures during the last year could not be dealt with.
Now with regard to the seizures, I Avill dispose of them in a moment.
Russia never did claim at any time to seize these vessels outside the
territorial waters except where there was evidence that they had been
inside. That will appear from the correspondence which I will read in
a moment. I merely mention that in the final arrangement, made as
read to you this morning by the Attorney General the only case in
which they seek or ask to justify the capture i^ where the boats of the
ship herself had been actually engaged in sealing in territorial waters.
In the other case they admit a responsibility and liability to indemnify.
This jjaper from which I am about to read which is now before my
learned friends and before you, would have told you the same story,
but not quite so shortly as the telegram or information from the Foreign
Oftice that the Attorney General read to you this morning. I will
read no more than is necessary and if I might trouble you to take the
paper and to look at p. 3.
In the despatch from Lord Rosebery to Sir Robert Morier on the 18th
January, 1893, occurs this passage.
But the seizures of British vessels by the Rnssiau authorities iii Behring Sea dur-
ing tlie course of last year, at considerable distances from land, render it expedient
to arrive at some definite understanding of the attitude of the Russian Government
in this respect.
I have, therefore, to request that your Excellency will inform the Russian Govern-
ment of the application that has been made by the Canadian sealers.
You will state that in the opinion of Her Majesty's Government, which they doubt
not will be shared by that of Russia, the memorialists ought in justice to receive
early information as to the limits within which tliey may lawfully and safely pursue
their industry.
And then, Sir, on page 4, on the 11th of January, Sir Robert Morier,
writing to Mr, Chichkine the representative of Russia, puts the matter
in these words:
As at present advised Her Majesty's Government proiiose to inform them
That is the sealers :
that the modus vivendi agreed upon between Great Britain and the United States
having been prolonged during the pendency of the arbitration on the questions in
dispute between these two Powers, sealing will be entirely prohibited to their respec-
tive subjects and citizens during the next season in the waters affected by that agree-
ment; but that outside those waters sealing vessels will be at liberty to pursue their
ORAL ARGUMENT OF SIR RICHARD WEBSTER, Q. C. M. P. 83
avocation provided they are careful not to infringe the Russian regulations, which
strictly prohibit the pursuit of seals and other animals within 3 miles of the Russian
coasts and islands.
Then on the 2otli of January at page 5, Sir Robert Morier reports to
Lord Rosebery tlie result of his interview with Mr. ChiclikinCj and I will
read as much as is necessary from that paper:
His Excellency said that he would not be able to do so until my note had been
returned from the Ministry of Domains, which was the Department which dealt
with the question of sealing, and to which it had been sent. He would press its
return, but there could be no doubt what the answer would be. The Russian Govern-
ment were not at present raising the pretension of prohibiting seal fishing on the high
seas, but were only determined to stoj) the resolute and organized attacks made upon
the rookeries within her territorial waters. I said that the strongest warning would
be given to British sealers to abstain from violating Russian territorial waters, and
that Her Majesty's cruizers would be instructed accordingly.
His Excellency stated, incidentally, that he believed that in the case of the
sealers captured last season, it would be found that none of them had been taken
illegally, for if they had been seized outside'territorial waters, it was after the clear-
est proof that they had just emerged from them. I said this was a matter of evidence
in each particular case, which I could not attempt to judge ; but that from the state-
ments made by the Russian cruizers themselves, it was difficult to admit that the
captures were lawful.
I call the attention of the members of the Tribunal j)articularly to
the report of the interview given by Sir Robert Morier, in which the
Russian representative draws the distinction between a legal taking
inside territorial waters, and an illegal taking outside.
Now you may pass over the intermediate correspondence and come
to page 11 to the translation of the letter from M. Chichkine to Sir
Robert Morier which you will lind will have a very important bearing
when I come to discuss the question of Regulations and I read it now
so as not to have to refer to the correspondence again. This is the sec-
ond ]>aragraph:
While thanking you M. I'Ambassadeur, for this action, of which the Imperial
Government takes note, 1 hasten to inform you that the question of the measures to
be adopted to ])revent the destruction of the seal species has been under considera-
tion for some time past, and that I have been obliged to wait 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 tlie insufficiency of the strict
application to this matter of the general rules of international law resiiecting terri-
torial waters has been proved by the mere fact that negociations were commenced
in 1887 between the three Powers principally concerned with the object of agreeing
upon special and exceptional measures.
I am desirous to avoid lengthening the matter by unnecessary com-
ment, but I must be allowed to point out that which will appear over
and over again in this correspondence that the attitude of Russia has
been consistent throughout, namely, claiming a right to exercise these
powers within the territorial limit subject to the agreement outside and
a reference to the fact that the general rules of international law are
not sufficient for the purpose required.
Now turning to page 12 the letter continues.
The following figures clearly show th is :
The number of seals to be killed annually is fixed by the Administration in propor-
tion to the total number of seals. In the years 1889 and 1890, before the establish-
ment of the Anglo-American modus vivcndi, 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. On the other hand according to the statistical information
Avhich the Imperial Government, has been able to obtain, the (luantity of seal skins
of Russian origin delivered by the sealers to the London market increased during
those two years in an inlinitely greater proportion. According to the observations
made by the local Administration the uumljer of vessels engaged in sealing and seen
in the neighbourhood of the Commander Islands and lueleu (Robben) Island has
also increased considerably.
84 ORAL ARGUMENT OF SIR RICHARD WEBSTER, Q. C. M. P.
You will find that means seen from the Islands.
The barbarous and illicit proceedings of these sealers are also proved by the fact,
established by seizures, 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.
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.
Language could not be stronger, Mr, President, to point that which I
desire to bring prominently to the mind of the Tribunal after the fullest
investigation and postponing this matter till there had been complete
investigation, the considered opinion of the Russian authorities, who
had managed the Commander and Robben Islands at any rate not worse
than the United States authorities have managed the Prybilof Islands
is that the female seals are hardly if ever found far from the shore dur-
ing the sealing season, and further they were complaining of the seals
injured in territorial waters, and they gave as evidence the fact that
nuinbers of them have been found on the shore actually abandoned
within the territorial waters. — Then:
The Imperial Gov-ernment on their side do not hesitate to recognize the fact that
protection cannot be carried out in a really satisfactory manner unless it is pre-
ceded by some such agreement,
I need not point out that this is absolutely inconsistent with any
suggestion that Russia themselves meant to take the law into their
own hands.
Accordingly they are disi>osed to enter into negociations at once with the Govern-
ments of Great Britain, and of the United States of America; but they recognise 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 Excellency's note of the Uth
(23rd) 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:
I. 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 tlie Commander Islands and Inlenew
(Robben) Island according to the Russian official maps, which implies that tlie pas-
sage 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 dis-
tance of from 7 to 9 miles from the coast, while their boats and crews engage, in seal-
ing 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-mile zone round 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, tho killing of
which is particularly destructive to the seal species at the time of the year when
the females are suckling their young, or go to seek food on the banks known as
"sealing grounds". While requesting you Mr. I'Ambassadenr, to bring the forego-
ing considerations to the knowledge of Her Majesty's Government, I think it impor-
tant to insist on the essentially provisional character of the above measures adopted
underpressure of exceptional circumstances which maybe regarded as a case of
force majeure and analogous to cases 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 witli 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.
Then occurs a statement which I need not read — I am willing to if my
learned friends wish it — but it is a repetition of the reason why they
ORAL ARGUMENT OF SIR RICHARD WEBSTER, Q. C. M. P. 85
ask for 10 miles because of the vessels stopping outside and tbe boats
tliemselves going in.
Then you- will And, on page 14, Lord Eosebery's reply, agreeing in
tins proposal; I need not read much, but, at the beginning of the letter,
Lord Eosebery calls marked attention to Mr. Ghichkine'a statement:
Her Majesty's Government laave given tbeir most careful consideration to the note
of Mr. Chichkine of the 12th (2Ith) ultimo, inclosed in your Excellency's despatch
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 during the
approaching fishery season, and which are submitted to Her Majesty's Government
for consideration with a view to their acceptance.
Those measures consist in:
(1) The prohibition of sealing to vessels not specially authorised within a zone of
10 miles from the Russian coast.
(2) The extension of this prohibitive zone to a distance of 30 miles round Rohben
Island and the Commander Islands.
For the purpose of securing the due observance of these restrictions, it is proposed
that the Russian cruisers should be authorised to pursue and seize all vessels whose
boats or crews have been found fisbiug for seals within the prohibited limits, and
further to pursue and search any vessels whose boats have been seen within those
limits whether actually employed in seal hunting or not. In the latter case the
presence on board of instruments specially employed, in seal hunting or of seal-skins,
the majority of which are those of females, is to beheld to afford suiificient i^resump-
tive evidence to justify seizure.
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.
Then, at page 15, Lord Eosebery undertakes, on behalf of the Govern-
ment, to issue the necessary instructions, and refers to the i^rivilegeof
British vessels resorting to Eussian ports for shelter repairs and sup-
plies; and expresses, as would be expected, the willingness of Her
Majesty's Government to agree in any reasonable arrangement for the
proper protection of seal life. Then:
If these proposals should, as I hope, be agreeable to the Russian Government, I
should be glad to learn at the earliest moment tbeir views as to the limitation which
they would agree to place on the number of seals to be killed on the islands. The
Rei^orts of the British Commissioners as to the care that, as a rule, has heretofore
been taken to prevent anj' excess in this respect on the Komandorski Islands, lead
me to believe that there would be no difficulty in arriving at an agreement on this
point.
My learned friend, Mr. Eobinson, reminded me, and I am very much
obliged to him, because it is important to note, as I shall presently, that
the Eussian Government, as a consideration for Great Britain restrain-
ing the legitimate rights of their sealers, ofitered to reduce or limit the
number of seals to be killed. It appears also in fact on page 15, a little
higher up than that; and these are Lord Eosebery's words:
The Russian Government would further engage that the number of seals to be
killed on the Russian seal islands should be limited to a certain specified number to
be agreed upon before hand, or to a certain proportion, to be equally agreed upon,
of the total number of seals estimated to have resorted to the islands in the season.
The Russian Government would further allow an Agent of the British Government
to land upon the islands for the purpose of consulting with the Russian authorities
on the working and observed results of the arrangement.
Therefore, you will observe that the proposition coming from Eussia
was that, by agreement, there should be a zone of 30 miles and a zone
of 10 miles in order to protect the sealing Islands, an infringement ot
the ordinary territorifil waters; and that, in consideration of those con-
cessions they, Eussia, would limit the number of seals to be killed on
the Island.
86 ORAL ARGUMENT OF SIR RICHARD WEBSTER, Q. C. M. P.
Mr. Justice Harlan. — I do not, from that paper of Kussia, find a
proposal made to limit the uumber of seals.
Sir EiciiAKD Webster. — It is stated by Lord Eosebery.
Mr. Justice Haiilan. — It is not material.
Sir Richard Webster. — I do not think it is. I was reading it per-
haps a little too shortly; but I think it will be found, on looking- at the
papers, that it did; but it makes no ditterence. They agreed to it.
Perhaps it would be more important for us if the suggestion came first
from Great Britain.
Now I will ask the Tribunal to turn to page 22 where they will find
the proposal of Russia dated the Gth of April which led up to the
arrangement to which 1 shall be able to refer very shortly. Mr. (Jhich-
kine, writing on the 6tli of April, says:
lu reply to my note of the 12tli (24tli) February, your Excellency was good enough
to send me a copy of I^ord Rosebcry's despatch of the 17th ]\Iarch in which the
British Government proposes to establish at once a modus vivendi on the following
basis:
1. The British Government would forbid their subjects to fish for seals within
zones of 30 and 10 miles, and would ofl'cr the co-operation of their cruizers to carry
out that measure. The Imperial Govcruuicnt ^\ ould engage to hand over to tlie
English cruizers or to the nearest British antliority the English vessels seized out-
side territorial waters in the above mentioned zones, Avhilst tlie English cruizers
would, in reciprocity, hand over the Russian vessels seized under the same circum-
stances.
I need not point out the reasonableness of that provision, and con-
trast it with what is demanded by the United States in this matter.
• 2. The Imperial Government would limit to a specified number the amount of seals
to be killed on tlie islands.
3. The luiperial Government would authorize an agent of the British Government
to proceed to the islands iu order to confer witli the local authorities as to the work-
ing and result of the arrangement.
4. It would be understood that this arrangement should in no way affect the
facilities hitherto afforded in Russian ports to English vessels for refuge, repairs, or
supplies.
5. The arrangement would not have any retrospective effect, more especially as
regards the English vessels seized last year.
I cannot discuss the subject, M. I'Ambassadeur, without calling your attention in
the first instance to this fact, viz., that the object of my note of the 12th (24th) 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 niodus vwendi, that is to say, of a bi-lateral ari"augement,
which might be prolonged until the question was definitely 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, which has now already begun,
the Imperial Government considered at the date of my note that there would not be
sufficient time to discuss and to establish a modus vivendi, which would necessarily
afiect not only questions of interest, but also questions of principle.
If it had been intended to lay down bases of a modus vloendi 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. They would have especially regarded it as indispensable to
make their rosej'vations 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 re,i;ulation 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, M. I'Ambassadeur, to inform
your I^xcellency that the Imperial Government lieing anxious to meet halfway any
conciliatory ofier on the part of the British Government, are ready to accept the
proposal made in Lord Rosebery's despatch, with the excoxition of some modifications
on the first point.
ORAL ARGUMENT OF SIR RICHARD WEBSTER, Q. C. M. P. 87
Thus, the Imperial Government would be disposed to limit for tlie current year the
number of seals to be killed on the islands to a maximum of 30,000, reducing thus
20,000 the average of 50,000 jirovidedfor in their contract with the sealing Company.
They would not object to an Agent of the British Government coming to the
islands in order to discuss matters with the local authorities, and to obtain informa-
tion from them as to the working and results of the arrangement. The i)lace and
the time of his visit should, of course, be tixed hereafter.
Then :
There would certainly be no modification as regards the facilities which English
A'essels enjoy in Russian ports for refuge, repairs or supplies.
The arrangement agreed upon would have no retrosjiective force, because the
diftereut cases of seizures effected last year have been already examined by a special
Commission on the basis of general principles of international law.
It was that to which I referred to-day when 1 told you that we had
known, though we luid not been able to mention it before, that this ques-
tion of the rights and wrongs of last year had been referred to an Inter-
national Committee and we knew that the Russian distinguished adviser
on international law was a member of that Committee, whose opinion we
have already referred to in connection with this case.
Finally, in regard to the first point of the proposal contained in Lord Rosebery's
despatch, the Imperial Government are of opinion that it would be quite impossible
to apply it as it stands, at any rate iiuder the circumstances existing for the present
fishing season, especially as to the engagement to hand over to the English cruisers
or to the nearest British authority the English vessels caught trespassing outside
territorial waters within the forbidden zones of 30 and 10 miles.
Then occurs a discussion, which I do not think my learned friends
will think it necessary for me to read, with regard to the alternative
suggestion. If they should not happen to find a British cruiser, they
must take the vessel to some other port for that purpose.
Then, at the bottom of page 23, Sir Robert Morier states:
That Her Majesty's Government would not consider themselves justified in hand-
ing over British subjects and property captured outside of bona fide territorial waters
to the jurisdiction of any Government but their own. But there ought to be some
way of turning the difficulty, such, for instance, as a British cruiser being stationed
at Petroijaulovsk or Vladivostock.
Then, on page 24, you will find the draft agreement, which is, I
believe, the agreement that has been entered into; I do not remember
any modification of it. If there be, it will appear in the later docur
ments; and I read the first paragraph:
During the year ending the 31 December, 1893, Her Britannic Majesty's Govern-
ment will prohibit British subjects from killing or hunting seals within the follow-
ing limits:
a) Within a zone of 10 marine miles following the sinuosities of the Russian
coasts which border on Behring Sea and any other part of the A'orth I'acific Ocean.
b) Within a zone of 30 marine miles round the Komandorsky Islands, and round
TuMnew (Robben Island).
Then :
Her Britannic Majesty's Government Undertake to co-operate with British cruizers
in preventing British subjects from killing or hunting seals witbin the aforesaid lim-
its. British vessels engaged in killing or hunting seals within the aforesaid limits
may be seized either by British or Russian cruizers, but if seized by the latter they
shall forthwith be handed over at Yokohama, or at any port in the British posses-
sions or to the Commander of any British ship of war for trial by the I5ritish
authorities.
That is what was suggested by Sir Robert Morier as a way out of the
difficulty.
The Imperial Russian Government engage to limit to 30,000 the'number of seals
which may be killed during the whole of the year 1893 upon or around the said
Islands of Komandovsky and Inlenew (Robben Island).
88 ORAL ARGUMENT OF SIR RICHARD WEBSTER, Q. C. M. P.
It is agTeed that a British Agent may when so desired by Her Britannic Majesty's
Government, visit tlie said Ishmds to confer there witli the Authorities and to inquire
into the working and resnlts of the present Agreement.
The present Agreement will in nowise affect the facilities hitherto accorded in
Russian ports to British vessels as regards refuge repairs obtaining supplies or other
matters for which they may properly require access.
It is understood that the present Agreement relates solely to the year 1893. It has
consequently no retroactive force of effect — more esjjecially as regards the British
vessels captured previously by Russian cruizers.
Then on page 27 will be fouucl tlie Kussiau reply to tbat draft.
I have the honour to inform you that the Imperial Government while accepting the
draft arrangement annexed to that communication, ijrefer to give it the character of
an exchange of notes, for the following reasons:
Because the too concise wording of the above-mentioned draft would leave room
for certain misunderstandings and perhaps even for complication, 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 in 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 ferritorial waters.
As to our reservations, tliey refer to the points mentioned below:
1. In consenting to hand over to the British authorities the English ships engaged
in sealing within the 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 systems 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 looked upon by us as of an essentially provisional nature, intended to
meet present circumstances,
I pause to note here I tliink notLiug could be more reasonable than
Eussia reserving her position at the present time. We know from the
correspondence that has been printed she had been kept in constant and
close communication with the United States. We know that she
declined to ally herself with the United States in their contention; and
this question is now raised before a great Tribunal, and if the result of
this Tribunal should be to declare property in these animals /erte yiaturce
on the high seas or to declare the right of a nation to exercise these
extraordinary rights of seizure and search, it was certainly most rea-
sonable that Russia should not have bargained herself — so to speak
contracted herself out of the opportunity of taking advantage of this
award.
Senator Morgan. — Has there been any comi^laint or is it a fact that
pelagic hunting has existed on the Japanese or Russian coasts by fol-
lowing up the herds before they reached the lands.
Sir Richard Webster.— To a certain extent, but not much practi-
cally speaking, though there was some, as appears. Until the modus
Vivendi the pelagic sealers had not gone across to the western side of the
ocean.
Mr. Phelps. — Will my learned friend allow me to ask him from what
he infers the Russian Government declined, as he says, to participate
with the United States on the ground they did?
Sir Richard Webster.— The letter has been read and it is printed
at page 22. The date is the 10th June, 1891.
Mr. Phelps.— That I am aware of.
Sir Richard Webster.— It is from Sir Robert Morier to Lord Salis-
bury, and it stated the question of seal hunting in the Behring Sea had
formed the subject of continuous negotiation between the United States
Government and his own for a very considerable time and many j)ro-
ORAL ARGUMENT OF SIR RICHARD WEBSTER, Q. C. M. P. 89
posals liad been submitted to him by the United States Department, to
none of which, however, had he been able to give his assent. There
are other letters, though they are not stronger than that.
Mr. Carter. — Are there any others that have any value?
Sir Richard Webster. — Yes, there are, and 1 will give my learned
friends references to the others, should they desire to know those which
I rely upon, but I am quite satisfied with that I stated from the cor-
respondence to which attention was called this morning and from this
correspondence, it is perfectly i^lain and quite proper that Russia while
declining to endorse the view taken by the United States was naturally
willing and anxious to reserve to herself the benefit of this discussion,
should it turn out the United States were right.
Then, if you will kindly look at the bottom of page 27:
With these reservations, wo accept the British proposal iu the following terms.
There is no alteration in the terms which I read; and the final assent
is given on the 29th of May, 1893, by Lord Rosebery to Mr. Howard :
With regard to the reservations made in Mr. Chichkiue's note yon will state that
Her Majesty's Government have taken note of them, but do not at present propose
to discuss them; that, on the other hand, they must adhere to the reservation pre-
viously made by them, and contained in your note of the 12th of this month, and that
it is understood that the riglits and position of either Power are in no way affected
by tbe conclusion of this provisional arrangement.
Now, Mr. President, on page 29, appears the assurance or answer
from Sir Robert Morier, in consequence of which, as Mr. Phelps
informed the Tribunal, Lord Rosebery last week introduced the Bill to
give efiect to this modus vlvendi; for, without the consent of Parliament,
the rights of British subjects cannot be interfered with on the high seas.
And it was on that occasion, as Mr. Phelps rightly stated, that Lord
Rosebery, not being then in a position to announce the satisfactory con-
clusions with reference to the claims made by Great Britain, stated
that the matter was under discussion ; but it is the fact, as tlie Attorney-
Geueral has told you this morning, since then, having fully investi-
gated the matter, Russia has adopted that line which was in accordance
with all her previous actions, for she stated, as appears by this corre-
spondence, that no vessels had been illegally seized because they were
within the 3 miles or had just gone out of itj and, in accordance with
that, she has acted throughout.
Senator Morgan. — Is it intimated in this correspondence, or is there
any action of the Government, as to how far the Russian Government
would have been authorised to follow those vessels after crossing the
line?
Sir Richard Webster. — I do not know; but I really speak without
having looked up the subject lately,— I do not think that there is any
limit of distance as to hoi pursuit. I know that the question has been
raised whether you can follow them into other territories, — I know it
has been raised with reference to the high seas; and I should think
you can go for 40 or 50 miles in hot pursuit. I am now sijeaking of
matters that have come before me when I was Attorney-General, with
reference to France and Germany, where the right was recognised to
follow vessels that had broken the Fishery Conventions on the high
seas.
Senator Morgan. — Would not that rather be. Sir Richard, ex pro-
pria vifjoref
Sir Richard Webster. — Well, I should hardly say that, Sir; but
by the assent of Nations to the arm of the law being stretched. I do
jiot tliink it would be quite right to say it was done ex projyrio v'ujore^
90 ORAL ARGUMENT OF SIR RICHARD WEBSTER, Q. C. M. P.
though I agree it is an extension of municipal law. That was a point I
endeavoured to argue before you, and I hope made clear, some few
days ago.
From beginning to end of these transactions there is no foundation
for the statement made in the argument that Eussia was exercising
these rights in support of the same principles as the United States were
claiming in 1886 down to 1892 — they had certaiidy as strong a case as
to original jurisdiction. If the United States had a good case up to
that boundary line to the east of it, Kussia had the same case to the
Avest of it, but we know from this and from everything that has gone
before that no such case was made by them. But I ask you. Sir, not to
forget when I come later on to discuss this question of zone that with
the fullest knowledge of the matter and investigation upon their Islands
Russia has come to the conclusion a 30 mile zone is sutlficient and is
only required in consequence of special circumstances and tliat a female
seal when actually at the Islands are never to i)e found tar from the
islands and even in cases in which it is evident the Russians think
during a certain portion of that time they go for food — it is obvious
that the opinion of the Russian otficials is that during a portion of the
time the female seals go out for food, so that I am justified from an
impartial view in one sense, and on the other hand an interested view —
on looking at the matter fairly — in saying that an arrangement has
been come to which is a corroboration of the case the Attorney General
pointed to this morning I pass from that incident. The real importance
of it was that the Tribunal should have the real facts; and as, inter-
locutorily, my friend Mr. Carter spoke of us introducing fresh evi-
dence, I do not agree that that is the right view of the matter. The
Tribunal wislies to have the real facts and from those real facts it will
be seen we submit that the assumption or inference drawn by the
United States as to Russia's action was not well founded.
Now, Mr. President, I desire to supplement what has been said by
the learned Attorney General with regard to the question of area as
brieily as I possibly can. I must not, I am afraid, pass over the sub-
ject altogether because as I indicated to you it is an important ques-
tion. While it is for this Tribunal to decide the ambit of its own
jurisdiction and the terms of the Treaty, it yet is of extreme impor-
tance (having regard to what may be said hereafter as to the conduct
of the two nations in dealing with this matter) that this question of area
should be fully and clearly (but I hope not at too great length), dis-
cussed before the Tribunal. My friends remind me that I had not read
the telegram received from the Foreign Office this morning; but the
learned Attorney General read it.
Mr. Carter. — Yes, and he read it without giving us the opportunity
to object to it which we regretted. But we do object to it and do not
consider it in.
The President. — I consider you may make use of whatever ]»ublic
documents you have, because those we all know. You cannot use them
as evidence, but as general information ; but as to documents which are
not public I think you cannot use them unless they have been inspected
by the other side.
Sir Richard Webster. — The objection of my friend (I say it in all
seriousness), if he will only think for a moment, does not amount to
anything. It is not a question of what may be called public docu-
ments, although it will be a public document before twenty-four, or
forty-eight hours have passed.
Mr. Carter. — It is a telegram.
ORAL ARGUMENT OF SIR RICHARD WEBSTER, Q. C. M. P. 91
Sir EiCHARD Webster. — Tkuow; but yon do really have telegrams
sometimes. The fact is that Ilussia insists upon her right to seize ves-
sels whose boats have actually been sealing in territorial waters, and
does not insist, but on the contrary pays compensation to those vessels
whose boats they could not prove to have been inside territorial waters.
What complaint there can be, I cannot understand.
The President. — Of course we do not doubt your assertion per-
sonally, but it is a personal assertion.
Sir Eichard Webster. — You must not say my personal assertion,
Sir.
The President. — You bring- it personally forward.
Sir Eichard Webster. — You will be good enough to understand.
Sir, that it is not my personal assertion — it is a statement made by the
learned Attorney General speaking of a communication made to him in
his official capacity from the Foreign Office. You must not put it on
me — I mean to say a communication would not come to me — it came
to the learned Attorney-General, and was read by him.
Mr. Carter. — We must not admit the right of Counsel on the other
side to read communications (by whatever name they may be called)
merely from the Foreign Office of Great Britain. They are communi-
cations perhaps stating facts which may be deemed of greater or less
importance to the inquiry here, and facts therefore which it may be
necessary for us to meet. We have not a Foreign Office within twelve
hours communication. We cannot communicate with Eussia for the
jjurpose of ascertaining what the full facts were.
It certainly will not be permitted by this Tribunal, I should supi^ose,
that a partial view of facts may be presented here without any oppor-
tunity to the other side to make that view full and complete — that
surely is not the way in which the question should be brought before
this Tribunal. Therefore we feel bound here to object generally to the
introduction of new evidence which certainly must be considered to be
irregular; and inasmuch as no provision is made for it by the Treaty —
and it is particularly irregular as we think for Counsel to get up on the
other side and offer new evidence without even asking the jiermission
of the Tribunal for doing so — getting it in simply without provision,
before the Tribunal, for what it is worth. That of course we must be
understood most distinctly objecting to, and hope it will not be
permitted.
Sir Eichard Webster. — I would rather abstain from answering
any complaint of my friend Mr. Carter. I have not, by my assertion —
nor has my learned friend the Attorney General sought in any way to
introduce fresh evidence. He has simply sought — and I should submit
to the Tribunal for their judgment ijroperly sought — to remove an
impression which would have been made upon the minds of the Tri-
bunal, by a passage in Mr. Phelps' argument for which we knew there
was no foundation.
Mr. Carter. — If there was no foundation for it, that could easily be
shown.
Sir Eichard Webster. — But I say — my friends have the fullest
notice now — if we had made any mistake, they have the same means
of communication that we have.
Mr. Phelps.— With the Foreign Office?
Mr. Tupper. — With Eussia.
Sir Eichard Webster. — With their own Foreign Minister in Eus-
sia. But really, Mr. Phelps, I am sure you will understand what I
mean — that there is no ground for the suggestion that my learned
friend the Attorney General, (in stating that which he knew to be the
92 ORAL ARGUMENT OF SIR RICHARD WEBSTER, Q. C. M. P.
fact officially), was doing otherwise than giving you the earliest friendly
notice, according to our view, that a mistake had been made in the
inference you attempted to ])ut on certain acts in your argument
which for the first time he told us we saw when that argument was
presented.
Mr, Carter. — We take a wholly different view.
The President. — I think we should maintain a distinction between
documents which are j)ublic. If you mejition that which is merely
mentioning any fact or statement from a public paper, it is for us to
consider the importance that should be attached to it; but as to other
documents not public which are altogether i^rivate or almost private —
that are official and confidential, at any rate, communication from your
government to Counsel, I think we must reserve our opinion on that,
and upon the use you may personally be going to make of them, until
those documents or communications have been communicated to your
friends on the other side and inspected by them.
Sir Richard Weester. — I entirely agree if I maybe allowed to
say so; I only desire to point out that the communication to the Attor-
ney General was only the fact of the telegram being receired or com-
munication being received officially from Russia — just in the same man-
ner as this book that I hold uj) — although it has not become a Parlia-
mentary x^aper. But I follow you. Sir, in what you say, and I will take
care that as far as possible it shall not rest upon that statement of the
Attorney General or any document which is not equally at the disposal
of my friends. There will be ample time. The distinction you have
drawn is of course a most imi)ortant one, Sir, and one which at any rate
I should not have overlooked, but I again point out that it is in order
to remove a false impression not established by what I may call, shortly,
the facts of the case.
The President. — We have perfect faith in your intention.
Mr. Phelps. — My friend should understand now that I shall main-
tain in the close of this argument, the absolute correctness of every
thing that is there said in respect of the action of Russia; and, not the
least, from the very correspondence that we have permitted them to
introduce to-day.
Sir Richard Webster. I am perfectly willing that my friend.
The President. — I think we had better let Mr. Phelps argue tha
in his turn.
Sir Richard Webster. — I was about to make that observation. I
cannot preclude my friend Mr. Phelps from arguing every thing; I have
given him the fullest materials uj^on which to support his contention if
he can.
j^ow, Sir, when you were good enough to make that observation to
me, I was about to argue, and to argue for a very short time as briefly
as I possibly can, the question of jurisdiction.
Senator Morgan. — Before you proceed to that, is this agreement of
Russia to pay damages part of the modus vivendif
Sir Richard Webster. — ISTo, quite independent — it is kept inde-
pendent by both. It is stated in terms that the modus vivendi is to
have no operation on the seizures last year which were to be governed
by the ordinary principles of International law.
It is uuderstood that the present Agreement relates solely to the year 1893. It has
consequently no retroactive force or eifect — more especially as regards the British
vessels previously seized by Russian cruizers.
Neither Great Britain nor Russia wished or intended to put that as
operating with regard to those seizures — they desired that that should
be outside. May I be x^ermitted to remind you again that the question
ORAL ARGUMENT OF SIR RICHARD WEBSTER, Q. C. M. P. 93
ofliability of Eussia was referred to a Committee; aiul it was not (this
appears iu these. documents), until after that Committee had reported
that the decision was come to.
I must not be tempted to make any further incursion on my time or
upon the time of the Tribunal by referring to the observation of Mr.
Phelps. I pass at once to the point to which I invite a few minutes
attention, and that is as to what is the area over which the Regulations
are to be made.
Now I begin by saying that if it is desirable to consider the whole
question of seal preservation, most imquestionably the area outside
Behring Sea as well as the area f«.s/rfe Behring Sea, ought to be con-
sidered; and not by one single word of mine do I mean to. —
Senator Morgan. — Do you mean that is within the powers of the
Tribunal.
Sir EiCHARD Webster. — ISTo, I say it is not witliin the powers of
this Tribunal — I say it is a general question of dealing with seal life
as a whole which ought to be dealt with by anybody who is discussing
the whole question.
Senator Morgan. — How can we deal with it unless it is within the
Xjowers of the Tribunal?
Sir EiCHARD Webster. — It is contended by us Senator that it is
not within the powers of the Tri])unal. It has been argued by my
friend that it is not. He asked me to present to the Tribunal any addi-
tional observations that occurred to me on that question of area and I
was about to present to you some observations and submit them to
your judgment, to show that the ambit of Article VII is the same as
the ambit of Article VI — in other words that the ambit of Article VII
relates to regulations to be made in some part of Behring Sea east-
ward of the line of demarcation detined by the Treaty of 18G7.
Nobody will at any rate accuse me, I am sure, of desiring in any way
to oveilook or minimise or belittle the difficulties which are in my way.
I quite agree if you simply look at the language of Article VII by
itself without reference to the rest of the Treaty, without reference to
the other arguments words used at the same time, or without reference
to the real questions which had arisen between the parties, then you
might say the words are sufficiently large. But as a question of con-
struction I am submitting to the Tribunal that the ambit of Article VII
Avas intended to be the same as that which had been the subject of
discussion and dispute between the parties, and which is covered by
Article VI.
I must, 1 am afraid, refer to a very few documents. I will ask the
Tribunal to be good enough to follow me with them that I may be as
brief as I possibly can. I will ask them to take the United States
Appendix, volume I; and I will refer only to documents in that book,
Avitli one very brief exception. At page 28G the letter under date
of the 17th of December, 181)0, from Mr. Blaine they will lind the first
form of Article VII. It was then the 6th question and it is well that
I should read to the Tribunal what the first form of Article VII was :
If the determination of the foregoing questions shall leave the subject in such
position that tlie concurrence of Great Britain is necessary in prescribing regula-
tions lor the killing of the fur-seal in any part of the waters of Behring Sea, then it
shall be further determined: First, hoAV far, if at all, outside the ordinary territo-
rial limits it is necessary that the United States should exercise an exclusive juris-
diction in order to protect the seal for the time liA^ing upon the islands of the United
States and feeding therefrom. Second, whether a closed season (during which the
killing of seals iu the waters of Behring Sea outside the ordinary territorial limit
shall be prohibited) is necessary to save tjie seal-iishin^ industry, so valuable and
94 ORAL ARGUMENT OF SIR RICHARD WEBSTER, Q. C. M. P.
important to mankind, from deterioration or destruction. And, if so, tliird, what
months or ])arts of montlis sliould bo included in such season, and over "what waters
it should extend.
There will be found in that letter, Mr. President, other passages sup-
T)ortiug our views; but in tlie interest of that brevity to which, I have
alluded very often I am going to keep very closely indeed to this mat-
ter and refer only to the most important passages. So far, I submit, it
cannot be successfully disputed that the question distinctly pointed to
Behring Sea or a part of Behring Sea, and had no reference to regula-
tions outside Behring Sea.
That form of question was objected to by Lord Salisbury on the 21st
of February, and in view of the suggestion that by the terms of the
treaty we are supposed, to have enlarged that question I will ask the
Tribunal to look at the language in which that question was objected
to. 1 refer to page 294 of the same volume, reading from the letter of
the 21st of February, 1891, just before the end of the letter.
The sixth question, which deals with the issues that will arise in case the con-
troversy should be decided in favor of Great Britain, would perhaps more iitly
form the substance of a separate reference. Her Majesty's Government have no
objection to refer the general question of a close time to arbitration, or to ascer-
tain 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 the United
States.
On the 14th of April, at page 295, you will find the sixth question
repeated by Mr. Blaine, with this comment in the beginning:
While Lord Salisbury suggests a different mode of procedure from that embodied
in the sixth question, the President does not understand him actually to object to
the (question, and he therefore assumes that it is agreed to.
Then, Mr. President, Mr. Blaine again repeats the sixth question in
the same terms as before, containing in it the words:
in any part of the waters of Behring Sea, then it shall be further determined : First,
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?
Second, whether a closed season (during which the killing of seals in the waters of
Behring Sea outside the ordinary territorial limits shall be prohibited) is necessary
to save the seal-fishing industry, so valuable and important to mankind, from dete-
rioration or destruction? And, if so, third, what months or parts of months should
bo included in such season, and over what waters it should extend?
On the 3rd of June, 1891, page 305, Sir Julian Pauncefote proposes
the commission of exi^erts, which, as you are aware, subsequently took
the form of the two commissioners nominated by either party.
In lien thereof they propose the appointment of a commission to consist of four
experts, of whom two shall be nominated by each Government, and a chairman who
shall be nominated by the Arbitrators. The Commission shall examine and report
on the question which follows :
For the purpose of preserving the fur-seal race in Behring Sea from extermination,
what international arrangements, if any, are necessary between Great Britain and
the United States and Russia or any other power?
On the 4th of June, page 307, Mr. Wharton, writing to Sir Julian
Pauncefote — when, as you will see Mr. President, there was no dispute
about the question at all — uses this language. I read from page 307,
the 5th line from the top :
I am also directed to remind you that the contention between the United States
and Great Britain has been limited to that part of Behring Sea eastward of the line
of demarcation described in our convention with Russia, to which reference has
already been made, and that Russia has never asserted any rights in these waters
afi'ecting the subject-matter of this contention, and can not therefore be a necessary
ORAL ARGUMENT OF SIR RICHARD WEBSTER, Q. C. M. P. 95
party to these nefrotiations if they are not now improperly expanded. Under the
statutes of the United States the President is authorized to prohihit sealing in the
Behring Sea within the limits described in our convention with Russia and to restrict
the killing of seals on the islands of the United States, but no authority is conferred
upon him to prohibit or make penal the taking of seals in the waters of Behring Sea
westward of the line referred to or upon any of the shores or islands thereof. It was
never supposed by anyone representing the Government of the United States in this
correspondence, or by the President, that an agreement for a modus vivendi could be
broader than the subject of contention stated in the correspondence of the respective
governments.
I need not remind yoa, Mr. President, the modus vivendi are tempo-
rary regulations — regulations for 1891 and regulations for 3892.
Negotiations for an arbitration have been proceeding between the United States
and Great Britain, and, if these powers are competent to settle by this friendly
method their respective rights and relations in the disputed waters upon a perma-
nent basis, it would seem to foHow that no question could arise as to their compe-
tency to deal directly with the subject for a single season.
That is, of course, my point put very graphically and clearly by Mr.
Wharton.
On the 9th of June, page 312 of the same volume —
Lord Hannbn, — We have had all these, you know. I see every pas-
sage has been scored by me as already read.
Sir Richard Webster. — I will accept the hint, my Lord. I am
extremely obliged for a hint of tli^ kind; and whatever may be the
conseqnences to myself I am quite satisfied, I may say, to take the sug-
gestion made by any member of the Tribunal.
The President. — Do you not believe the limitation put by Mr.
Wharton in this dispatch of June 4th, related merely to the preroga-
tive of the President?
Sir Richard Webster. — Certainly, Sir.
The President. — And you say the modus vivendi practically entered
into afterwards had been submitted to the Senate"?
Sir Richard Webster. — But that also was limited to the same
area.
The President. — The point of Mr. Wharton is that the President
could only make regulations temporary for the Behring Sea.
Sir Richard Webster. — You will observe. Sir, that the modus
vivendi which goes to the Senate goes no further. The modus vivendi
does not go outside Beliring Sea at all. That is my view.
The President. — All these treaties went to the Senate when they
had nothing to do with the power of the President.
Sir Richard Webster. — I entirely agree, Mr. President. I point
out that the modus vivendi^ to which you have referred, which went to
the Senate, limited the damages to be paid and limited the remedies
to be given to the respective Governments to the area of Behring Sea.
S'enator Morgan. — Do you mean the first or the second?
Sir Richard Webster. — Both of them — both in 1891 and in 1892.
Senator Morgan. — I am not aware that the one of 1891 went to the
Senate.
Sir Richard Webster. — Then I correct that with regard to that
one going to the Senate.
Senator Morgan. — The one of 1891 did not go to the Senate, but
the one of 1892 did go to the Senate, and was incori^orated in the
treaty.
Sir Richard Webster. — My mind is entirely acting ujion the same
line. Whether 1 am right or wrong I have no right to say.
96 ORAL ARGUMENT OF SIR RICHARD WEBSTER, Q. C. M. P.
The President. — I think there is a distinct intimation in the letter
of Mr. Wharton, at page 315, that the preservation is to be extended
to the North Pacilic Ocean.
Sir EiciiAiiD Webster. — Becanse, Mr. President, you will remem-
ber that there was proceeding at the same time the collateral line of
negotiation with regard to an arrangement to which all the interested
nations should become parties. You have to consider most carefully
whether the letters which are referred to relate to the discussion
between the United States and Great Britain solely, or relate to that
other negotiation which was going on all the time.
Would you kindly look. Sir, to the letter you have been referring to,
page 316.
Mr. Wharton to Sir Julian Pauncefote.
Department of State, WasMngton, June 13, 1S91.
Sir: Tho President dii'ects me to say, in response to your note of this date, that
his assent to the proposition for a joint commission, as expressed in my note of Juno
9, was given in tlie expectation that hotli Governments would use every projier
effort to adjust the remaining points of difference in the general correspondence
relating to arbitration, and to agree upon the definite terms of a submission and of
the appointment of a joint commission without unnecessary delay.
Therefore I submit that independently and collaterally to the agree-
ment which affected Great Britain, and affected the United States
alone, there was this parallel line of negotiation; and my reply to that
reference to the North Pacific, Sir, is that you will iind the North
Pacific referred to many times, and referred to by nobody more i)oint-
edly than by Lord Salisbury, at a time when he was desirous and at a
time when Mr. Blaine on behalf of the United States was not desirous
that the whole question should be dealt with in the way of arrange-
uient between the United States, Great Britain and other nations who
were to be interested in the matter.
That is my answer to the i)oint to which you were good enough to
call my attention. I submit you will not forget, Sir, that the United
States Government did not attemj^t to go outside Behring Sea until
this year. It was only in this year, 1893, attendiug the sitting of this
Arbitration, while the Arbitrators were actually sitting, that a bill
was passed to enable the President to give effect, so far as United
States citizen's were concerned, to any award made by this Tribunal.
Therefore, the action of both countries, both Great Britain and the
United States, points to the fact that up to the time of the delivery of
these arguments, the suggestion of the Tribunal being seized of the
control of matters outside Behring Sea had not, at any rate, as we
submit, formed the subject of agreement or even of discussion between
the parties.
I equally agree — I have said so more than once, if you merely take
the language of article 7 quite apart from the other articles of the
treaty, quite apart from the fact that you are dealing with questions
which have arisen concerning the preservation of the fur-seal in or
habitually resorting to the said sea, if you will look at the language of
article. 7 apart from that, the terms would seem to be wide enough to
give you power to go below.
Senator Morgan. — The same terms are used in article I.
Sir EiCHARD Webster. — I quite agree, sir; and that, of course,
does not militate against my point, Avhether it be a good point or
whether it be a bad point.
Senator Morgan. — I had su])posed when the treaty came to be for-
mulated and the text was finally determined, that the question was
ORAL ARGUMENT OF SIR RICHARD WEBSTER, Q. C. M. P. 97
changed from one of geographical boundaries limited by Behring Sea
to one rehitiug to a class of seals that were in or habitually resorting
to Behring Sea, and that therefore the powers of the Tribunal were
extended to such regulations as might be sufticient and proper for the
protection of all that class of seals.
Sir Richard Webster. — Mr. Senator, I cannot help saying — I say
it with all respect — that I think any such view would be, looking at it
broadly, a one-sided and unfair view. The United States within their
rights, for reasons best known to themselves, had said, "We will not
allow you to bring before the Tribunal as a matter of regulation any-
thing upon the islands". The United States, for reasons best known
to themselves, endeavored to withdraw from the Tribunal even the
consideration of what was going on upon the islands. They have pro-
tested that it is immaterial except so far as it bears on the question of
decrease. They could not, of course, shut our mouths with regard to
that part of the case; but they said, "Regulations upon the islands as
such cannot be made", and the Attorney-General agrees, and I of
course agree, that that is so. But it is equally certain that regulations
might be necessary for the preservation of the seal species upon the
islands. It is perfectly plain they might be necessary, as, for instance,
if the lease pernutted much too large a number to be killed. Suppos-
ing the 100,000 a year should turn out to be much more than ought to
be killed on the islands. There is nothing more unreasonable in the
area outside Behring Sea not being submitted to this Tribunal any
more than the question of regulations on the islands being submitted.
Senator Morgan. — Regulations on the Islands, Sir Richard, were not
even the subject of negotiation.
Sir Richard Webster. — I beg Senator Morgan's pardon, with great
deference. I do not desire to go back upon that; but I could point out,
if I were to go into the whole of this correspondence, that in the earlier
stages that it*was suggested on behalf of Great Britain, and objected
to by the United States.
Senator Morgan. — But it was abandoned.
Sir Richard Webster. — But that is my whole point, Mr. Senator.
You do not shut it out from the area of investigation when it has been
abandoned.
Senator Morgan.— I thought it did.
Sir Richard Webster. — Well, you shut it out from being that which
was to be dealt with by the parties, but it is clear that the original con-
ception of Sir Julian Pauncefote was that the whole question of seal
life should be examined into, and I must not be tempted by what you
have said to me but I must remind you that the Commissioners in 1891
put it beyond all question that Lord Salisbury did instruct the British
Commissioners to go into the whole matter.
Senator Morgan. — That was before the Treaty was signed.
Sir Richard Webster. — But it would not make any difference. Sir.
May I remind you. Senator Morgan, that when we were arguing some days
ago with regard to the question of the function of the Commissioners,
you then put to us that it was all in view of the treaty. Now when I
remind you of this power of the Commissioners, you say it was before
the treaty was signed. I only ask the same rule may be apidied in
both cases.
I will not pursue that further. I will go at once to my point, if I can.
1 only say, with great respect, to every member of this Tribunal, that as
between the parties, what was submitted to this Tribunal was jurisdic-
tion over and regulations in Behring Sea, and that the United States
. B S, PT XIV 7
98 OEAL ARGUMENT OF SIR RICHARD WEBSTER, Q. C. M. P.
withdrew, properly if you like — I care not whether properly or improp-
erly withdrew within their rights direct jurisdiction over the islands j
and I say equally that Great Britain never submitted, if that is the
j)roper expression, jurisdiction as to regulations outside Behring Sea.
Senator Morgan. — I did not insist upon that. I insisted that both
Governments had agreed that this Tribunal might take cognizance of
the necessary measures for the protection of fur-seals in or habitually
resorting to Behring Sea.
Sir KiCHARD Webster. — If you were to take those words by them-
selves, they would include the islands. If the words were to be strained
against me in that way, it would actually include the" islands. The
measures which are necessary to preserve the seals —
The President. — But there are other words.
Sir Richard Webster. — I say if you were to take the words the
learned Senator puts to me by themselves, it would have included the
islands.
Senator Morgan. — Not unless the Sea means islands. I do not see
how they could.
Sir Richard Webster, — I must not appear to be arguing with you
too much, Sir; but I will call attention to the "proper protection and
preservation of the fur-seal in or habitually resorting to Behring Sea".
Now, if the words had not followed, "What concurrent regulations
outside the jurisdictional limits of the Governments are necessary", then
the words which you were good enough to call my attention, namely,
" regulations for the preservation of the fur-seal frequenting the islands"
would have included the islands as well. It is for that reason, Sir,
that I press upon this Tribunal that whatever may be the construction
they put upon Article VII, which was entirely within their own power,
I cannot do more than suggest the view that we contend for to them,
whatever construction they put upon it : viz that Great Britain in agree-
ing to this Treaty, was neither told, nor believed, that th'ey agreeing to
submitting regulations outside of the Behring Sea to Arbitrators.
I have said all I intend to say upon the matter, because it has been
fully argued; and it was only delierence to the wish of my learned
friend, the Attorney- General, that I referred to the matter at all again.
Senator Morgan. — I know you will pardon my desire to ascertain
exactly what are the powers of this Tribunal because I do not wish to
exceed them in any case or under any circumstances. This is all I am
addressing my remarks to.
Sir Richard Webster. — Now, Mr. President, I shall not refer again
to the question of area ; but I will ask you to permit me to deal with
Behring Sea first; because whatever be the view, that which gave rise
to the discussion, that which called for this Treaty, that which the
United States sought to interfere with, was Behring Sea. And I cannot
help thinking that upon this question — it is not a matter which you will
lose sight of at all — that up to this day they have never moved hand or
foot to interfere with their own nationals and their own ships that were
sealing outside Behring Sea, almost to as great an extent as the vessels
of other nations. Therefore I shall not be doing wrong if I direct the
attention of the Tribunal as closely as I can to tlie question of Behring
Sea.
Mr. President, I propose to state the propositions to which I am going
to address my argument. I have formulated them because, as I indicated
to you early this afternoon, I believe no living man, certainly no man
with my capacilies, could possibly hope with effect to address the Tri-
bunal ux)on every issue in this case. Every single matter has been
ORAL ARGUMENT OF SIR RICHARD WEBSTER, Q. C. M. P. 99
picked out and made the subject of voluminous affidavits, without the
least regard to whether it was of great importance or not; and I hope
to concentrate the attention of the Tribunal upon the important points.
I accept the two cardinal principles recognized by the British Com-
missioners in their most impartial and fair report — a report which never
ought to have been attacked as it has been — that no gravid female
ought to be killed, so far as it can reasonably be avoided, and that no
nursing female upon whose life of the pup depends, ought to be slaugh-
tered, or injured in any way.
Those are the two principles upon which I propose to argue this ques-
tion of regulations. Do not let it be thought that I make those con-
cessions from the point of view of one course being cruel and the
other not. I trust that I have as strong a feeling upon the question of
cruelty to animals as anybody living; but I shall demonstrate, I trust,
before I come to the end of the argument on the question of regula-
tions, that the outcry, the prejudice, that has been endeavored to be
imported into this case from the point of view of cruelty, the exagger-
ated color which has been given to incidents that do occur or have
occurred in the past, is wholly unjustifiable and unwarranted, and that
when you look at the real facts, we have nothing- to fear from an exami-
nation of this case from the point of view of cruelt3\ 1 merely men-
tioned that. Sir, that you may not think that I am shrinking from any
onus or burden that may rest upon me in enunciating these propositions.
1 do not enunciate them upon any consideration from the point of view
of cruelty. I look ui)on them, so far as a counsel may look upon them,
in the point of view of what ought to be provided.
It seems to me that upon the simj)le principle that has governed and
controlled the game laws of all civilized people, the killing of a female
which is about to bring forth its young, or upon whose life the lives of
the young are dependent, is a matter which no Tribunal would endorse
by recommendation, and that therefore the contrary of that what would
commend itself to the mind of this Tribunal.
From that point of view. Sir, what do I propose to establish? I pro-
pose to establish on testimony quite independent of any rei)ort which
has been disclosed to us during the course of these proceedings; —
although I shall not hesitate to make plain what has been the conduct
of the United States in connection with Elliott's report — I propose to
establish upon our evidence which was obtained long before we had
seen or knew of the contents of Mr. Elliott's report, the following pro-
positions: that the thick zone of seals is near the islands; that is to
say that the zone in which the seals ought to be preserved by their
numbers, and ought to be left undisturbed, is to be found near the
islands; that outside a zone of twenty miles, the seals are compara-
tively sparse, that is to say, as compared with the numbers that are
inside the twenty miles, very sparse indeed; but that outside the zone
of twenty miles, they become so sparse that they may be taken to be
scattered seals, as distinguished from what I may call numerous, or
seals in large numbers; and in that connection I wish to submit to the
Tribunal that a zone of thirty miles, for reasons which I shall call atten-
tion to upon the evidence, being the same distance which has been, as
you know, already the subject of negotiation between Russia and Great
Britain, gives a margin of very great safety. Add to that the obser-
vation already made by my learned leader, that all these zones have
attached to them, ex necessitate, another margin which may be \n\t at
twenty-five to fifty per cent, due to the absolute necessity of the per-
sons who have to respect the zones not tresx)assing within them.
100 OliAL ARGUMENT OF SIR RICHARD WEBSTER, Q. C. M. P.
So much for what I propose to establish as to the question of the
population of Behriug Sea by seals. I then proi)ose, Sir, to establish
that as a rule the seals do not feed while resorting to the islands. 1
must not be mivsunderstood or my language must not be so framed that
my learned friends can merely quote it without fully apineciating what
I mean. I am not suggesting that occasional seals may not go out and
get food. I am not suggesting that early in the year before they go to
the islands, and later in the year, even though they may be going back
again for a small })ortion of time, two or three days, that they never
feed, nor anything of that kind. My case is that speaking of the seals,
both male and female, while they are upon the islands as distinguished
from being in the Sea, they do not feed. They go in the water con-
stantly while they are upon the islands. We know that practically
every seal upon the islands, other than the bulls, goes into the sea.
But the important contention will be upon tlie evidence that the seals,
speaking of them as animals Avhich are for the time being out of the
water and on the land, do not feed.
Next I shall endeavour to establish that from three to four weeks
certainly, I know that there is some evidence of a rather less length of
time, but that from three to four weeks after the birth of the i^up the
females do not go into the water again, or, in other words, that for a
period of from 17 days as a minimum up to four or five weeks as a
maximum, although the work of the nutrition of the pup is going on
during that time, although possibly the growth is more rapid then tlian
at other times the mother is able to supply the milk without obtaining
any food other than that which her own condition gives. That is by
no means unknown altogether in natural history, 1 only mention that
by the way, but that the Tribunal may understand my case in regard
to that matter I repeat, speaking of the females, it a])pears that from
three to four weeks after the birth of the pup, the mother does not go
to the sea for food.
Lord Hannen. — In order that I may gather precisely your meaning
what other mammal is there known where under those circumstances
the female does not feed.
Sir Richard Webster. — Both the other races of seals which is the
nearest possible the hair seal and I think the harp seal, but there is evi-
dence about them my Lord, and ap])arently the walrus and I rather
think the sea lion; there are, four or five of this group of animals that
have this peculiarity, or rather feature, because I do not think it is
right to call it a peculiarity. I subn)it the i)eriod of 17 days or what-
ever it may be is quite as remarkable as any other period.
Lord Hannen. — 1 cannot agree to that. A 17 days' fast is not as
remarkable as 10 days.
Sir Richard Webster. — Ko, but then I had not said 10 days, my
Lord. I only said from the point of view we are considering the animal
must have drawn on some internal lesources during that 14, 15, 10 or
17 days. I think there can be no doubt about it. Your Lordship does
not desire that 1 should argue the point now?
Lord IJ ANNEN. — Jn^o, I only wanted to know what was passing in your
mind. You say that the other pinnipeds have the same characteristic.
Sir Richard Webster. — Yes, but I think one can see, when one
comes to consider this question, as fairly as possible, for some reason or
other the habits of this seal necessitate in both male and fennile the
power of self-sustenatiou or support for a considerable period of time.
I think the evidence as to when the pup can support itself is left in a
very uncertain condition. There is substantial evidence that it does
begin to support itself after three or four weeks old, not that it ceases
ORAL ARGUMENT OF SIR RICHARD WEBSTER, Q. C. M. P. 101
from sucking; and probably meinbers of tbe Tribmial will know if tbey
bave studied natural bistory tbat many animals go on sucking for a
long time after it is unnecessary. It is not unknown witli Ibur-footed
animals, and I believe also, not unknown witb otbers — it is known witb
regard to descendants of tbe liuman race. It is a fact. It is a fact,
and you sbould by no means draw tbe conclusion tbat pups cannot
sui)port tbemselves, because wben killed tbey bave milk in tbem.
A striking instance of tbat was given by my learned friend Mr. Cou-
dert. He said tbe i)ups billed in October or November bad milk in
tliem, and suggested tbat this proved tbat tbey were not able to sup-
port tbemselves because tbey bad milk in tbem, but tbat is at a time
wben, according to all accounts, tbey would be able to support tbem-
selves, because tbey were witbin a day or two of taking to tbe water
for tbeir winter voyage. I submit tbat tbere is no doul)t that as long
as tbere are female seals on tbe land witb milk, some of tbese pups will
suck tbeir motbers wben tbey get the opportunity. I only mention
tbat to sbow bow very uncertain is tbe evidence upon wbicb you would
form a conclusion as to wben tbe pup can support itself is, I tbink,
after 4 or 5 or 6 weeks or two montbs tbe piri^s do feed in tbe sea partly
upon sea animals of tbe small kind and partly u])ou tbe algw or sea-
weed, and are not absolutely dependent on tbe motber but can support
tbemselves very soon after four or five weeks.
I tbink it must be so for anotber reason, wbicb I will expand later
on. Sbortly after tbe Gtb of July, large numbers of pups were found
in otber parts of tbe island ; and it is doubtful if tbeir motbers find them
again. I do not mention tbat for tbe sake of saying tbat tbe motber
has not a natural instinct to come back to tbe pup; but it will be found
to have some bearing upon tbe question whether tbe pu]) is absolutely
dependent on tbe motber after a certain date.
Then, in this connection of food, I shall call attention to tbe very
remarkable evidence wbicb up, to the time of this case, has never been
disputed. It is not a very savoury subject, but it is one wbicb bas to
be examined with some little care; I mean, tbe absence of all excreta
or dejecta from these animals upon tbe Islands.
1 mention tbat, because it is a most remarkable tbing, wben we come
to the United States Case, tbey think nothing of throwing overboard
tbe unanimous testimony and consent of everyl3ody else who has exam-
ined tbe question previously saying that an affidavit made for tbe pur-
X)ose of this case is to be preferred to tbe knowledge of other people who
have independently examined this matter without tlie slightest motive
for saying that which is untrue or to exaggerate it. I shall bave to
call attention to that in connexion witb an incident to which I shall
refer. Then, following out this line of argument I shall call attention
to the fact tbat upon the evidence tbere is abundance of food near the
islands, and further to a very remarkable solution which is endeav-
oured to be given by one of the United States witnesses with regard to
why the females do not take the food near the islands which he admits
to be there in large (|uantities. That is that some males are so busy
catching the fish tbat the female seal knowing that tbere are plenty
catching these fish she goes to a place which is more distant to catch
other fish, because she will be less disturbed than where the males are
near tbe islands. It is a remarkable suggestion and does great credit
to the gentleman who thought it out. I will read that affidavit in
connection with a part of the case to wbicb I have referred namely, the
proof that there is abundance of food near tbe islands, and then I shall
endeavour to make good tbe statement made by the Attorney General
1
that there is substantial evidence leadbig us to tbe belief that tbe
102 ORAL ARGUMENT OF SIR RICHARD WEBSTER, Q. C. M. P.
females killed at long distances from the islands are probably females
in whom the milk is drying up, or wlio have left the islands not with the
intention of returning during that season.
That might be for many reasons, among others, the death of the pup,
which we know occurs, and it is the case of the United States that it
does occur from causes perfectly independent of pelagic sealing, and
also from the fact that the earlier births — pups born in the middle of
June, some even in the earlier days of June — those which are born
before the end of June would be weaned or independent of the mother
some time at the end of July or the beginning of August which may
account as it does for a certain number of females with milk being killed.
It is an important thing to note in the United States aflidavits scarcely
any attention has been called to this question, what was the condition
of the milk found in the mother. As I submit, upon the fair view of
the evidence in which nursing mothers have been slaughtered by
pelagic sealing that might be the reason.
Theu Mr. President you will notice that I have endeavoured to keep
all questions of attack upon the way in which the islands have been
managed quite independently to the end because I want, if the Tribu-
nal will believe in my wish to argue, fairly the question of regulatious
from the point of view of what they ought to be assuming the islands
to be pro]ierly managed — what would be the proper regulations neces-
sary for the preservation of life, that is to say proper regulations at sea
for the preservation of the fur seal.
It cannot be seriously contended that it is necessary to preserve seals
at sea in order that the United States may be able to kill a greater
quantity on land. It would be most unreasonable, it would be most
unjust, it would be most unfair, having regard to the basis upon which
we are arguing this question of Regulations; and, therefore, I submit
that " necessarj^" must mean necessary upon the assumption that proper
Regulations are in force and are enjoined upon the Islands in order to
prevent an undue and improper killing of seals there. In that conec-
tion, I shall have to consider this question; Aye or no, it is true that
the" decrease, such as it is, is due to the action of pelagic sealing? And,
in that respect, I shall have to call attention to the facts which, of
course, must be expanded more at length to show that now you have
the whole facts before you, if you look at what is the real condition of
the rookeries upon the Islands and on the number of males that have
been killed, the size of the skins that have been taken, you can see quite
plainly from the year 1870 or 1880 downwards the rookeries upon these
Islands have been in a gradually waning condition; and that the con-
tention that the observed decrease in the years 1884 to 1890 is due to
pelagic sealing will not stand the investigation of facts now that we
have the facts before us.
Sir, the enunciation of those questions may have seemed a little long.
On the other hand, it will enable you to follow the evidence to which I
proi)ose to keep closely in each case and will, I trust, show the Tribunal
that in considering the scheme of Regulations I shall be able to touch
on a particular subject and then to pass from it. Further I have to
regard this case as a whole from the point of view of considering what
Regulations are really fair.
That is to say not from the point of view of asking you to give any
undue privilege or protection to pelagic sealing, but that you may by
regulation make a suggestion that will prevent any undue or unneces-
sary slaughter of the lives of those animals which it is so necessary to
preserve.
The Tdbunal then adjourned till Wednesday, the 1 4th instant, at 11,30.
THIRTY-EIGHTH DAY, JUNE 14™, 1893.
Sir EiCHARD Webster. — Mr. President, I proceed at once to the
examination of tlie evidence on tlie various subjects which I enumerated
at the close of the sitting yesterday afternoon. The task of the British
Counsel has not been rendered lighter by the action taken by my learned
friends on the other side. We always had a hope that there might
have been a certain amount of approximation and fair discussion
between us as to what I may call the hmits of Regulations; but you
will have observed, from the paper read some days ago by General
Foster, to which paper allusion was made by the Attorney General yes-
terday and which called forth a remark from Mr. Phelps, I have to
justify the whole of my Regulations. It is not a question of degree;
they are objected to root and branch by the United States, who contend
that an exclusive right is to be given to them of capturing these seals,
and that, within the whole of this area, no Regulations are at all com-
patible with the duty imposed on this Tribunal by the Treaty.
Sir, you will not have forgotten the scheme of the Treaty is that, for
the guidance of the Tribunal, there shall be presented to them a joint
and several, Report of the Commissioners, both of the United States
and Great Britain; and in dealing with the various heads to which I
have to direct your attention, I must, of course, in every case see that
I bring before you, inasmuch as it has not been already brought before
you, the contents of the various Reports upon each of these points, sup-
plemented of course, by the evidence which the two countries have laid
before the Tribunal. The first question I propose to address myself to
is, what is the zone of thick seal-life as I shall contend upon the evi-
dence taken fairly as a whole and disregarding exceptional statements?
The thick seal-life is to be found within a comparatively speaking, nar-
row beltround the Pribilof Islands; outside a narrow belt of somewhere
about 20 miles, seal-life is sparse, seals are scattered, and attacks made
on seal life would not imj^air or injure what I may call the main seal
herd.
In considering all this evidence, Mr. President, you will have to
remember that it has not been subjected to cross-examination. I shall
have to point that observation later on when I deal with specific state-
ments ui)on which cross examination was attempted and not permitted.
It is very important in reference to the statements on which reliance
is placed on one side and the other. The Tribunal will be good enough
to bear that in mind and further as to these observations I ask partic-
ular attention. It is important to see if the statements made are ex
post facto that is to say after the discussion has arisen or if they are
statements made before the actual contention between the parties had
been developed. In that view may I ask the Tribunal kindly to take
the British Commissioners' Report and to refer to certain paragraphs
beginning at paragraph 209. I do not pause to rei)eat, but only to
endorse with a word my learned friend the Attorney General's argu-
ment with regard to the attack made on the British Commissioners. I
may have to refer to it later on. It has been a matter of astonishment
103
104 ORAL ARGUMENT OF SIR RICHARD WEBSTER, Q. C. M. P.
and regret to me that such passages as I shall have to read will be found
ill the Uuited States papers. I will only appeal to the fair judgment of
every member of this Tribunal, as I read this, as to whether on every
point this Eeport is not only fair but impartial and giving the authority
on for and against every statement whether it tells in favour of the
supposed view of the Commissioners or against it. Then paragraph
209 is ill these words :
The distribution and mode of concurrence of the fur-seals at sea when congregated
in their winter habitats on the two sides of the North Pacific, and while migrating,
have already been noticed. While the information on these points is not as complete
as could be wished, it is sufficient to show in a. general way how the fur-seal is
affected in its movements by currents, drift, and winds. In speaking of its food and
feeding habits on a subsequent page, it further becomes apparent in what manner
the seals congregate and travel in following certain food fishes. It appears to be
rather in consequence of such circumstances, operating conjointly upon these pelagic
animals, than to any ruling gregarious tendencies while at sea that they become
collected into "schools " or groups of greater or less dimensions. This at least is the
result of the examinations made during the summer of 1891 in Behring Sea, where,
though two or three seals were often seen actually in company, and occasionally as
many as six or eigljt, the general rule seemed to be that each seal was pursuing its
own course, travelling, sleeping, feeding, or sporting in the water, without reference
to others in the vicinity. This is clearly shown by the observation that even when
passing through an .area at sea in which seals would be noted as abundant, they are
as a matter of fact usually sejiarated by distances much too great to enable any
single animal, or any group of two or three individuals, to be in any way cognizant
of the presence of the next adjacent individual or similar group.
I should point out the remarkable corroboration of this presently when
I call attention to the United States evidence:
A])art from seals met with near the shores of the breeding islands, the densest
"school " found by us was on one occasion about five miles to the westward of the
land of St. Paul Island, where about forty seals were counted in a distance ruu of two
miles. In all other cases, it was exceptional to meet with seals to the number of four
to a mile run, while two to a mile run was much above the average even when pass-
ing through areas of abundance. It is thus evident that the seals had been brought
together in such areas of abuedance by reason of common conditions rather than by
their own volition.
Then follow some paragraphs which give some very important state-
meuts as to the sources of information, but are not sufficiently material
for me to read. I will now direct your attention to paragraph 214:
214. Without attempting to enter into further details here as to the methods em-
ployed, the general results arrived at may now be briefly described :
It is evident, in the first place, that the seals are most abundant in the water in the
immediate vicinity of the shores of the breeding islands, this abundance of seals
extending often not more than half-a-mile from the fronts of the breeding grounds,
and seldom for 3 or 4 miles in such a way as to be at all notable. In the case of the
Pribylof Islands, it is also observed that seals were numerous in both the monthly
periods in the tract included in a general way between St. Paul and St. George
Islands, though they differed much in this respect even at nearly approximate dates.
It is further clearly shown that the Pribylof and Commander groups form the main
centres of abundance of seals in Behring Sea during the summer; but that while this
is undoubtedly the case, the seals are not found to decrease in numbers with any
approximation to regularity in zones concentric with the islands, — always excluding
the seals in the immediate neighbourhood of the shores.
215. It is therefore not possible to outline a series of zones in which the number
of seals present will bear an inverse ratio to the distance from the islands. It is,
however, possible to draw an approximate limit for a region about thePribilof group,
which will roughly define the area of abundant seals at sea during each of the two
monthly periods chosen. In the case of the region about the Commander Islands,
data though almost wanting for the first monthly period, and but scanty for the
second, are sufficient to indicate a general mode of distribution similar to that demon-
strable in the first case. Within the areas of abundant seals, these animals are,
however, by no means regularly distributed, even at any particular fixed date, but
are scattered in irregular patches in the diffuse character already described, and are
very often thichest locally towards the outer limits (M the area.
31G. Beyond these areas, seals are found more or less sparsely scattered over a
great part of Behring Sea.
ORAL ARGUMENT OF SIR RICHARD WEBSTER, Q. C. M. P. 105
I call attention particularly to this Mr. President.
Which in the lirst period extends, in the ionofitude of the Prihilof Islands, from
the Aleutian chain northward to about the 59th degree of latitude, includes the
whole vicinity of the western Aleutian Islands, and spreads again to a greater width
with the Commander Islands as a centre.
217. In 1891 the area of abundant seals about the Prihilof Islands appeared to be
not only changed in form, but considerably reduced in size in the second monthly
period; while that of scattered seals was not only changed in form, but much
enlarged in area.
That would be a natural consequence, Mr. President, of more seals
having occasion to resort to the islands — you would expect to lind after
tlie period of their visit to the islands became practically finished, more
seals out in the scattered regions further away.
It appears, that in most years, in the later summer this area of scattered seals
extends to the north-east of the Commander Islands, quite to, or even beyond, the
60th parallel of north latitude. This particular extension is probably to be explained
by the drift of that branch of the Japan current which flows through the western
part of Behring Sea, assisted by the prevailing southerly winds in the same part of
the sea in June and July; while the comparatively restricted spread in a northward
direction in the eastern part of the sea may be similarly connected with the general
movement of the water from north to south in that region.
Then you may pass the next two paragraphs which bear upon great
detailed observations which support their statement, and I wish to read
paragraphs 220 and 221. .
220, An examination of the area surrounding the Prihilof Islands in which seals
were abundant in 1891, together with such other facts bearing on former years as
could be obtained from pelagic sealers, indicates that the maximum limit to which
this area may reach from the islands in the summer months in any direction is not
more than about 180 miles, and it is probable that similar conditions obtain with
regard to the Commander Islands.
221. Respecting the number of fur-seals to be found at sea within the areas of
abundance above referred to, and exclusive of those frequenting the islands and
their immediate shores, it is difflcultto attain to anything like certain results. The
endeavour has been made, however, in a tentative way to reach some roughly approxi-
mate estimates, by finding the number of seals actually seen in measured lengths of
runs in or across such areas, chosen as typical, and made at different times in both
monthly periods. The results obtained varied somewhat widely, as might be expected,
not alone in consequence of the actual difference in density of the seals, but also
from circumstances connected with the weather and the state of the sea surface.
The observations made were, however, combined in a general average, which, when
thus treated, showed about one seal noted to each mile run. On the assumption
(which cannot be very far from the fact j that on the average a width of half-a-mile
was efficiently scanned from the deck, this would give a mean of two fur-seals to
each square mile of Sea surface within the area referred to.
I will ask the Tribunal not to overlook that statement when I come to
the corroborative testimony which I shall submit from the United States
affidavits. I need read no more there at present, but I will ask you to
turn to paragraph 313 page 56 where occurs a statement to which I
shall direct attention.
313. So far as the facts actually observed in 1891 go, it is apparent that there is
always a considerable number of seals swimming, playing at sea opposite each of tlie
rookery grounds, and that these in August consist largely of females, while in Sep-
tember great numbers of pu))s are to he found in addition. When extensive kelp
beds exist off the rookeries, the main body of seals is generally seen inside the kelp,
and at a distance of half-a-mile or so from shore comparatively few seals are seen;
while at two or three miles seaward from tlie rookery there is no notable abundance
of seals, and if sailing round the breeding islands, in a fog, at a distance of four
miles from the shore, it would be ditiicult for the closest observer (apart from other
indications) to decide when he had passed abreast of a rookery.
1 am not now upon the question of the distance which females go
specially — I will take that separately j but I refer to the general body
of seals.
106 ORAL ARGUMENT OF SIR RICHARD WEBSTER, Q. C. M. P.
Now, the Court will remember that tlieorigjinal contention of the United
States accorded with our own, lam not at all snggestingthatmy learned
friends are not fully entitled to the argument that they did not know,
or Mr. Blaine, when he wrote, did not know, as much as we know now.
T am myself going to use that argument in favour of some of my con-
tentions; it is equally open to my learned friends. I am entitled, how-
ever, to note in passing the original contention in the celebrated letter
from Mr. Blaine to Sir Julian Pauncefote, the actual passage being at
page 284 of the first volume of the United States Appendix, — the date
was the 17th of December, 1890, — in which you will remember the Presi-
dent asked the Government:
To agree to the distance of 20 marine leagues — within which no ship shall hoA^er
around the islands of St. Paul and St. George, from the 15th of May to the 15th of
Octoher of each year. This will prove an effective mode of preserving the seal lish-
eries for the use of the civilized world.
Sir, in my submission, having regard to the evidence that we now
have a distance of 60 miles, or 20 marine leagues, is very excessive; but
it is to be noticed that that distance was in connection with the dates
there mentioned, from the 30th of May to the 15th of September, and
would have left Behring Sea outside that 60 miles open during the whole
year; and in connection with what I am going to i^ress upon this Tri-
bunal (fori ask to be allowed here again to make the observation), I
shall submit to the Tribunal that I am considering this question of
Eegulations fairly from the point of view of assisting the Tribunal and
not trying to argue it too much from the British point of view, and I
say it is important to stop pelagic sealing in Behring Sea while the
stream of gravid females is going from Unimak pass up to the islands.
I mention that because it is quite clear, from that point of view, that
Mr. Blaine had not sufficient knowledge. I agree that that scheme of
his would have allowed pelagic sealing in Behring Sea in the months of
May and June north of the Aleutian Islands, and up to within 60 miles
of the Pribilof Islands; and I admit at once, so far as Counsel may
make an admission, looking at it impartially, that is a period of time
when in Behring Sea the most destruction would be done to gravid
females. I speak of Behring Sea as compared with outside Behring
Sea, because, from about the middle of May up till the 15th of June,
the female seals in large crowds, clustered together, are streaming up
from the Unimak pass and other passes close by to the Pribilof Islands.
Therefore, I call attention to this, and I think the Tribunal will think
I am not unfairly admitting it, that the zone proposed by Mr. Blaine,
which he thought to be efl'ective, did overlook or was insufficient from
an important point of view, and that the rights of pelagic sealers ought
to be restricted, so as to prevent any pelagic sealing in Behring Sea
when the herd of females close together are, to use an expression I used
just now, streaming up in close proximity towards the Pribilof Islands.
I may make this observation once and for all, and submit this to the Tri-
bunal, in the Pacific Ocean, and even round the coasts of the Gulf of
Alaska, the stream has a comparatively speaking wide area, speaking
of the stream of seals — that is to say it is dispersed from 3, 4, 5, 6, or
even 20 miles from the shore; that is the evidence, and I believe even
further. But when the seals get to pass through the Aleutian Islands
they might become pressed, be closer together, because the passage
through which they go is narrow, and people thought, even at those
places, nets put round might catch and destroy a very large proportion
of the female seals. So a point to be considered by this Tribunal, and
considered I admit most carefully, is to see that during the time that
ORAL ARGUMENT OF SIR RICHARD WEBSTER, Q. C. M. P. 1 07
the congested lierd of female seals, or tlie congested body of femnle
seals, is passing through the Uniinak and other passes up to the Pribilof
Islands they should be, practically speaking, free from attack.
Now, having reminded you, Mr. President, of what the view of the
Commissioners was, put down impartially and fairly, not as an admis-
sion forced from unwilling witnesses, let me in a very few sentences
remind you of how the United States evidence stands. I must go over
somewhat the same ground as was referred to yesterday in order to
supplement it a little. Will you take map 4 of the United States Case.
That is the sealing chart of the year 1891. How do the United States
advisers describe tlie condition of sealing area in the year 1801? You
will find that they have drawn again two imaginary circles round the
Pribilof Islands at a distance of 20 miles from the nearest land. The
Attorney General was not quite accurate in saying it wouUl be more
than 20 miles in some places. That is not the condition. It would be
always 20 miles from the nearest land, and therefore more from other
pieces of land.. It is a zone enclosing the distance between St. George
and St. Paul, you will see, because, being 36 miles apart, those two
circles would overlap. How do they describe that? "Seals within
this area very numerous ". That is the statement made in the United
State's Case for the purpose of showing what was the condition of
things in 1891.
Now I will tell the Tribunal what this map shows. It has been used
in the United States Argument and in the evidence of the United
States witnesses as though outside that 20 miles it showed the sea very
thick with seals. On the contrary, it shows the reverse.
The total observations of six cruisers from the 15th July till the 15th
September (that is to say, at various times between that), put down
the total number, I have no doubt quite fairly, giving the dates and
numbers, is 615 seals.
The total area over which those seals are spread is 100,000 square
miles. Now do not let me be misunderstood. It is quite possible that
on other days, or on 'tfie same day in other parts of these 100,000 square
miles there would be seals, comparatively speaking, sparse or frequent,
as you choose to call it, to the same extent. But it points to this, that
the observation, assuming it, as I do, to have been fairly taken, shows
that outside the radius of 20 miles from these Islands the seals are,
comimratively speaking, sparse, and further than that, that they
are existing in the condition, so far as thickness is concerned, where
you would expect to find them, if they were, as the evidence leads you
to believe, not in the course of actually migrating or going to or coming
from the Islands themselves. In other words, as it is described by
those who have made these affidavits, and compiled the evidence and
described them as being seen in one direction sometimes and sometimes
in another, and sometimes sleeping and sometimes not, and evidence in
the condition in which seals would be, treating this part of the sea as
that part of the universe they were inhabiting, if that is a proper
expression to use with regartl to seals in such a condition. I only
pause, before I leave this map again to remind you of how misleading
the api)earance to the eye would be when you remember the extraordi-
nary small scale on which this map is. I do not make the slightest
complaint, and I shall not be mistaken, but it is a fact that each one of
these seals covers from a mile and a half to two miles space on the
water and therefore does not represent what would be the physical
appearance of the seals in the sea itself.
108 ORAL ARGUMENT OF SIR RICHARD WEBSTER, Q. C. M. P.
Now I ask the Court to take the map N" 6 of the Counter Case which
is the corresponding- map of 1892 which my learned friend the Attorney
General referred to yesterday.
That is important, because a good deal more information is given in
connexion with the year 1802 than is given in connexion with 1891,
which information I desire to put before the Court in a compendious
shape. In 1891, no doubt, not seeing the importance of the matter so
much, they either did not keep the logs or tliey have not given us the
logs. I merely mean that we have not the same amount of information
for 1891 that we have for 1892. In 1892 they have given us the logs, I
think, of all the six or seven cruisers that were engaged.
Now the state of things is this, and it bears, I shall respectfully sub-
mit, upon the very important corroboration, of the British Commis-
sioners' view. Six cruisers were engaged for 148 days; that is to say
combined, the total days occupied in examination was 148, ranging
between the 20th July and the 31st August, some more and some less,
amounting altogether to an average of something like 35 or 36 days
observations each. All the logs are given, and one, the "Corwin"
gives the number of seals they observed in all cases. The "Corwin" in
one or two instances — a few outside and a greater number inside the 20
mile radius, says that in certain instances the seals were too numerous
to be counted.
It is not quite possible to give an exhaustive statement with regard
to this, but this is what the map shows and what the logs show. In the
first place, will the Tribunal kindh'^ observe again the 20 mile radius or
zone, which is a little more accurately drawn upon this map than upon
the other but sufiBciently for our purpose corresponding with that of
1891 and the words are written '' Seals within this area very numerous ".
Then occur,' Mr. President, the pictorial representations of the other
observations extending, as you will notice over a considerable area of
sea, and I i^erhaps cannot point my observation more than by telling
you that the map has been correctly made from the logs.
On the 20th July, almost due south-east of the Pribilof Islands, you
will find 102 seals in a large cluster, and there are 102 in that bunch
when it is counted it is correctly put down, and they cover an area, as
nearly as possible, as well as you can clieck it of 400 square miles. If
it is a picture of what was seen the 102 seals would, in fact, cover a
space which would be perhaps three or four acres at the very outside
they would not cover it, but be in it. The map shows as though they
covered a large area. That is perfectly fair, but I want to remove any
false impression. This map and the log show this, that daring all this
time with a number of cruisers in and out, as was shown yesterday —
and I need not bring it to your attention again — the total observa-
tions outside the 20 mile radius were 1062 seals; the total observations
counted inside and outside were 1859, and then within the 20 mile
radius there is "thickly populated, very numerous ". Thej^ very nat-
urally and very properly not only did not attempt to count, but could
not because they were so very numerous. The area is nearly as large
as the map of 1891 covers, and even of the observed and counted seals
40 per cent are found within the 20 mile radius; but when you remem-
ber this area is spreading out and by geometrical i)rogression getting
larger and larger.
The President. — The seals within the 20 miles radius are not taken
from the map, but from observation.
Sir Richard Weester, — The dilference between 1062 and 1859 or
about 600 seals is taken from the logs, that is to say, in addition to the
OPvAL ARGUMENT OF SIR RICHARD WEBSTER, Q. C. M. P. 109
outside 10G2 tliere are other instances of seals actually counted inside
the 20 miles which brings it up to the 1859, the total number, that is,
independently of the densely thick seals which they did not attempt to
count inside close up to the Islands.
I therefore respectfully submit to this Tribunal asking them to
remember that these observations are addressed to them for their
assistance and not for the purpose of endeavoring- to produce an unfair
or distorted impression upon the mind of the court — 1 say that this
evidence points to the strongest corroboration of the British Commis-
sioners' judgment that there was a fairly defined area — it may be 20
miles, it may be 15 miles, it may be 30 miles for all I care — I dare say
it also varies with the weather, and with the fish and with other inci-
dents connected with seal life, but there is a certain defined area within
the immediate proximity of the I'ribilof Islands at the time that the
Fribilof Islands are densely crowded with seal life — outside that there
is a sparse distribution of seals which are not in attendance upon the
Islands but which are seals for reasons which I may have reason to
examine inhabiting the sea, passing through the sea, and to be found
from time to time under such circumstances that they can be occasion-
ally captured by the sealer.
The President. — I suppose the information you have given us in
part concerning the Eussian Islands tends to show that the general
circumstances of seal life on the Commander Islands is the same.
Sir Kif'iiAED Webster. — The intormation we have obtained — I
shall have to refer to it later on — from the Commander Islands is the
same, that under ordinary circumstances the seals do not go far from
the Commander Islands — it might be 10 miles it might be 15 miles, it
may be 20 miies, and that a zone of 30 miles suggested by the liussiaus,
for a special reason which does not ai)ply to Pribilof Islands, as I shall
show later on, is certainly an outside distance. But I address these
observations to the Court in order that they .may understand upon our
own independent investigation, quite apart from that which has been
subsequently discovered in regard to this matter, these are the consid-
erations that the Court ought to take in view when they decide what
are the limits to be i)ut upon a legitimate industry in order tliat it may
not be curtailed further than is necessary for a proper protection of the
life of the animals which are the subject of consideration.
The President. — Have you any information as to the proportion of
the Commander i sland seals to the Pribilof Island seals. Is the Kussian
herd larger or smaller.
Sir EiCHARD Webster. — Smaller.
The President. — Do you know the proportions.
Sir EiCHARD Webster. — Yes, I can tell pretty well. In an ordinary
year the Russians think tliey ought to kill 50,000 to 57,000 seals on the
island. In an ordinary year the United States contend, and I dare say
rightly they kill 100,000. My case is 100,000 is very much too large, but
I should think in all probability the correction of it Avould not bring it
down so low as the Russian. I think the evidence is as to the Com-
mander Island group or family, that the number of seals of the Pribilof
Islands is larger.
The President. — Comprising Robben Reef, or is that a separate
flock.
Sir Richard Webster. — I was speaking of it as a whole, but if I
am wrong it will not be taken against me.
Mr. Phelps. — I observe that the last two years before the modus
Vivendi the Russians took about 30,000.
110 ORAL ARGUMENT OF SIR RICHARD WEBSTER, Q. C. M. P.
Sir EiCHARD Webster. — I think tlie evideuce read yesterday was
tliey used to take 57,000 before tlie modus virendi and after the modus
Vivendi it had fallen to 35,000 and 33,000. That is my recollection.
Mr, Justice Harlan. — Whicli modus vlvendi.
Sir EicHARD Webster. — Of 1891, 1892. I do not complain of the
interrui)tion. On the contrary, if at any time Mr. Phelps thinks I am
wrong or wishes to correct an error I am personallj^ obliged to him, for
he once said, Mr. President, in a speech which is classic and historic
and which will never be forgotten by any one who heard it that a man
who never makes a mistake, never makes anything, and I desire to say
nobody is more conscious than I in addressing an argument of this kind,
that it is imi)ossible to avoid mistakes and if I by ignorance or want of
recollection, make a statement which my learned friend thinks to be so
inaccurate that he desires to correct it, I am i)ersonally obliged to him
for calling attention to it. The figures I had in my mind were taken
from the Kussian correspondence and I thought I was right.
In the years 1889 aud 1890 before the establishment 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 ligures fell to 30,089 and 31,315.
Therefore apparently assuming the Commander and Eobbeu Islands
to be afi'ected by pelagic sealing, between 50,000 and 60,000 is what the
Eussians seemed to consider their normal yield.
Having called attention, Mr. President, to the maps of the United
States I am going to ask you kindly to unfold Maps 3 and 4 annexed to
the British commissioners' Eeport. There is a preliuiinary observation
which ought to be made. You will remember prior to these Commis-
sioners' Eeports very little indeed about the seals at sea was known;
something, a good deal, was known about the seals upon the Islands,
but the British commissioners and the United States commissioners
have added considerably— particularly the British Commissioners — to
the knowledge of the world with regard to the seals at sea. You will
find Map 3 shows approximately, according to the opinion of the British
Commissioners the area frequented by fur-seals in the j)eriod extending
from July 15 to August 16. The darker coloured area is characterised
by abundant s'ealsand the lighter area is characterised by scattered seals.
You will notice that the commissioners drew the distinction rather dif-
ferently between what I may call abundant seals and scattered seals.
It is a little dithcult to follow that area — it is rather larger in some
respects. It looks to me in some cases to go out as far. I should think,
as 60 or 70 miles, or even further on the north east, but judging from
the distance, from the Pribilof Islands, it would seem to me to go some
where about half way to Unalaska.
General Foster. — That is 195 miles.
Sir EiCHARD Webster. — I have stated the distance from the Pribi-
lof Islands which is 182. You take 195 — I do not care which it is, 1 do
not suggest that these gentlemen are absolutely accurate. They would
be the last to wish that I should make any allegation of that kind.
They are attacked in the United States Counter Case for having sug-
gested that the seals are found scattered over the sea practically con-
tinuously— although of course in sparse numbers — from the Pribilofs
to the Commanders. I will call attention to that very shortly, and we
will see on which side the truth lies in that respect. This Map jST" 4
gives a similar sort of area for the Commanders. I remember the
British Commissioners did not visit the Commanders till later in the
season. If you turn to Map 4, you will find a general distribution of
seals over Behring Sea, an opinion more than supported, proved, by the
ORAL ARGUMENT OF SIR RICHARD WEBSTER, Q. C. M. P. Ill
evidence now before the Court, and a rough idea of what they thought
to be the comparatively speaking dense area.
But, Mr. President, of course, we must detine terms before we use
them, and it is quite evident from reading the Keport that the United
States authorities when they si)L'ak of these 20 miles about the islands
characterized by, very numerous seals so numerous they could not be
counted, were not speaking of the same kind of distribution as that
which extends all over the thicker part of the British Commissioners'
colour. That appears from the British Commissioners' Report itself.
Now, it may be said that I do not correctly interpret the United
States Map; and, therefore, I should like to read one passage of very
great significance from the United States evidence iu regard to this
uuitter. Will you. Sir, be good enough to take the United States
Counter Case, and let me read you a passage on page 235! What I
have been trying to give the Tribunal, in the hopes of assisting them,
is the effect of reading and boiling down these logs, reports and
affidavits and to give it to you as shortly as possible; but there is one
passage on page 235, which is deserving of special notice. Cap.
Coulson was iu charge of, I think, the " Eush " and he took his instruc-
tions from the " Albatros ", and I may tell you, Mr. President that
he cruized from South-south-east to North-north-east, that is to say,
to the eastward of the Pribilof Islands principally. He says :
At every stcation where the vessel was stopped, codfish was taken; in some
localities they were abuiulaut, at others only a few were caught.
During the month and while prosecuting the work, the vessel has cruised nearly
three thousand mileg, and in the whole time not one vessel engaged in taking seals
has been seen. The weather, as will be noticed by the Seal Log, has been unfavor-
able for sealing a greater jjart of the time, added to this the scarcity of seals on the
Eastern side of the Pribilof Islands will account for the small number of seals
observed or taken and the little information gathered.
On nearly every point of the compass on which the lines were run and the seal
herd, or what might be termed numerous seals, were passed at ten miles.
that means ten miles from the islands,
And the numbers decreased rapidly, so that at forty miles few seals were seen, and
at fifty, on most all of the courses, no signs of seals were seen. The exception to
this rule was in one or two of the Northern aud North Eastern lines, where seals
were met in small numbers, one hundred miles away from St. Paul Island; these
were apparently feeding on some surface food, as large flocks of whale birds, and in
one instance a whale, were in the vicinity. Night coming on prevented cloSe obser-
vation or investigation.
Therefore, that would show you that, at any rate speaking of the
eastern side, the view which I have been expressing to the Tribunal
was in substance the conclusion at which Captain Coulson arrived as
the result of his investigation. Captain Hooper's affidavit 1 have
already read and criticised; I will only remind you of it, on page 21(3,
where he says that he found, what he calls, numerous seals iu certain
latitudes at a distance of 300 miles, from which, —
I infer that the western limit of the range of the Pribilof herd of seals is between
two and three hundred miles from the Islands.
I criticised that when addressing you on the question of property,
and will not refer to it any further at present.
Mr. Phelps. — The figure 300 is a typographical error, and should
be 200.
Sir EiCHAED Webster.— Is it 200 in the original Keport?
Mr. Phelps. — General Foster can explain it to you.
General Foster,— 1 gave Mr. Tupper notice of the fact that we
would claim that that was an error, that it should be 200 in place of
112 ORAL ARGUMENT OF SIR RICHARD WEBSTER, Q. C. M. P.
300, and it is plainly indicated by the context, if you read the whole
page. It will show itself when you examine it with the Chart.
Mr. TUPPER. — And I may say that you informed me, as I understood
you, that the error, whether it is an error or not, is in the original
Eeport signed by Captain Hooper.
General Foster. — Yes, it is a type- written copy.
Sir KiCHARD Webster.— Well, my learned friend, Mr. Phelps, hav-
ing said that it is a typographical error, I of course accept it at once;
but I attach so little importance to the actual question of distance,
having regard to what the maps themselves show, because the 1,008
seals in the 100,000 square miles include the seals observed by Captain
Hooper and all the other cruizers, and we know what he means by
numerous seals because every single set of seals he observed outside
the 20 mile radius was counted and put down. Therefore, whether it
be 200 or 300 for the purpose I am contending for is immaterial, but I
think I ought in justice to myself to say that, when I made the argu-
ment about the 300 miles the other day, I did not receive the slightest
notice from my learned friends of the mistake, nor did I hear of it till
some days afterwards, when I immediately made the enquiry to know
if it was in the original.
Lord Hannen. — I think, if you look at the paragraph, General
Foster's observation is borne out, and I think he is correct, because it
speaks of a 200 mile zone " dividing that part of the sea over which the
"Corwin" cruised into zones" up to 200 miles, and he says, " I find the
percentage of seals", and so on.
Sir Richard Webster. — I had not examined it from that point of
view, my Lord, I was only looking at the statement with reference to
the supposed absence of intermingling when I made my last reference
to it,
i*^ow the main point of attack made on the British Commissioners is
because they have stated, as the result of their own observations, taken
during their own cruising, that the seals did extend sparsely, practically
speaking, all the way across Behring Sea. Now if I was entitled, and
if I desired simply to incorporate, as part of my argument, the mere
statement in the Commissioners' Supplemental Report, I should from
their own investigations prove that they did in fact see seals right
away across; but I prefer to take another course, and I will ask the
Tribunal kindly to turn to Volume 2 of the Appendix to the British
Counter Case, pages 23 to 27, where they will find a very convenient
abstract of the affidavits which bear upon this matter. I will only
pick out those (there are some 57 of them, and I will not trouble the
Tribunal with the whole of them) that bear directly on this question of
seals in Behring Sea. If you will look at the top of page 24, it is a
verbatim extract of Mr. Billard's afitidavit given later on in the book,
page 56:
Last year the " Beatrice" crossed Behriug Sea from east to west, starting from
about 35 miles north of St. Paul Island. I saw seals all the way over to the Copper
Island jiTounds and got two seals on 27th July between American and Russian sides
of the Sea.
Mr. Bragg, the next man, also on page ii6.
In the year 1887 I went over to Copper Island on the schooner "Teresa" and I saw
seals in Behring Sea ail the way across.
And if you go to the top of page 25, George French his affidavits are
at pages 44 and 46, but I read from the summary on page 25.
ORAL ARGUMENT OF SIR RICHARD WEBSTER, Q. C. M. P. 113
Last year, 1891, when the "City of San Diego" was crossing Behring Sea from
Amntka Pass to Copper Island, we passed small bands and bnnches of seals travel-
ling rapidly north-easterly. This took place on three dift'creut days. The last lot we
met Avere abont 150 miles from the Co])per Islands. I am fnlly satisfied they were
crossing Behring Sea to the Pribilof Islands. This was between the 5th and the 12th
July 1891.
Then De Witt, the next but one:
I have been over to the Copper Island grounds twice, in 1891 and 1892. In 1891
the " VMva" crossed Beliring Sea from about 20 miles north of Amntka Pass to the
Copper Island grounds. I saw seals scattered all the way over. This year the " Sea
Lion" went oAer outside the Aleutian Islands. I saw seals in about the same way
all the way over.
Then Captain Charles Cami^bell :
I went over to the Asiatic side of Behring Sea last year and this year, last year
through Behring Sea, this year outside. Last year we saw seals on the way across
whenever the weather was fine. There was no way of telling Avhen we saw the last
of the seals that frequent the Pribilof Islands, and met the first of those that were
going to the Commander Islands.
Then Thomas Brown :
Last year and this year I hunted on the Asiatic side of Behring Sea in the summer.
On the way across last year through " the Sea" we saw seals whenever it was line, and
got some, and this year we saw some seals south of the Aleutian Islands as we went
across.
I need not read more of these, and I come a little lower down to.
Captain James W. Jood.
In September last [on " Enterprise"], on my voyage home from the Asiatic side, I
saw seals in mid-ocean 200 miles east-south-east of Attn Island.
That is south of the Aleutians, and I need not have read that.
When ordered out [of Behring Sea] in 1891, I was about 30 miles northward of
Unimak Pass. I at once sailed across the sea westward to the Copper Island
grounds, following a course along the 55th parallel north latitude. I saw seals all
the way across to the Commander Islands. Some of the seals were .sleeping, others
travelling, some east, some west, most of them going east.
Then if you will turn over to page 26.
Maurice Edwards.
I went over to the Russian side of Behring Sea last year [1891], and I saw a few
scattered seals all the way across.
Then the 4th, turn down:
William Edwards.
Last year [1891] I went over to the Russian side of Behring Sea; we saw a few
seals all the way across.
The next man, Captain Thomas O'Leary:
I went across to the Russian side of the Behring Sea last year [1891]. We found
a few seals nearly all the way across.
Then George Wester.
In travelling from the American to the Asiatic side of Behring Sea from the middle
of June to the middle of July, I have seen seals all the way across on fine days.
And then on the next page, last but two, captain Andrea McKiel
says that :
In 1891, the "Maud S", after being warned, sailed across Behring Sea in nearly a
direct line between the Pribilof Islands and the Commander Islands. I saw seals
every day on the voyage over.
Then the next voyage, is passing south. I need not refer to that.
Mr. Macouu, when sailing across the Behring Sea in the year 1892 (I
read from his Report at page 138 of the first volume of the Appendix
to the Counter Case) says:
B S, PT XIV 8
1 14 ORAL ARGUMENT OF SIR RICHARD WEBSTER, Q. C. M. P.
On the return trip to St. Paul Island we again encountered such bad weather that
no look-out could be kept for seals. While the ship was laid to, between noon and
bj). m. on the i)tli of September, many fur-seals were, however, seen swimming about
in all directions. The ship's position at noon that day was latitude 58° 58', longi-
tude 177'^ 8' west, about 240 miles Irom St. Paul Island.
I will not stop to argue whether it is to be presumed that those seals
found swimming about there are to be considered as beiug all female
seals and each having a pup on the Islands that would perish if those
seals were slaughtered.
I have pointed those out not for the purpose of dealing with general
intermingling, not for the purpose of calling attention to the body of
evidence to which I alluded when I was addressing you on the ques-
tion of property. You will remember, however, Mr. President, what
the claim of the United States is, — down to this line 35 and everything
east of tliat place where I have left the pointer on the map, longitude
180, is claimed by them to be United States property, under regulations,
so that no British vessel can catch or hunt seals there at all. I want
to know on what evidence my learned friends are going to suggest that
both in the Pacific Ocean south of the Aleutian Islands, and in the
Pacific Ocean north of the Aleutian Islands, that is to say in Behring
Sea, seals which on the evidence I shall submit to you are proved to be
scattered across in that sparse kind of way, and having no direct con-
nection with the Pribilof Islands at the time that they are so scattered,
are to be regarded for this purpose as being the exclusive property of
the United States, so that the British sealer, and I suppose, somehow
or other, the sealers of other mxtions, are not to be allowed to kill them
at all, at any time within those very wide limits to which reference has
already been made.
I ought to mention in connection with the subject I have just left, that
the United States Commissioners' Report gives us no statement or infor-
mation upon which we can draw any conclusion as to what is the breadth
or width of the populous zone, for reasons wliich I suppose are satis-
factory to themselves. They have not thought fit to investigate that
matter at all.
Now, I claim, Mr. President, to have established, upon the United
States evidence as well as upon the British evidence, that the zone of
sea thickly populated by seals in immediate proximity to the Pribilof
Islands at a distance which may be taken roughly at 20 miles; but for
my i^urpose I care not if you consider, on a review of the evidence, it
is 15, 25 or 30, — it is immediately round these islands. My learned
friends endeavour to meet us in another way. They say, or rather they
would say if they would bring their minds to bear on Regulations prop-
erly so-called, — That may be perfectly true, but we say that outside that
30 miles there is a certain number of seals, — we say a large number of
female seals, feeding or desirous of getting food, and these seals are
caught by pelagic sealers in such a condition and at such a time that
the life or death of the young upon the Islands is involved in their life
or death.
Now, I was about to consider this question of the females feeding,
and the time during which they feed, and the distance to which they
go. It is impossible for me to make any assumption as to what my
learned friends may ultimately concede in arguing, but I do not propose
to go over the evidence in support of the two statements made by the
Attorney General yesterday with regard to the male seals, unless I had
an intimation that it was going to be seriously disputed. The first is,
that the bulls do not feed at all during the time that they are on the
Islands; secondly, that, on the United States evidence, the "hollus-
ORAL ARGUMENT OF SIR RICHARD WEBSTER, Q. C. M. P 115
chickie", or bachelor seals, tboiigli out of the water from periods of from
4 to 6 weeks, or even longer, practically speaking do not feed at all. I
am prepared to establish both those propositions from the United States
evidence alone ; but I want to consider whether, on general considera-
tions, it is not highly probable that that which the evidence supports
will be the fact. ISTobody suggests the individual male seal knows that
it is going to be killed at a certain age, or it would try to enjoy life as
much as it could during the time that it was going to be allowed to live.
I^obody suggests, for instance, that "holluschickie" at 3 years old
know they are going to be knocked on the head at 4 years old; or that
"holluschickie" at 4 years old know they are going to be knocked on
the head at 5. We know when they come into a proper condition to be
bulls 6, 7, or 8 years old, or possibly a little younger, they do fast for
these extraordinary periods of from 2 to 3 months. I should have
thought that if a seal is going in the year 1890 to fast for 2 months and
performing the functions you know of during that period, it is very
improbable that it will have eaten for every week of its life, or every day
of its life in the previous years of its existence. You would expect
from natural laws that if a seal has to go through that state of things
and that ordeal, the natural course of its training would be that in
these earlier years it will be in a condition to go without food, at any
rate after it has grown up, during that time until it is out upon the
Island, speaking of the substantial part of the time.
Now, we come to the females; and we start, as I shall show you pres-
ently, with this statement (I am aware that I must not treat it as an
admission after what was stated), that for a considerable time, and I
think the lowest at which it can be fairly put upon the evidence is a
period of from 3 to 4 weeks, the female, after giving birth to the young,
does not go out to feed at all. Now, I i^ropose to pursue exactly the
same course, Mr. President, and to call your attention to such paragraphs
of the British Commissioners' Report upon this matter as have not
already yet been called to your attention.
Now on page 54 at paragraphs 303 to 308, read by me yesterday when
the Attorney General was arguing on this matter, you will find the con-
clusion of the British Commissioners with regard to the feeding of the
female seal, which conclusion is, according to the judgment of the Brit-
ish Commissioners, that until the time when the pup-seals are beginning
to take care of themselves the female seal, though it goes into the water,
does not go out to feed. It is based upon facts — when I say " facts",
upon information, the value of which the Court was able to appreciate
when I read it yesterday, and I do not propose to read it again. Now
let us see what further evidence there is upon that particular matter.
Now I call attention, at once, to a statement made in an Affidavit of
Mr. Stanley-Brown, and as this is the first occasion upon which I have
had to refer to the evidence of Mr. Stanley -Brown, I wish to say a word
or two which will be taken to apply to all the observations on his evi-
dence and to him, which I make. It is no part of my duty, and much
less of my intention, to attack the evidence of Mr. Stanley-Brown (»n any
particular point in so far as it depends upon matters which he saw or
observed himself. I believe him to be a gentleman who certainly would
not intentionally make any statement he did not believe to be true; but
in critcising Mr. Stanley-Brown's opinion the Court must remember this
fact: That until the year 1891, when he went to the islands, he had
never studied seal life at all, and never had been any where near the
Pribilof Islands or taken any part in the investigation. I mention that
and I shall have to point my observation again when I come to remind
116 ORAL ARGUMENT OF SIR RICHARD WEBSTER, Q. C. M. P.
the Tribunal of what has been the conduct of the United States Gov-
ernment in connection with the information they have obtained — that
although there were at their disposal five or six competent gentlemen
who had been in an indepeudejit position and had previous experience
of the existing, state of things on the Pribilof Islands, and therefore
whose opinion would have been extremely valuable inasmuch as they
would not be forming conclusions for the first time, but would be bring-
ing their opinions to bear on the changed state of circumstances — the
United States, in the exercise of their discretion, thought tit to send, in
the years 1891 and 1892 — 1891 particularly — to the Islands, Mr. Stanley-
Brown, who while his powers of observation were, I will assume, equal
to those of anyone and his intention to record accurately surpassed by
nobody, on the other hand it is obvious from a perusal of his affidavits,
that he spoke in ignorance and in inexperience of what had been known
before of the habits of these seals, and to a large extent was forming
opinions and drawing conclusions which a vast mass of testimony enables
one to show are incorrect, or at any rate are not correct to the full extent
they are not stated.
Now, Sir, the paragraph to which I was about to refer will be found
at page 386 of the United States Counter Case. This is referring, Sir,
not to his visit in 1891 but to his visit in 1892. The paragraphs of the
affidavit are not numbered, but you will find it is the last paragraph on
page 386. He says there :
I arrived on the islaud this year a few days after the coming of the first cows, and
by selecting a small harem composed of seals the arrival of which I had seen, and
giving it daily observation, I was able to satisfy myself that females begin to go into
the water from 14 to 17 days after first landing. On first entering the sea they make
a straight line for the outer waters, and as far as the eye can follow them they seem
still to be travelling.
It is perhaps unfortunate that we were not told what distance that
was. We know from other evidence that the sea, at those times is
densely crowded when the weather is fine, with seals. Then Mr. Stanley-
Brown says :
The first cows to arrive are the first to depart in search of food ;
Of course that is purely inference, whether or not they depart in
search of food:
And by the first week in July the cows are coming and going with such frequency
as to be readily seen at any time. The accompanying photograph (taken on July 8,
1892, from the same position as, but one day earlier than, the one last year which
faces page 13 of Vol. II of the Case) shows pups the mothers of which are already at
sea.
I do not think the photograph will enable you to tell that the pups'
mothers are already at sea, but I am quite willing to assume that Mr.
Stanley-Brown did see — and I take it from him without a word of criti-
cism— the mother-seals going into the water, and that the conclusion
that he draws is that they begin first to go into the water at from four-
teen to seventeen days. Whether they first go into the water to feed, or
whether they go into the water for purposes of enjoyment, or for other
purposes dictated by other instincts, as others have thought with not
less experience than Mr. Stanley-Brown, is a matter which one may
fairly criticise; but at any rate the furthest that Mr. Stanley-Brown can
go, looking at the matter from the point of view that he is entitled to
look at it from — namely that of supporting as he fairly wished to sup-
port the United States case — is that they go into the water for the first
time from 14 to 17 days after they come on shore.
ORAL ARGUMENT OF SIR RICHARD WEBSTER, Q. C. M. P. 117
]Now I desire to call attention to a g'entleman who is eqnally entitled
to be treated in the same way, and will, I have no doubt, be treated by
my friend Mr. Phelps with the same fairness as 1 have treated Mr.
Stanley Brown — I mean Mr. Macoun, who also had tlie opportunity, for
a very'lengthened time, of observing this matter, and who was also on
these islands during the same two years that Mr. Stanley Brown him-
self was. But I must again be allowed to say that I do not put for-
ward Mr. Macoun as a witness whose opinions are to be taken as of
great value based upon previous experience, because he, in the year
1891, went I believe, for the first time, to the Pribilof Islands, and had
not been in the position of having previous experience.
Now at page 142 of the 1st volume of the Appendix to the British
Counter Case, I call attention to a paragraph that has not yet been
read in Mr. Macoun's report. He says :
Within a few hours after a pnp is born it receives its first notirishment from the
mother; and for some days, while the mother remains about the harem and the pup
is too young to wander far from it, there can be little or no doubt that each mother
seal suckles her own young one alone.
It was not until the 1st of July that I first noted pups forming "pods" or small
separate herds.
The time of arrival, if I remember rightly, of the mother-seals for
the x)urpose of giving birth to the young is about the 10th or 12th June,
so that this would make the pups somewhere about 19 to 21 days old.
It was not until the 1st July that I first noted pups forming '^pods", or small
separate herds; every harem was still well defined, but the pups belonging to each
had begun to show greater activity, and the older ones had to some extent formed
little "pods" a few yards distant from the mother seals. By the 5th July it was
noticeable that the pups from adjoining harems had "podded" together l)etween
them, while the harems themselves wore still, with few exceptions, compact and
well defined.
The cows had not yet begun to go to the water. The few wet ones seen upon the
rookeries were without exception females that were still carrying their young. The
seals on a great many small harems were counted, and it was always found at this
time that the pups and cows were in about equal numbers. Within the next week,
however, the cows began to go into the water, but not in great numbers. They
seemed content to swim about near the shore, and were often seen hauled-out on
some flat rock after they had been but a few minutes in the water, and, after scratch-
ing tliemselves for a little while, would plunge again into the sea, swim to shore,
and go back to the harem to which they Ijelouged.
Now you will remember, Mr. President, that the observation of Mr.
Stanley Brown was that he saw, as he believed, the female seal to be
still travelling when he last saw her. Mr. Macoun, also observing for a
very considerable length of time, and having many days to devote to
this, describes that which is in accordance with the evidence of previ-
ous persons of experience in this matter who had written on the sub-
ject, and have called attention to the fact that the mother goes into the
water, remains in the proximity of the islands, plays about the islands,
and comes out again. Then follows a long passage read by Mr. Coudert
(I do not intend to read it again — I want to spare the Court as much
as I can), with reference to the question of whether a mother suckles
her own pup or not. Sir, I am not going to trouble the Tribunal with
a lengthened discussion on that point. From natural instinct it would
seem to me — I must not do more than submit it to the Tribunal — that
in all probability the mother does as a rule, suckle her own pup; but it
is by no means uncommon both in domestic, and in wild animals, to find
that mothers do allow other of their species to suck, and of course we
know it is a means in the case of sheep, and the case of other animals,
whereby the young are kept alive before they are able to feed. But in
my judgment the poiut becomes, comparatively speaking immaterial, for
this reason — that there is abundant evidence that after about three or
118 ORAL ARGUMENT OP SIR RICHARD WEBSTER, Q. C. M. P.
fonr weeks to five weeks to put it accurately — the pup seals begin to
spread all along the shores of the islands for vast distances — distances
of a mile, a mile and a half, and even more, and occupy positions in the
islands away from the harem to which the female wonld return if the
puj) was absolutely dependent upon her; and therefore it seems to me
to be comparatively immaterial unless we were in a position to say,
(which we are not), that up to a certain time the pup is dejjendent on
the mother and that after a certain time ther pup is independent of the
mother. Criticising the evidence as fairly as I can, it seems to me that
there is no evidence of the pup feeding independently before it is three
to four weeks old, and that after that time there is substantial evidence
to show that the pup can, to a certain extent, take care of itself; but
iigain I say I think in all probability that with seals as with other ani-
mals, the pup will go on sucking tlie mother much longer than a period
of three to four weeks if it gets the chance.
Now at the bottom of page 143 is another passage in Mr. Maconn's
report which I wish to read. He says:
I was repeatedly told by agents of the United States Government that wlienever
females were seen coming from the water they had been out to sea for food. This
was manilestly absurd, as when the morning was cold it was apiiareut that few seals
were absent from the rookeries, but if the sun afterwards came out, or the day gi'ew
warmer, hundreds of seals would be seen going to the water, and late in the after-
noon, or towards evening, as it became cooler, they would return to their respective
harems. At such times the water from 100 yards or so in front of the rookery would
be black with seals, while fnrtlier out but few — and sometimes none — were to be
seen. Many females were watched from the time they left the harem until they
were lost among the multitude of swimming seals. They would slide into the water
and roll about with evident enjoyment for a few minutes, and then come out upon
some rock ; after a short rest they returned again to the water. Though a careful
watch was often kept, no cow was ever seen by me to enter the water and swim out
to sea.
On the 23rd July, at Lnkannon and Ketavie rookeries, more than half the seals
were in the water, but careful examination, through lield-glasses, of the sea in front
of these rookeries, neither showed seals coming towards the land nor going from it.
During the seasons of 1891 and 1892, but more especially in 1892, I spent much
time at sea in the vicinity of the seal islands, and during both seascms kept a careful
count of the number of seals seen in the water. It was noted in both years that
while the seal were very abundant in the immediate vicinity of the rookeries, and
few were always to be seen between 2 and 3 miles from the islands, very few were
after that to be seen until we had gone a long di.stance out to sea. It is thus evident
that the number of seals going to and from the islands is very small.
On the 11th September, when on H. M. S. "Melpomene" we steamed from North-
east Point to the village of St. Paul— a distance of about 11 miles — being nevermore
than 3 miles from the shore, and most of the time much nearer to it, when off North-
east Point, Polavina and Reef rookeries, thousands of seals were, with the aid of
field-glasses, seen playing in the water near the shore, but very few close to the ship
at the distance stated from the land.
I mention that, Mr. President, in order to show you that Mr. Macoun
had opportunities of investigation, exercised those oj^portunities, and
has recorded the results of his observation I submit, fairly; and it
leads to the natural conclusion, namely, that these female seals would
go into the water according to their inclination, especially if the
weather was hot, for the purpose of cooling themselves, or for the pur-
poses enjoying the water and then coming out again; whereas the
United States asks you to believe that no female seal ever goes into
the water except for the purpose of going away and getting food and
coming back. It seems to me to be a somewhat extravagant assump-
tion, and I shall ask the Tribunal when they have considered this and
the further evidence, to come to the conclusion that the view submitted
by Great Britain with regard to this point is not without ample war-
rant having regard to the evidence which is before the Court.
ORAL ARGUMENT OF SIR RICHARD WEBSTER, Q. C. M. P. 119
Lord Hannen. — The difficulty I feel about this is that there is a
great drain on the males; that nature has siii)plied means of providing
for that drain : there is a great drain on the females during the time of
nursing, but there is no evidence that nature has supplied them with
any additional reserve of fat.
Sir Richard Webster. — I do not think it is quite "no evidence''
my Lord. 1 am not sure whether there is any evidence of the emacia-
tion of the females after the period of nursing. I am very much
obliged to the Court for indicating any point upon which they think my
statement requires further support. I call attention to the fact — it
must be only a question of degree — that there must be that drain, ex
concessis for a considerable time — I say from 14 to 17 days or three
weeks. The whole significance of this, my Lord, is, during what period
the pup is dependent on the mother. It is not a question of whether
or not the female feeds — the question is, whether a female that is killed
is one ui)on whom the life of a pup depends; because there is nothing
morally wrong from the point of view.
Lord Hannen. — We are merely on the natural history point.
Sir EiCHARD Webster. — Quite so, there is nothing wrong from the
point of view of the killing of a female. All I meant is, the LTnited
States argument proceeds on three assumptions, everyone of which I
shall submit later on, are unjustifiable. First: that every female seal
killed at sea has got a pup on the ritokery ; secondly : that every female
seal killed at sea has already been impregnated so that she is going to
produce another seal; and next they boldly state that the pelagic sealer
who kills a female seal kills three seals at the same time. I will not of
course refer to the passages in Mr. Coudert's speech on that. They
appeared to me at the time as being extremely exaggerated. My sole
object in examining this is not for the purpose of saying that female
seals never feed for any given time, which 1 can fix, after the birth of
the pup, but I submit to the Court that upon the evidence they are not
shewn to go out to feed until a time when there is reasonable ground
for supposing that the pup is to a great extent independent of the abso-
lute necessity of the sui)x>ly from its own particular mother or from any
mother at all.
Mr. President, it is no part of my case — not the least necessary to
my case — to suggest that these fenmles must fast for two months, or
anything of the kind. I have understated the period with regard to
the males, for it appears to be nearer three months; but however, it is
no part of my case to suggest that these females are to be subjected
and must be subjected to that draft u])on their strength. My w^hole
jioint is to endeavour that the court may have fairly before them the con-
siderations which bear upon what I may call the necessity for regula-
tions in connection with the preservation of seal life; and I submit that
so far as the evidence, apart from mere surmise and apart from mere
assumption, is before the Tribunal, it would seem that the period when
the pup is absolutely dependent upon the mother is, roughly speaking,
from three to four weeks at the outside, and that after that time,
whether the mother goes to sea to feed or not is, comparatively speak-
ing, immaterial.
My Lord, with regard to the spreading of the seals out upon the
shores upon the islands, I desire to call attention to an extract from
Mr. Elliott's Eeport for 1881.- Now, Mr. President, having read this
extract, I propose temporarily to make a digression, once and for all,
with reference to the way in which I am going to use Mr. Elliott's
Eeports and the evidence that I think ought to be before you in con-
120 ORAL ARGUMENT OF SIR RICHARD WEBSTER, Q. 0. M. P.
nection with them. The statement with regard to the seals that 1 i)ro
pose to read is at page 40 of Elliott's Eeport of 1881,
Mr. Justice Harlan. — The one that was published in 1881?
Sir EiCHARD Webster. — Published in 1881 by the United States
Government. It is what Mr. Foster called the Tenth Census Report.
Mr. Foster. — Prepared upon observations made from 1872 to 187G.
Sir EiCHARD Webster. — Very likely so; but this is a republication.
It had been previously published, as I shall show in a moment or two,
in earlier years.
The paragraph is headed " Young Pups learning to swim."
Early in August, usaallj'^ by the 8th or 10th, I noticed one of the remarkable move-
ments of the season. I refer to the jiup's lirst essay in swimming. Is it not odd —
paradoxical — that the young seal, from the moment of his birth, uirtil he is a month
or six weelis old, is utterly unable to swimf If he is seized by the nape of the neck
and pitched out a rod into the water from the shore, his bullet-like head will drop
instantly below the surface, and his attenuated posterior extremities Hap impotently
on it. Suffocation is the question of only a few minutes, the stupid little creature
not knowing how to raise his immersed head and regain the air again. After they
have attained the age I indicate, their instinct drives them down to the margin of
the surf, where the alternate ebbing and flowing of its wash covers and uncovers
the rock or sandy beaches. They first smell and then touch the moist pools, and
flounder in the upper wash of the surf, which leaves them as suddenly high and dry
as it inmiersed tliem at first. After this beginning, they maiie slow aud clumsy
progress in learning the knack of swimming. For a week or two when overhead in
depth, they continue to flounder about in the most awkward manner, thrashing the
water as little dogs do with their fore-feet, making no attempt wliatever to use
the hinder ones. Look at that pup now, launched out for the first time beyond his
depth; see how he struggles — his mouth wide open and his eyes fairly popping. He
turns instantly to the beach, ere he has fairly struck out from the point whence he
launched in ; and as the receding swell, which at first carried him ott' his feet and
out, now returning, leaves him high and dry for a few miuutes, he seems so weary
that he weakly crawls up out beyond its swift returning wash, aud coils himself up
immediately to take a recuperative nap. He sleeps a few minutes, perhaps half an
hour, then wakes as bright as a dollar, apparently rested, and at his swvimming
lesson he goes again. By repeated and persistent attempts, the young seal gradually
becomes familiar with the water aud acquainted with his own power over that ele-
ment, Avhich is to be his real home and his whole support. Once boldly swimming,
the pup fairly revels in his new happiness. He and his brethren have now begun to
haul and swarm along the whole length of St. Paul coast, from Northeast Point
down and around to Zapadnie, lining the alternate sand beaches and rocky shingle
with their plump black forms.
I now read from page 141 of Volume I, Appendix to the British
Counter Case, from Mr. Macoun's report:
The first pups I saw swimming in 1892 were in the water in front of North rookery
on St. George Island, the 18th July. The day was bright and warm, and the tide at
the time of my visit was just beginning to flow. A great many pujis were playing
in the pools among the rocks near the edge of the sea; in one place there were forty
or fifty going, in many others more than half that number, while all along the shore
the young seals were in little groups of from three to ten. No old seals were near
them but those swimming about in the water and those going to and coming
from it. As the tide came in some of the pups slowly retreated, but many of them
remained among the rocks until the water was some distance beyond them. They
played about in much the same way as hollnschickie do, and swam from one rock to
another and back many times, with no appreciable interval of rest. I neither at this
time nor on any other occasion saw an old seal attempt to teach a pup to swim nor
carry it to the water; nor did I ever see anything that would lead me to suppose that
pups learned to swim. On the contrary, a pup cut from its mother can swim for a long
time. Ten days later these pups had inci'eased considerably in size, aud were swim-
ming and playing about in tlie water in great numbers, seeming as much at home
there as the older seals did ; a few of them were 50 or 60 yards from the shore diving
without apparent effort through the large waves that were coming in.
Early in August j)"ps had begun to haul out with the holluschickie on the North
side of Lukannon Rookery, nearly a mile from the rookery, and by the middle ot
that month a great many of them were to be seen far liom the rookery grounds.
They were of course, in greatest numbers in front of and near.
ORAL ARGUMENT OF SIR RICHARD WEBSTER, Q. C. M. P. 121
I tliiuk, Mr. President, it ^yould save you a little trouble if I asked
you to be kiud euougli to take the cliart of the rookeries. Would you
kindly take before you — I will have to refer to it a little later on — Chart
2 of the Pribilof Islands, in the United States Gavse. If you will turn
it with the north from you, the way the map is written, you will see
Keef Eookery, Lukaniion Kookery, Polaviua Rookery.
Lord Hannen. — Which island f
Sir Richard Webster. — 1 am on St. Paul's Island entirely, the
larger of the two. You will hud Zapadnie Rookery, Tolstoi Rookery,
Reef, Lukannon and Polaviua. I shall have to refer to that map
later on.
They were of course in greatest nutabers in front of and near Lukannon, Ketavie and
Eeef iiookeries, but they extended in an unbroken line from Lukannon to the laud-
ing place at the village. —
That, my Lord, is all the way around that point, Grarbatch Rookery,
right around to the village. The landing place of the village is where
Village Cove is written. The landing referred to by Mr. Macoun is at
Villase Cove —
^w
in places mixed with holischickie, but very frequently there were no older seals near
tliem. At Black Bluif and between Zoltol Saudsand the Village landing place, large
bands of pups swam about from place to place or hauled out on the rocks and sand.
It does not seem possible or probable that the mother seals should tind their own
young ones among so many and at such a distance from the breeding ground; and
during the whole time I was on the Pribilof Islands I never saw a female seal suckle
a young one except on a rookery.
We have got this from the observation of Mr. Macoun, and we have
got it from the statement made by Mr. Elliott long before, that from
Northeast Point down to Zapadnie — You will see, Mr. President, that
Northeast Point is up at the extreme end of the island ; Zapadnie is the
westernmost of the rookeries, my Lord, a little to the left of the village;
and Mr. Elliott describes the pups that have just learned to swim as
having hauled out and swarmed along the whole length of St. Paul's
coast from Northeast Point down and around to Zapadnie.
It seems to me — I must not put it higher than that — as not an unrea-
sonable suggestion to make, that the pups being born some where
between — speaking roughly — the 20th of June and the first week in
July. By the beginning of August they are found spread all the way
along the coasts of that island. It does not seem to me an unreasonable
inference to draw that after that time they are independent of their
mothers; and I ask the court to observe that when the evidence shows
us that no female seal has ever been seen, according to the evidence,
giving suck to a pup except upon a rookery, it is a very strong corrobo-
ration of the point which I am pressing ujion the Tribunal, that after
the pups scatter, are podded out and spread along the islands, they are
either wholly, or comparatively speaking independent of their mothers.
Would the President kindly follow on to page 141, the next passage:
From the time the pups first go into the water, they are to be seen with pieces of
sea-weed in their mouths, and there is no reason for doubt that from this time until
they leave the island, at least a considerable ])ortion of their food is composed of sea-
weed picked up along the shore or in the waters adjacent to it. Mr. Elliott says
that he knows fur-seals feed to a limited extent upon crustaceans and squid, and also
eat tender algoid sprouts. Perhaps the seals live upon crustaceans and squid for the
first five or six mouths they are at sea. Squid, as has been shown in another part of
this Report, are plentiful near the seal islands.
Now, Mr. President, the proposition which I am contending for is
this: that after the first four or five weeks, to put it most against
myself, the seals are in such a condition that they are practically inde
122 ORAL ARGUMENT OF SIR RICHARD WEBSTER, Q. C. M. P.
pendent of their mother; and I shall call attention to that later on in
connection with the evidence which I have to call particnlar attention
to about the killing of females with milk in their breasts at sea at cer-
tain times later in the year.
I want now to make a digression in order to save repetition later on.
This is the first reference that I have made to Mr. Elliott. I ask per-
mission of the Tribunal for a very few minutes to let me put clearly
before them what are the facts with regard to Mr. Elliott, his position
and his reports, for of all things that are astonishing in the conduct
of this case the abandonment of Mr. Elliott's report of 1890 is the most
astonishing. Sir, there is not the slightest ground in the evidence or
in anything before the court for regarding Mr. Elliott as other than a
man of impartiality and of accuracy; but I am not going to allow it to
remain upon my statement or upon anything which I cannot vouch for
from the documents. May I for a few moments before the court
adjourns put this matter before them as briefly as possible.
You will remember, Mr. President, that Mr. Elliott was appointed
under an act of Congress. He has made statements in his report to
which I shall come later on in my argument — statements of fact that
are absolutely inconsistent with the United States case. Tliat may be
a good reason for suppressing his report or it may be a bad reason.
So far as I know upon the whole of this evidence it is the only reason
that can fairly be suggested. Now, Mr. President how does the matter
stand? There are categorical statements of fact, extending over many
days in Mr. Elliott's report, to which I have to call attention later,
which are capable of distinct contradiction. He was accompanied on
that visit in the year 1890 by not less than four Government agents,
Mr. GofC, Mr. Nettleton, Mr. Lavender and Mr. IMurray. There was
also present on that island during a great part of the time a perfectly
independent gentleman, Prof. Palmer. I am quite aware that Mr.
Foster has said that they do not agree with Mr. Palmer's conclusions;
and I was not surprised, 'for whenever.
Mr. Foster. — 1 did not say that.
Sir Richard Webster. — I so understood you.
Mr. Foster. — I said a great many of them.
Sir EiCHARD Webster. — For whenever a statement is made, or evi-
dence is given, I am aware, against the view of the United States, the
United States do say that they do not agree with that; and of course
they are quite within, their rights. But my point is this, Mr. President;
and I ask the court to consider this in fairness to the case I am pre-
senting: that of those four gentlemen though they make affidavits on
some minor points, to which I shall call attention later on, not one of
those ibur gentlemen has made any affidavit inconsistent with Mr.
Elliott's statements of fact. Nay, more; Mr. Stanley Brown was sent
to the islands in 1891, Mr. Elliott having made his report in the autumn
of 1890. I do not know whether Mr. Stanley Brown had Mr. Elliott's
report in his hand or not. W^e have never been told, and I have no
right to assume it; but one thing is certain, he either had it or he had
it not. If he had it, he has not contradicted Mr. Elliott on the most
important and salient facts, as I shall show later on. If he had it not,
I do not think the court will think it was the right thing to send a per-
fectly independent gentleman to the islands without giving him some
information at any rate as to what the report was which had been pre-
sented to the Government by their accredited agent. Therefore, the
first point tliat I make with regard to this is that on three separate
occasions Mr. Elliott has been put forward by the United States Gov-
ORAL ARGUMENT OF SIR RICHARD WEBSTER, Q. C. M. P. 123
ernmeiit as being the most experienced person who could possibly give
information with regafd to seal life. He has been put forward and
chosen with that object; and at no stage, Mr. President, prior to this
case have the contents of that report from whicli I read the extracts — 1
mean the report of 1881 — been impeached until the matter came in
controversy to-day. You may remember when Sir Charles Knssell
quoted from tliat report, stating that he did not understand that to be
attacked, my learned friends said they had not referred to it and
they must not be understood as agreeing at all in Mr. Elliott's earlier
conclusions.
But now, if the court will give me a very few moments with regard
to this matter in order to complete it, I am in a position to put before
the court that which I certainly had not the opportunity of doing a few
days ago. I happen to have before me the report of the debate in the
House of Eepresentatives and in the Senate when this gentleman was
appointed; and I read from the public Congressional liecord.
Mr. Carter. — Is that in the case"?
Sir EiOHARD Webster. — It is not.
Mr. Carter. — Then we object.
Sir EiCHARD Webster. — I read from the public document of the
Congressional Record of what happened in the Senate when Mr. Elliott
was appointed.
The President. — Is that an official paper?
Sir Richard Webster. — And I would tell you also that I am going
to read from the letter written from the Treasurj^ Department at Wash-
ington, an official letter.
Mr. Phelps. — Will my friend excuse me. If we are permitted to put
in evidence from the public documents and elsewhere on the other side
of this case when we come to reidy, I have no objection to your reading
the observations of any member of Congress on this subject.
Sir Richard Webster. — Mr. Phelps, I should not object, if it were
for me, to any public document being referred to upon this or any other
question; because in my opinion
Mr. Phelps. — We should be glad to read the Secretary of the Treas-
ury's letter that accompanied this report and some other matters. If
we are to try Mr. Elliott we had better try him upon the evidence on
both sides.
■ Sir Richard Webster. — Yes, I quite agree. Mr. President would
you prefer that I should suspend for the present"?
The President. — If there is an objection I think it would be better
for you to suspend.
Sir Richard Webster. — Before we adjourn will you allow me to
state that I proposed to read the official letter of the 13th of March.
Lord Hannen. — That stands on a different footing than the matter
to which objection was raised.
Sir Richard Webster. — Oh, no.
Lord Hannen. — I thought you were going to read reports of speeches
in Congress, and that I understood was objected to.
Sir Richard W^ebster. — It was not my fnult, my Lord, that inter-
position was made before I had the opportunity of explaining myself
fully. I was going to read from the letter of Mr. Batchelor, the Acting
Secretary, from the Treasury Department, office of the Secretary at
Washington, the 13th of March, 1890. My only reference to it is the Con-
gressional Report. When that letter had been read I did subsequently
intend to refer to some of the observations made in the debate. I wish
the court to have exactly before them what my proposition is.
The Tribunal thereux)on adjourned for a short time.
124 ORAL ARGUMENT OF SIR RICHARD WEBSTER, Q. C. M. P.
The President. — Before you proceed, Sir Ricliard, we sliould like
to have a few words together.
The Tribunal then proceeded to consult for a short time.
Sir KiCHARD Wetister. — I have had an intimation, Mr. President
from my learned friend, Mr. Phelps, who is always courteous in these
matters, that may save the Tribunal further trouble with reference to
their consultation.
He does not propose to make any suggestion against Mr. Elliott other
than can be gathered from the fiice of the Report itself in the way of
criticism, and I do not wish to introduce any extraneous matter with
a view of either commenting upon or raising any comment upon Mr.
Elliott personally, it being open both to my learned friend, Mr. Phelps
and myself to criticize the Report itself. Therefore it is not necessaiy
for me, as there is nothing before the Tribunal, to bring forward any
independent testimony with regard to it.
The President. — The Report having been admitted, it is better to
proceed on that alone.
Sir Richard Webster. — It is very satisfactory to me, because my
learned friends have, whatever the objection may have been, met us in
a way that is fair, when it was necessary to dismiss or get rid of mat-
ters for the purpose of shortening the proceedings. The Tribunal will,
of course, see why I was anxious that they should have sufficient infor-
mation to enable them to judge of the merits of the Report, and I am
willing to take it upon the Report itself. Therefore I pass from that.
The Report, as you will see, bears on its face matter which may be
criticized and also evidence both of great accuracy and obvious verac-
ity, as we shall submit. I am very glad indeed that the occurrence of
the incident will enable me to shorten the time of my argument by not
having to refer to certain documents which have been put into my
hands.
Now, Mr. President, Lord Hannen was good enough to put a question
to me, and I apologize for not having the answer ready at the moment,
as to whether there was any evidence of the emaciation of females.
Lord Hannen. — Well, it was rather the other side of it. My ques-
tion was whether there was any evidence of their having a store of fat
like that of the males.
Sir Richard Webster. — Well, my Lord, I will not apologize to this
Tribunal for not being able to answer any question at the moment it is
asked. It is difficult to carry all the facts in one's memory, but my
learned friend, Mr. Robinson, has been good enough to remind me of a
passage which we should read in another connexion which will be found
at page 214 of the British Counter Case from a book of undoubted
authority by Professor Allen. I will look at the rest of the book
to-night to see if there is any other authority on the matter, but this
appears to me bear directly upon Lord Hannen's question.
The habit of prolonged abstinence at the breeding season is well known to be nor-
mal among the rinnipedia as a whole; and notwithstanding the number of years over
which the habits of seals have been observed, there is no record of food being found
in the stomachs of females when killed upon the islands, or any facts that justify the
statement that nursing females leave the islands on feeding excursions.
Writing particularly of the eared-seals (or fur-seals and sea-lions). Professor Allen
Bays :
One of the most striking features in their history is that at this period [that of
reproduction], both sexea pass weeks, and even months, without food, or without
oiten visiting the water. Arriving at the breeding-grounds exceedingly fat and
un wieldly, they seem to be sustained by the fat of their bodies, they finally leave at
the end of the breeding season greatly emaciated.
A similar fact has been long known in respect to the walrus, whose period of
fasting, however, seems to be shorter than that of the eared-seals.
ORAL ARGUMENT OF SIR RICHARD WEBSTER, Q. C. M. P. 125
Then in this Monograph of 1880, Professor Allen writes on the same
subject:
The males, diiring the breeding season, remain wholly on land, and they will suffer
death rather than leave their chosen spot. They thus sustain, for a period of several
weeks, an uninterrupted fast. They arrive at the breeding stations fat and vigor-
ous, and leave them weak and emaciated, having been nourished through their long
period of fasting wholly by the fat of their own bodies. The females remain unin-
terruptedly on land for a much shorter period, but for a considerable time after their
arrival do not leave the harems.
I will look to see before to-morrow whether there is any other evidence
with regard to the sustenance of the female during this period being-
drawn from the fat. It is plain that Professor Allen in his earlier ref-
erence which I cited there refers to the fat of their bodies in the case
of both sexes enabling them to fast from the time they do, notwith-
standing the strain there is on their system.
This is by no means the only evidence. There are two other branches
to which I propose to call attention which are in my submission of very
great importance. The first is that speaking of the seals whose bodies
have been opened prior to this Case, male and female; speaking of the
female particularly, until this case commenced there is no evidence at
all of anything being found in their bodies. There is one passage in
Mr. Stanley Brown's later aftidavit, of 3 female seals being killed at a
late date to which I will call attention presently, one of which was
found to have food in it. That is the only evidence, but of the ftict
that the female seals which have been killed in large numbers, for the
purpose of examination only, have no food in them, is spoken to by
abundant testimony prior to this case. Next there comes the natural
fact to which I must refer, though the subject is somewhat unsavoury,
and that is the absence on the rookeries of any excrement or any
excreta of any sort or kind.
Lord Hannen. — Ui)on that may I make a suggestion, simply for the
purpose of acquiring information! May not they have habits of clean-
liness which would account for it? I am simply enquiring, but may
they not go into the water to get rid of any excreta?
Sir EiCHARD Webster. — There is no evidence of their doing so.'
Lord Hannen. — It only passed through my mind; that was all.
Sir KiCHARD Webster. — And I may say, my Lord, that it was
present to our minds too, and we endeavored to see if there was any
evidence of that kind, but there is none. It would be a very remark-
able incident, having regard to the time that they remain on land, and
their general habits if it w^ere so; but the evidence is particularly
strong, and it is my duty to call the attention of the Tribunal to it.
Now I would ask the Tribunal to refer to paragraphs 232 to 235 of
the British Commissioners' Eeport.
232. Some particulars are given on a later page respecting the abstention from
food of the fur-seals while remaining upon or about the breeding islands. It appears
to be certain that the mature males doing duty on the breeding rookeries do not feed
at all during the breeding season, and that for some time, at least several weeks,
after landing, the breeding females do not leave the rookery grounds in search of
food. There is no apparent reason why the " holluschickie," or young males, should
not go to sea in quest of fish. Singularly enougli, however, though animals of this
class have been killed by hundreds of thousands upon the breeding islands under
all conceivable conditions of weather, and often within less than an hour of their
deportation from their hauling-grounds, the almost universal testimony is to the
effect that their stomachs are invariably found to be free from food.
233. With a view to obtain such direct information on this subject as might be
possible, the stomachs of seals killed in our presence were examined; and though
the results of these examinations, noted below, do not entirely confirm the state-
ment just referred to, they show a remarkable absence of food. The number of
seals which it was thus possible to examine was of course small.
126 ORAL ARGUMENT OF SIR RICHARD WEBSTER, Q. C. M. P.
Then occur the references to 2,0 seals killed on St. George, and 18
seals on St. Paul, the result of which is as to the male seals — that no
particle of food was found in any of them.
Then:
From the large North rookery on Behriug Island, 5th September, an adult male or
"seacatch," two females, and au nnweaned pup, Avere driven directly from the rook-
ery ground, about 200 yards distant, and killed, by permission of the authorities,
for presentation by us as specimens to the British Museum. The stomachs of all
four were completely empty, with the exception of a few worms in those of the three
adults. Not only the pup, but the females, and oven the old male, were fat and in
good condition.
And ill this connection 1 mention, but do not read, Mr, President,
paragraph 306, which was read by me yesterday during the Attorney
General's argument, which bears directly upon this.
Now I call your attention to paragraph 242.
Perhaps the most notable leature in regard to this food question, and one directly
consequent on the prolonged abstinence of the seals from food while on and about
the islands, is the entire absence of all excrement on the rookeries and hauling
grounds. Captain Bryant appears, however, to be the only author who has specially
mentioned this particular and striking fact. He writes:
"The fact of their remaining without food seems so contrary to nature, that it
seems to me proper to state some of the evidences of it. Having been assured by the
natives that such was the fact, I deemed it of sufficient importance to test it by all
the means available".
I hope the Tribunal will kindly follow this a little carefully, because
in a later affidavit, contrary to all the other testimony, and contrary to
his own testimony before given in this respect, Mr. Stanley Brown
expresses the opinion that excrement is to be found on the rookeries.
I shall contrast those two statements in order to show that I think he
is mistaken in the opinion he forms upon that.
Accordingly, I took special pains to examine daily a large extent of the rookery,
and note carefully the results of my observations. The rocl^s on the rookery are
worn smooth and washed clean by the spring-tides, and any discharge of excrement
could not fail to be detected. I found, in a few instances where newly-arrived seals
had made a single discharge of red-coloured excrement, but nothing was seen after-
wards to show that such discharges were continued, or any evidence that the ani-
mals had partaken of food. Tliey never left the rocks except when compelled by
the heat of the sun to seek the water to cool themselves.
That bears on the question that his Lordship put to me.
They are then absent from the land for but a short time. I also examined the
stomachs of several hundred young ones, killed by the natives for eating, and always
without finding any trace of food in them. Tlie same was true of the few nursing
females killed for dissection. On their arrival in the spring they are very fat and
unwieldy, but when they leave, after their foiu* months' fast, they are very thin,
being reduced to one-half their former weight.
I cannot help calling attention to this, that this is evidence written
by a competent gentleman, a gentleman who is a witness for the United
States, and writing independently of any controversy or any question,
simply with a desire, no doubt, to tell scientifically what was the actual
fact-
Senator MoRGrAN. — Does the evidence show, or is there any state-
ment of the weight of those females when they arrive, and the weight,
when they go out.
Sir KiCHARD Weester. — N'ot comparatively, Mr, Senator, but there
is abundant evidence about various ages. There is no comparison. It
could not be taken ; and there are no statements beyond the fact that
they are emaciated and thinner.
Senator Morgan. — And no statement of what they weigh when they
arrive in this condition?
Sir E-icHARD Webster. — No.
ORAL ARGUMENT OF SIR RICHARD WEBSTER, Q. C. M. P. 127
Mr. Justice Harlan. — Is there any evidence as to what the females
weigh when they arrive'?
Sir Eichard Webster. — No, only at various periods of their life.
There is evidence that at tlie period of three years old they weigh so
much, and when four years old they weigh so much.
Mr. Justice Harlan. — What are those weights?
Sir Eichard Webster. — Well, unless you wish me to give it now
I have it in connection with another i)art of the case, and I could not
exactly give if off-hand.
Mr. Justice Harlan. — That will do.
Sir Eichard Webster. — My recollection is that a female that bears
young weighs about 80 pounds, I think it is, but 1 am afraid I must
ask the Tribunal to let me correct that if necessary.
Senator Morgan. — It must weigh more than that.
Sir Eichard Webster. — I think not, speaking of the female, but
do not let it be assumed that I state it positively, because I am not pre-
pared to answer the question at the moment. I have it in connection
with another matter.
At page 46 of Mr, Elliott's first Eeport, it will be seen in one week
they are from 6 to 7^ lbs; 6 months, 30 lbs; 1 year, 30 lbs; 2 years,
58 lbs; 3 years, 87 lbs (you see my memory was not very far out); 4
years, 135 lbs ; 5 years, 200 lbs ; 6 years, 280 lbs ; and from 8 years to 20
years, 400 to 500 lbs.
Senator Morgan. — Those are male seals'?
Sir Eichard Webster. — Both; that is the table showing the
weight, growth and size of the fur-seal from the i>up to the adult, male
and female; and he adds this as to the weight of female seals.
The adult females will correspond with the 3 year-old males in the above Table,
the younger cows weighing frequently only 75 lbs, and many of the older ones going
as high as 120 lbs; l)ut an average of 80 to 85 lbs is the rule. Those specimens of
the females which I weighed were examples taken by me for transmission to the
Smithsonian Institution; otherwise I should not have been permitted to make this
record of their weight, inasmuch as weighing them means to kill them; and the
law and the habit, or rather the prejudice, of the entire community up there is
unanimously in opposition to any such proceeding, for they never touch fenuiles
here and they never set their foot on or near the breeding grounds on such an errand.
It will be noticed also that I have no statement of the weights of those exceedingly
fat and heavy males which first appear on the breeding grounds in the Spring.
Those which I have referred to in the Table above given were very much heavier at
the time of their first appearance in May and June than at the moment when they
were in my hands in July, but the cows and the other classes do not sustain pro-
tracted fasting, and, therefore, their weights may be considered substantially the
same throughout the year.
Then at the end of paragraph 242 in page 42 of the British Eeport
there is a statement which I think was read yesterday but the lastx)art of
paragraph 243, was not read which is the commissioners own statement.
Though not at the time aware of Bryant's statement, above quoted, the absence of
excrementitious matter was one of the first points noted and remarked on by us
after landing upon the Pribilofi" rookeries, and it is to the absence of such matter
alone that the continuous herding together on one spot for several months of so
many thousand animals is on sanitary grounds rendered possible.
I remember that it was read.
Now I have read suflQcieutly from the Counter case and if you will
kindly turn to page 144 of volume 1 of tlie Appendix to the Counter
case you will find some very important evidence by Mr. Macoun on that
matter.
No visit was paid to any rookery on either St. George or St. Paul without a careful
examination of the rookery and hauling-grounds being made, for the purpose of
recording the amount of excrement to be seen on them; the matter being Of iuipor-
128 ORAL ARGUMENT OF SIR RICHARD WEBSTER, Q. C. M. P.
tancein connection with the qnestion of the feeding or abstinence of seals during
the breeding season. Shortly before labour began a female was sometimes seen to
void a small quantity of excrement; once only, in addition to this, did I see excre-
ment on rookery-ground that had not been voided by pups. In the instance referred
to, Mr. iJrown who was with me at the time said that it was probably from a female
that had recently come ashore.
That is Mr. Stanley Brown who is referred to there.
In this connection Captain Bryant may be quoted. He says :
I found, in a few instances, where newly-arrived seals had made a single discharge
of red-coloured excrement, but nothing was seen afterwards to show that such dis-
charges were continued, or any evidence that the animals liad partaken of food.
Mr. Vincent Colyer, in his Report to the Secretary of the Interior, dated 18th Feb-
ruary, 1870, likewise says :
The assertion that the fiir-seal eats but little food from June to September may
be true ; certainly, there was little or no offensive excrement even in October, when I
believe it is acknowledged that they do get some food from the water.
On the 27th July a large piece of fresh light-coloured excrement, firm, and of
cylindrical form, was noticed on the ground where holluschickie had been; a great
many worms such as are found in seals' stomachs were mixed with it.
A large harem, the resort of over 300 seals, near the west end of Reef rookery,
was visited by me almost daily, and excrement was always carefully looked for.
This harem lay just beneath an overhanging bank, and the opportunities for obser-
vation were excellent; but, though between twenty and thirty visits were made to
this place, no excrement was ever seen either on the breeding-ground, or the slope
leading to it, with the exception of very small pieces voided by pups which differs
greatly from that of older seals, both in shape and colour. While it is certain that
holluschickie go to and from the water at all times, and when the weather is warm
quit the land almost en masse, there is no satisfactory evidence to show that they
feed while in the water. Several hundred stomachs were opened in my presence
during the summer of 1892, and no trace of food was found in any of them, though,
while struggling together in the killing-ground, some of them voided a small quan-
tity of dark yellowish excrement.
ISTow the suggestion is made for the first time in the evidence in con-
nection with tlie United States Counter Case that this absence of this
sign is due to the ground being such that the excrement is soaked up.
While in the first place the evidence is conclusive as to the dejecta of
the animal that it cannot be of that character, you would not expect it
to be, and it is not in fact — if the Tribunal desire further information,
though no further information is necessary, than that contained in Mr.
Macoun's report there is of course the most direct testimony in regard
to the matter in the statement annexed to the Supplemental Eeport of
the British Commissioners. I do not at present refer to it because I do
not desire to give rise to anything as to which discussion can take place,
but if the Tribunal have any doubt I shall ask them to refer to it later
on. They can find it out for themselves in Paris without referring to
the supplemental Eeport. I desire to call attention to the character of
this; and I would direct your attention to Mr. Stanley Brown's first
affidavit when no suggestion had been made at any time, that either on
the rookeries or elsewhere, was excrement to be found. This is on
page 12 of the 2nd Volume of the AjDpendixto the United States Case,
under the heading "Eookeries":
As a result of the volcanic origin of the islands, their shores are, with few excep-
tions, either made up of bowlder-strewn lawledges or covered by jagged fragment s
of basalt of all sizes, the sharp edges of which are only slightly worn by the seals
flippers or more comiiletely rounded by the waves at the water's edge. There are a
few true sand beaches, occasional level areas are found at the back of the rookeries,
and in some places between the rock masses comparatively smooth interspaces occur,
but even the level portions referred to must be reached by crossing a wide belt of
bowlders of all sizes that have been pushed landward by the waves and by the ice
which annually surrounds the islands. It is upon such shores that the seal "rook-
eries" are located. Of the ruggedness of these shores or of the irregularity "and
confusion of the lava blocks tliat cover them it is difiicult to form a picture, but it
is iu a measure indicated in the accompanying photographs".
OKAL ARGUMENT OF SIR RICHARD WEBSTER, Q. C. M. P. 129
And if you will kindly turn and look at that photograph and see the
character of the rocks, part of the reef rookery, on iSt. Paul's Islands
and remember the seals remain on those rookeries for weeks after going
into the water, both male and female, I do not tliink it is saying too
much when I suggest to you that tlie idea that tlie solid and hard dejecta
and excreta of these animals can be soaked up so as to disappear will
not commend itself to the mind of tlie Tribunal so far as it is necessary
to decide this point; and yet it is the fact that this absence of excre-
ment and excreta was common ground with everybody till the United
States Counter Case, and then they do not go to the people who have
known these rookeries for years, they do not go to the persons who
would have been able to say from the knowledge of 20 years, but they
go to Mr. Stanley Brown who, in his later affidavit, says that this
absence of it is to be accounted for by it having- soaked in to the ground
to a certain extent. I think I am not doing an injustice to him when I
say that that is scarcely to be credited as an opinion in the face of the
evidence to which I have already called attention. In the same Vol-
ume will be found Mr. Morton's account of the rookeries at page 66.
Senator Morgan. — When you say that the seals old and young
remain without food on the Islands there for 5 or 6 weeks, do you mean
also to say. Sir Richard, the males and females, — do you mean the old
and the young females?
Sir Richard Websier. — No; I did not mean old and young, if you
include pups in old and young. I Avas speaking of the females and par-
ticularly I had in my mind the females whom it is suggested go out to
sea for food and come back again during the period of nursing. My
contention is this, and it is one ujion which I ask the jndgment of the
Tribunal, that t]ie females do not leave for food substantially, (I do not
say that they do not ever go) till the independence of the pup with
regard to the mother is practically complete; at that time, they leave
to go to sea for food, the necessity of their being there having, jiracti-
cally speaking, disappeared. That is shown by two facts; that very
shortly afterwards, that is to say within a few weeks, the pups are to
be found at a considerable distance along the shore spread all along,
and that at no time during the continued sojourn of the female upon
the Island is any excreta to be f lund at any place where she has been.
That is my contention, on which I ask your judgment when you come
to the evidence.
jS^ow, I was calling your attention to the character of the rookery
ground; and in Mr. Morton's affidavit, at page 66, you will see this:
During the seasons of 1877 and 1878, while serving iu the caparity of special
Treasury Agent, I devoted my best attention and study to this subject. It may be
said in the start that the grounds held by the fur-seals are known at the islands as
"rookeries" and hauling "'gr')unds." On the former are found the breeding seals,
namely, the full-grown males not less than six years of age, and females of three
years old and upwards. The grounds comprising the rookeries slope upward from
the sea in a gradual and e;isy manner, and are characterized by hard dry surfaces of
volcanic cement or basaltic rock. They are readily accessible from the water and
possess other favorable conditions for occupancy by the seal life.
Now that is the condition of the rookery gronnd spoken to by
Captain Bryant; that is the condition of the ground spoken to by
Mr. Stanley Brown ; that is the condition of the ground spoken to by Mr.
Morton before any question had been raised suggesting that the dejecta
from these animals might disappear into the soil absolutely impossible —
inconsistent with all the known facts. Upon that 1 ask attention again
to the British Commissioners' Report because they examined this mat-
ter, because there is no one that would suggest with reference to this
B S, PT XIV 9
130 OEAL ARGUMENT OF SIR RICHARD WEBSTER, Q. C. M. P.
Eeport, that if ]^r. Dawsou and Sir George Baden Powell liad found
the fact of excreta on these rookeries they would not have stated it.
]i^ very single fact they did discover in this matter, however it told — and
there was no reason to think it would tell in their favor at the time they
made this Keport — they have stated every single fact in the case as it
came to their knowledge without bias or colour.
Now at ParagrajDh 260 they say ;
It appears possible to meution only two conditions "which have been avoided by
the seals in the choice of their rookery grounds: these are mnd and loose sand. On
muddy ground the fur is doubtless apt to become uncomfortably clotted, and the
sand if driven by the wind or splashed about by rain is probably also irritating to
them. Shifting sandy ground besides renders the always clumsy locomotion of the
seal when upon the land additionally difficult; but it may be noted that sandy
beaches appear to be well liked by the seals when they haul out temporarily, and
are not actually established for breeding purposes. On most of tlie rookery grounds,
away from the actual beach, the character of the soil is such that it becomes beaten
down between the projecting rocks into a hard and nearly smooth lloor, a circum-
stance which depends in part on the incorporation with it from year to year of the
felted hair which is shed by the seals themselves during the stagey season.
Then at Paragraph 256 sub paragraph 4, they say :
Beef Eoolceries. — Occupying both sides of the outer part of the long promontory
known as Reef Point, and facing to the north-west and south-east. The north-
western slope, often called Garbotch, is rather steep, and a part of the rookery
ground occupied on this side consists of a narrow fringe of rocky shore overlooked
by low basaltic cliffs. A narrow ridge, which is worn bare and occupied as a haul-
ing ground by holluschickie in the early part of the season, and is frequented by
all classes of seals at a later period, separates the northwestern Irom the south-
eastern side of Reef Point. On the south-east side there is a wide border of flat land
but little elevated above the tide, upon which the greater part of the seals of the
reef rookeries is found. Almost the whole of the rookery ground of the reef is plen-
tifully strewn with angular masses of rock, though occasional smooth spaces also
occur. The higher parts of the Reef Point consist very largely of a bed of volcanic
scoriae, lying compact and much in its original state, and forming a iine hard surface
considerably diiferent from that found on most of the rookeries.
So there you have the statement, made from independent sources,
that the character of the ground between is either rock, or else it is
beaten down hard ground.
Senator Morgan. — That is in the rookeries proper?
Sir KiCHARD Webster. — That is in the rookeries proper.
Senator Morgan. — How do the holluschickie haul out?
Sir Richard Webster. — They haul out on ground practically speak-
ing beaten down by the lying upon it, and which consists to a large
extent of seal hair and fibre toughened from the pressure of years and
centuries.
Senator Morgan.— The holluschickie do?
Sir Richard Webster. — Yes. It is also hard, although not the
same kind of hardness as would apply to the rocky formation of the
rookery and it is the fact that upon the rookeries with this abundant
opportunity of examination, no trace of anything of the kind has been
found.
Now this is what Mr. Stanley Brown says at page 387 of the United
States Counter Case. There is nothing iu his original affidavits con-
tradicting the universal testimony and no evidence upon this point
from persons of experience contradicting what I have stated.
The presence of excremeutitious matter upon the breeding rookeries is recognized
both by sight and smell. It is of a yellowish color, and though much of it is
excreted it is of such a liquid consistency that it is quickly rubbed into and mingled
with the soil, and thereafter its existence can only be noticed through the discolora-
tion of the soil and the offensive odour. The latter is readily detected at a distance
ORAL ARGUMENT OF SIR RICHARD WEBSTER, Q. C. M. P. 131
of miles when the wiud is in the right direction, for the soil on the breeding rook-
eries is completely impregnated with it. The odour bears no resemblance to that
which arises from the bodies of a large number of assembled animals.
The quantity of excrementitious matter present is influenced by the nature of
their diet, which, being tish, is largely assimilated, while in their coming and going
much of it may be deposited in the water, to say nothing of drenching from rain to
which the rookeries (many of which are solid rock) are subjected.
Upon the face of the affidavit, the statements are a little inconsistent.
You see the character of the rocks from the photograph which speaks
for itself — the rain would not wash it away from the liollows of those
rocks. If the statment be supposed to mean that the excreta of the
seal are not solid, the whole of the evidence in this case is to the con-
trary of that. That the females do void something of that character
just before the birth of their pup is spoken to by Mr. Bryant. I submit
that upon this evidence the testimony is all on one side and in one
direction, namely, that there is no evidence of any excreta being voided
by female seals at any time when they are upon the rookeries and in
attendance upou their young.
l^ow, Mr. President, I come to a part of the case which again I am
happy to say does not require very much argument from me, because
I am able to take the evidence almost entirely, if not entirely, from
the United States, and that is with regard to there being food round
the island.
For a long time it was suggested more than stated — suggested I
think in the United States Commissioners Report — that the reason
why females went far from the islands was because there was no food
near.
Upon the evidence upon both sides it is clear that there is abundance
of food far beyond what the seals require, remembering that it is com-
mon ground that a very large percentage of those upon the islands do
not feed at all. There is evidence on both sides that there is abun-
dance of food suitable for the seals in close proximity to these islands.
I suppose it is scarcely necessary for me at present, Mr. President, to
prove what the seals feed upon, but if I am ehallenged of course I will
do so. I will state they feed upon cod — they feed upon practically all
kinds of tish including herring salmon and halibut. They also feed,
to a certain extent upon Squid, but having regard to the enormous
amount that seals eat in the day, they must have something much
more substantial to live upon than simply the squid which they can
collect. However, the evidence in this case, on both sides, is that when
food has been discovered in the stomachs of seals, it is found to be
largely consisting of cod, and largely consisting of other kinds of lish,
but among their most suitable food is the cod.
Now the evidence with regard to food near the Islands can be put
shortly, but it must not be overlooked. I call attention first to para-
graph 231 of the British Commissioners Eeport in which they say.
That the fur-seal is essentially a pelagic surface feeder, is further shown by the
fact that it is not known to resort habitually to the best fishing banks in Behring
Sea, such for instance, as the Baird bank, and that fish, such as the cod and halibut
inhabiting water of some depth and feeding along the bottom, are often found in
considerable numbers, not only near the breeding islands of the seal, but even in the
immediate vicinity of the breeding rookeries of these islands. Such fish are actually
caught at various seasons by the natives of the Pribilof Islands within 1 or 2 miles
of some of the largest rookeries on the south side of St. Paul Island, and not more
than 2+ or 3 miles oif the rookeries on the north shore of St. George Island. On one
occasion, while at anchor for a short time within less than half-a-mile from the largest
rookery on Behring Island, at Cape Yushin, over twenty cod, with some other fishes,
were caught from our steamer with two or three hand lines, in water not more than
6 or 7 fathoms in depth.
132 ORAL ARGUMENT OF SIR RICHARD WEBSTER, Q. C. M. P.
Then in Vol. 1 of the Appendix to the BritivSh Counter Case, pages
138 and 139, you will find. Sir, very important and very strong evidence
with regard to this presence of food. This is what Mr. Macoun says :
When I landed at the village on St. Paul Island on the 30th June, cod and halibut
were hanging before many of the natives' houses. In answer to my enquiry as to
where they had been caught, I was told that they had been taken less than 3 miles
from St. Paul Island, and between it and Otter Island.
Up to the 12th of Seiitember, the date of my final departure from the Pribilof
Islands, natives went out fishing every fine Sunday, and, in fact, every day they
were not engaged on work for either the Government or the Company, and good
catches of fish were invariably made.
When on St. George Island the 17th July a great many cod were seen hung up to
dry, and at dinner that day I asked the United States Treasury Agents and the
oflieers of the Company why they had not fresh fish on the table. I was told that
they could be had in abundance whenever wanted, but that they were all tired of fish.
"H. M. S. Daphn6", while I was on board of her, was anchored during the fore-
noon of the 2l8t July in 18 fathoms of water, one-third mile off Dalnoi Point, St.
George's Island, and cod, small halibut and sculpin were caught in great numbers
at this time.
A holiday was given the natives on St. Paul Island on Saturday, the 13th August,
and many of them spent the day fishing. Their boats were in sight all day between
2 and 3 miles off Lukannon rookery. They returned late in the afternoon with their
boats half full of fish; there were many more cod than halibut, though the latter
were much the larger fish.
I asked the natives how far they went out for fish later in the season ; they replied
that they never had to go more than 5 miles from land to get all the fish they wanted,
and that it was only in September that they went that far. I was taken to south-
west Bay, St. Paul Island, by a crew of natives, on the 23rd Atigust. During the
brief time I was ashore they fished about half-a-mile off' Zapadnie rookery catching
two halibut and seven cod. These men told me that the fish were always very plen-
tiful near the island, biit that until 1891 they had never had time during the summer
mouths to catch them, when they were not driving or killing seals, there were the
skins to salt and re-salt, the Company's ship to load or unload, and coal and pro-
visions to be brought from the landing-place to the storehouses.
The next day salmon were seen in tlie lagoon near the village.
Then the next paragraph relates to Behring Island. I need not read
that. Then it goes on :
Mr. Baldwin, who has been on St. Paul Island several years, told me that small
squid are very numerous close to the islands, and Mr. Townsend. —
that is the United States gentleman —
Who has for several years been employed as a naturalist on the "Albatross" in
Behring Sea, said more than once in my hearing that there was no part of Behring
Sea that did not abound with them.
It is thus evident that should seals, whether males or females, require food during
the time they resort to the islands, (which has not been proved) it is to be had in
abundance close to the rookeries, while it is further apparent that the natives with
the exercise of but ordinary diligence on their own part are in no way dependent on
the slaughter of seals for food.
Now, Mr. President, it must not be forgotten in this connection that
ex concessis, as I have said more than once to-day, the large proportion
of the animals during a considerable portion of their stay on laud do
not require to catch lish — that is to say the bulls, the holuschikie and
the females, — until such time as they are minded to go out again to sea.
Now let us look at the United States evidence upon this point. I
refer to the evidence of Captain Tanner and I will ask the Tribunal
kindly to turn to it. It will be found at page 374 of volume 2 of the
Appendix to the case of the United States.
He says:
Seals killed in Behring Sea after the birth of the pups are largely mother seals
and the farther they are found from the islands the greater the percentage will be.
The reason for this seeming paradox is very simple. The young males, having no
family responsibilities can afford to hunt nearer home where food can be found if
sufficient time is devoted to the search. The mother does not leave her young except
ORAL ARGUMENT OF SIR RICHARD WEBSTER, Q. C. M. P. 133
when necessity compels her to seek food for its sustenance. She cannot afford to
waste time on feeding grounds already occupied by younger and more active feeders;
hence she makes the best of her way to richer iields farther away, gorges herself
with food, then seeks rest and a quiet uap on the surface.
Well iSir, there is a very great deal of romance in that affidavit, I
cannot help thinking that it would not have been undesirable to have
had an opportunity, if the Treaty had permitted it, of testing such a
statement by cross-examination — that the mother seal knows that there
are fish in the neighborhood of the island, but knows that the young
males, who have not got family responsibilities, are hunting themselves,
therefore passes those fish by on the chance of catching others by and
by, and goes out a greater distance to seek food. Not having time to
take fish near at liand, she has time to travel great distances on the
chance of other fish. There were other reasons given, for instance,
which I will not fail to deal with, but to get, over that which the gentle-
man is by implication obliged to admit, namely the existence of a very
large quantity of food in the immediate proximity to the islands, know-
ing that a very large proportion of the seals on the island do not require
food — he has to write a little romance of the female seal who knows
that the male seal has got no family responsibilities, therefore goes
straight through, past the fish, in order to get to a richer feeding
ground.
At pjige 504 of the first volume of the Appendix, is a statement by
Captain Hooper, made quite indirectly, without reference to this point,
which will be found very strongly corroborative:
Male seals remain upon and around the islands until the ice appears. The natives
say the codfish also disappears with the first appearance of the ice.
The natives, of course, can only be those who live upon the islands.
They can only speak from what they know, from their no longer being
able to catch the codfish, which would have to be in the neighborhood
of the islands during the time they would be able to catch them.
The statement made — no doubt correctly made — by Captain Hooper
in regard to that matter is that the fish disappears with the appearance
of the ice, in other words, the codfish remain there in the neighborhood
until the ice comes. I therefore ask the Tribunal to allow me to assume,
only for the purpose of my argument at present, not to repeat myself,
that I have established the fact that there is an abundance of food
around the islands, which, if it were the question of the immediate
necessity of getting food and going back to its young, would be preyed
upon by the female seal.
The President. — There is no information about the migration routes
of the cod and halibut and those other fish?
Sir EiCHARD Webster. — None whatever; but we know Mr. Presi-
dent, that cod largely frequent the same waters constantly. I do not
know that you remember, Sir; but I called attention to that in connec-
tion with the argument upon property, referring to the report of the
United States Fishery Inspectors in regard to this matter. We know
that cod come back to the same place continually. They are found
upon some banks and in other places, and it is known that they return
there continually.
Lord Hannen. — Do they not depend on other fish, herrings for
instance?
Sir Richard Webster. — I do not know whether cod feed on herring,
except this — that the herring is said to be fed upon by every fish from
the sillock to the whale. The sillock is a little tiny fish, Mr. President,
that is caught in Scotland, and which feeds upon the herring.
134 ORAL ARGUMENT OF SIR RICHARD WEBSTER, Q. C. M. P.
Mr. GkAjVI. — In my country we liave the experience that cod come
every year to tlie .same places for breeding.
Sir Richard Webster. — Yes. I believe the experience upon both
coasts of America, where the cod fishing is very great; I bdieve the
experience on the east coast of England and on the coast of Europe, is
that codfish do come back to the same place year after year; but for
my point, Mr. President, it is not very important, because there is abun-
dant evidence that the cod are found, practically speaking, in all parts
of Bell ring Sea.
The President. — And during the season when the seal is on the
islands?
Sir EiCHARD Webster. — During the season when the seal is on the
islands. I would call attention, Mr. President, as you have been good
enough to put that question to me, to Captain Coulson's report, at page
235 of the Counter Case:
At every station where the vessel was stopped, codfish were taken. In some locali-
ties they were abundant; at others only a few were caught.
I merely mention that for the purpose of showing that it is not, as
far as we can gather from the evidence, a case of there being quantities
of codfish distances away from the island, but as far as I can judge
from the evidence and the evidence only, these cod appear in very
considerable numbers, practically speaking, all around the islands.
But it may be said, "That is perfectly true; but you cannot deny
that female seals, which we call nursing females, are found and killed
at great distances from the island." Mr. President, it is no part of my
case to deny it, and I never have, in any observation that I have made,
intentionally denied that at times, at distances from the islands greater
than the distance I have mentioned of twenty or thirty miles, seals with
milk in their breasts have been killed. But I ask the Tribunal in con-
sidering this matter to be good enough to look at the whole question
and not to look at the question from the narrow point of view, closing
their eyes to all we know about natural history, which is the attitude
that has been assumed by my friends upon the other side. I do not in
any way want to exaggerate or put their case unfairly against them.
But I must remind you that Mr. Coudert actually argued in this court,
solemnly, before you, that inasmuch as the pups were found with milk
in them in the month of November, that therefore it must be assumed
that the pups were dependent upon their mother right up to the month
of November. Well, of course it is an absurdity Mr. President.
That pups may occasionally suck as late as this, is extremely proba-
ble; but we have got to consider Avhat is going to happen. These
animals are going in the next day or so right across the sea, hundreds
and thousands of miles, to find their own living; and nobody suggests
that they go on sucking, the mother then. It would be contrary to
all the experience of every other animal known, to imagine that it is
dependent upon its mother up to within four or five days of the month
of November and then suddenly becomes independent. What is the
ordinary rule you expect to apply? Be it long or be it short, weaning
takes place gradually, either at a longer or a shorter period; and wean-
ing takes place, at times, by the pup poddiug and wandering away from
the rookery, being able to support itself, not being dependent upon the
mother, so that the mother does not have to find it out and feed it. But
there is another most important incident in connection with this matter
which the United States advocates are obliged wholly to overlook. They
entirely forget that it is common knowledge now ever since we have
ORAL ARGUMENT OF SIR RICHARD WEBSTER, Q. C. M. P. 135
known anything about the fur seal that a very considerable — when I
say considerable I mean a large number — of these pups are actually
killed by killer wliales in the months of August and September on the
very shores, when they begin to swim, and that a certain other number
of these pups are killed by ordinary accidents of life, due to the stam-
pedes upon the rookeries, the conduct of the bulls themselves, and other
natural causes. We also have a substantial body of evidence of ])ups
not infrequently dying from sun -stroke and from other causes of this
kind; and that therefore there must every year be present in the waters
of Behring Sea a large number of seals which have got milk in their
breasts, milk which is drying off, showing seals that have given up
suckling, seals whose pups are weaned or have died, this is certain,
without any argument; and I challenge contradiction upon it.
What does it mean? We have at present no direct evidence of the
time it takes for the milk to disappear entirely from the glands. We
know they are very large glands.' We know that a very large portion
of the body of the seal is covered by the milk producing glands. You
will remember, Sir, there is a phofcograijh in one of the books of a seal
that was cut open by the United States for the purpose of examination,
and we further know that there are four of the mammae or teats, to
each of which the milk goes. Some of us have some experience from
other animals; but I admit that kind of experience is of no real value
for the purpose of what I may call a quatititive estimate. But I do say
this: it would be no exaggeration to suggest that milk would be pres-
ent, must be secreted, got rid of and ultimately dried up for a period
of two or three weeks in the bodies of these animals; and therefore my
learned friends are obliged to assume this position, in order partly to
introduce what I cannot help thinking is to a certain extent prejudice,
and in order to indicate that injury is done to the seals upon the islands
that the evidence does not warrant. Every seal that is taken, every
female seal that is killed, is a crime. Every female seal that is killed,
either she herself and the unborn pup in her — 1 am dealing now with
seals that have delivered their young on the Pribilof Islands — is to be
regarded as being lost, and therefore that two seals are lost, and if
there is a pup upon the island, three.
Does the evidence warrant it"? With very great deference, Mr. Presi-
dent, and only inviting the candid and severe criticism of this Tribunal
upon my arguments, I submit the evidence does not warrant it at all;
and I submit that when the evidence is examined there is nothing to
show that any substantial number of females would be killed in Beh-
ring Sea by vessels that are j)elagically sealing at distances outside
thirty miles from the islands. Of course, Mr. President, it must not
be put upon me that I am advocating pelagic sealing within ten or fif-
teen miles of the shore. I have said distinctly tliat I do not advocate
it. It must not be put upon me that I am justifying pelagic sealing in
Behring Sea during the months of May and June, when the females are
gravid. That is another matter which I have disclaimed, and which I
am going, of course, to come to later on when I deal with the supposed
injury to gravid females. I am dealing now entirely with the injury to
nursing females.
As I have said before, to make, my note complete, I will merely men-
tion in connection with this subject to form a starting point, sections
303 to 308 of the British Commissioners' Eeport. 1 do not wish to read
them now, because I read them yesterday; but I want my argument to
be self-contained, and therefore I call attention to them, that the Tri-
bunal may have in one passage, so to sj)eak, of my argument, all the
references that bear upon this.
136 ORAL ARGUMENT OF SIR RICHARD WEBSTER, Q. C. M. P.
But now occurs some very important evidence on page 55, section 310
of tlie British Commissioners llepoit, whicli I read witliout comment
except to say by anticipation again tbat you will see whether the Com!
missioners have excluded any evidence that might tell against theni;
310. In the Report on the fur-seal fisheries of Alaska (1889), Mr. W. B. Taylor states
that the cows go out every day for food to a distance of 10 or 15 miles, or even
further.
Of course if that means every day after they go on shore, that is
obviously wrong. If it means every day u.ler they have begun to feed,
it may be true or it may not. I do not wish to tie anybody to the dis-
tance of " 10 or 15 miles, or even farther". I do not of course wish to
dispute that if it be a matter of calculation.
Mr. p. F. Ryan states that the main feeding gronnds of the seal during the sum-
mer stay upon the islands, and to whicli the cows are coutinually going and coming,
are to be found, 40 to 70 miles south of St. George Island.
That, at any rate, does not look like suppressing anything which was
against them; but I mention that for the purpose of pointing out that*
we have no means of judging on what information Mr. Ryan made that
statement, or where that particular place is.
Mr. G. R. Tingle, in the same Report, says that the seals probably go twenty miles
ont in some cases in search of food
Mr. Tingle had been of the United States Agents or Treasury Agents.
All these men that I am quoting from are Treasury Agents of the
United States:
312. The following is a summary of the evidence personally obtained in 1891 from
those sn])posed to be most capable of giving an opinion on the subject:
Mr. G. R. Tiugle stated that he believed seals from St. George went to feed, for the
most part, about 30 to 40 miles to the southward or south-eastward of that island.
From St. Paul he was not aware that they went in any particular direction.
Mr. J. C. Redpath did not know of any special place or places to which the seals go
to feed, but believed that the females go from 10 to 15 miles from the islands for that
purpose.
Mr. D. Webster thinks that seals go from St. George Island, when feeding in the
autumn, about 60 miles southward; he believes that there is a favourite feeding
ground in this vicinity, because he has seen numerous seals there when on his way
from the islands to Ounalaska.
Mr. Fowler stated that he believed there was a favourite feeding ground of the
seals about 30 miles oft' north-east point of St. Paul Island. This was not from per-
sonal knowledge, but depended on statements that seals had been seen in abun-
dance there.
Natives of St. Paul informed us that the females from the rookeries went only 3 or
4 miles to sea to feed, always returning to their young on shore the same day. When
questioned as to the classes of seals seen further out, as for instance, midway
between St. Paul and St. George Islands, they stated that all kinds of seals might be
found there, but added again that the females usually do not go far from the
rookeries.
I will leave Mr. Grebnitzky for a moment, and will come back to him.
Mr. Tillman, the Agent of the Russian Government, in charge of Copper Island,
where he has been for two years, thinks that the females go as much as 2 to 4 miles
oft" shore to feed, but return to the rookeries every night.
Mr. Kluge, who has been for twenty-one years in the service of the Alaska Com-
mercial Company on several different islands, agreed in this point with Mr. Tillman,
and added that he knows from close personal observation, which he was able to make
on Robben Island, that the females return every night, as stated.
Snegiloft", the native foreman on Bchriug Islands, thinks, on the contrary, that the
females may leave their young for several days, and may go as far as 10 miles from
land to feed.
Now Grebnitzky, whom I passed for a moment:
Mr. N. Grebnitsky, Superintendent of the Commander Islands, stated, as the result
of his own personal observation and long experience, that the females went out to
OKAL ARGUMENT OF SIR RICHARD WEBSTER, Q, C. M. P. 137
sea while suckling the young, but not further than half-a-mile or a mile from tlie
shore. Most of the natives, he added, thouglit that tlie females did not feed during
this period, but in this he believed them to be mistaken.
It is not an unfair comment to say that this is a striking instance of
liow little we really know accurately. I call attention to it in order
that the Tribniial may see tliat upon the evidence wliicli was there (col-
lected, of a number of witnesses of equal credit, a number of wit-
nesses of equal experience, all Treasury Agents, and therefore whose
interest it would be to tell the truth and not to suppress the matter,
some of them say they do not go more than 10 or 15 miles, others think
they go farther. But it is extremely important to notice we are dealing
for this purpose only with the period when from the wasteful i)oint
of view it may be suggested that you ought not to kill the female
because the life of her i)up depends upon it; for in so far as it referred
to the killing of females on whose life a pup's life did not at the moment
depend, I protest tliat there is not only no reason for interfering with
it, but it would be contrary to all the rules which have governed similar
matters to interfere with the killing of a female simply because it is a
female.
It is not unimportant, and that is why, Mr. President, I postponed
the reference to Mr. Grebnitzky, to remember tbat Mr. Grebnitzky
made a further allidavit for the United States on the 26th of Novem-
ber— 8th December, 1S92, and that they sent that to St. Petersburg]!
from Washington in order to have certain corrections made in the affi-
davit that it might be an affidavit which would go as far as JMr. Greb-
nitzky could go in support of the United States Case; and I ask you
just to let me read what he says upon this at page 3G6 of the Counter
Case of the United States:
Consequently when the mothers, who after the birth of their pups leave the rook-
eries in search of food (travelling sometimes considerable distances, I do not Icnow
exactly how far), and fail to return their pups must necessarily die.
Those words "considerable distances" were inserted in the affidavit
after the affidavit had been sent to him, no doubt properly sent to him,
from Washington, that the further correction might be inserted.
Mr. Foster, — It does not so appear.
Sir KiCHARD Websteu. — Well, I think it does so appear. If it is
not the fact, by all means, if you say it is not the fact I Will accept that.
I think it does a])pear in the papers that it is so.
Mr. Foster. — I -will state what I understand the fact to be, if you
desire it.
Sir Richard W^EBSTER, — I was merely dealing with what appears
upon the face of the affidavit; but my point is that Mr. Grebnitzky, who
was previously stating that he did not think they w^ent larther than
half a mile or a mile says in the revised affidavit, "considerable dis-
tances" but he does not know how far.
We know, Mr. President, that the result of the combined knowledge
on the Russian islands — and Mr. Grebnitzky comes from the Russian
Islands, — demonstrates that they are rarely to be found outside 10 miles
except in the particular case of a particular place which it is considered
some seals go to in connection with some island.
Mr. Foster. — I have no idea that you wish to make any statement
that is not consistent with the facts. If you will observe the date of
the corrections, you will see they are of the same date as the original
affidavit, December 8th. The fact is that the errors in copying were
corrected by the Consul-Geueral at St. Petersburgh.
138 ORAL ARGUMENT OF SIR RICHARD WEBSTER, Q. C. M. P.
Sir Richard Webster. — If you, Mr. Foster, say they are errors in
copying that removes, of course my observation.
Mr. Foster. — The date shows it.
Sir Richard Webster. — It may not; but I have the information
somewhere. However, I will not rely any further upon the statement
after what you have stated. It is not a matter of any great importance.
But now, Mr. President, I cometo theevidence of si>e(*ific experiments
or examinations made by the United States in order to support this
matter: and I want to call particular attention, and I ask for the atten-
tion of the Tribunal, to two affidavits, or two tables, one of Mr. Alex-
ander and the other of Capt. Hooper. Mr. Alexander's table will be
found at page 242 of the United States Counter Case. It is the United
States evidence in the year 1892. Now, let us just see, Mr. President,
whether or not this supports the theory that the seals go out for the pur-
poses of food. You will notice, sir, that there were killed between the
6th and 26th of August seven seals. I am very sorry, Mr. President;
I ought to have remembered what the actual distances from the islands
are.
I will supply them to-morrow morning and have them written on the
table for you. I have got them somewhere upon my note, and I thought
I had them in my head, but unfortunately I have not remembered
them. Of course I could give the latitude and longitude, but I would
rather give the actual distance. One distance is stated as 110 miles,
but I will give you the others to-morrow morning. Of those seals six
were females and one was a male. What was the condition of their
stomachs'? "empty", "empty", "fishbones", "empty", "empty",
"fish-bones", "fish bones and a small cod". Now I ask whether that
is the slightest corroboration upon which any Tribunal would come to
the conclusion that these seals were to be regarded as going out for
food. It is extremely probable at those later dates, certainly on the
23rd of August, when " fish-bones and a small cod" were found in the
stomach of the female, at 110 miles that there was nothing to show or
even to suggest that they were in search of food. If you will kindly
look at the fourth column from the end, the only nursing females are
those of the 6th of August, the 21st of August and the 23rd of August.
Now what possible reason is there for connug to the conclusion that a
seal found with milk in its breast on the 23rd of August, 110 miles
from St. Paul's Island, has got a pup dependent upon her upon the
island and that therefore the killing of that seal is to be considered as
something which ought to be restrained by law. I ask the opinion of
every member of this Tribunal who has ever had to deal with this
question from a practical point of view. Of the two so called nursing
females on the 6th of August and on the 21st of August, their stom-
achs were empty. But of the three nursing females the position is
that two have nothing in them, the third has fish bones and a small
cod, on the 23rd of August, 110 miles away. And what is meant by
nursing females for this i^urpose? The only way they can judge is
that the milk is not dried up. There was no observation as to whether
that milk was in the course of drying up or was not.
Now I call attention to Captain Hooper's table at page 217, and I
want first to call attention, with all respect, to the absurdity of the
argument that is based upon this table of Captain Hooper. I say
"absurdity" with all respect, because one is accustomed to taking out
averages and knows how averages should be taken. It is not a case
of a man sealing and killing as many as he could, but it is the case of
a man who killed a certain number of seals to get certain information.
ORAL ARGUMENT OF SIR RICHARD WEBSTER, Q. C. M. P. 139
Now wliat do they suggest within the 10 mile zone? You will notice
they killed One old male, two young males, three nursing cows and
three virgin cows and they calculate the percentage from that. Then
take the 1:0 mile zone, one young male eight nursing cows and one vir-
gin cow. That again might be a suiHciently large number, but still it
is a very untrustworthy guide for the purpose, of percentage. It is
remarkable, at any rate that a very large i)ercentage, if you are to rely
upon the table at all, of nursing cows are found within the twenty
mile zone.
Now we come to the 30 mile zone. What they find is one young
male, and they put down 100 per cent for that. It is ridiculous to cal-
culate it from that. Then the 50 mile zone was 1 young male, 1 nurs-
ing cow; and they put down the percentage of nursing cows at 50 per
cent, because they happened to have shot not as many as they could
shoot, but two only. Then the 100 mile zone, 1 young male and 1 nurs-
ing cow, and again they put down 50 per cent.
Then the 150 mile zone, 2 young males, one nursing cow; and the
200 mile zone 3 young males, 8 nursing cows, and 3 virgin cows; and
from that table you are supposed to be able to form some sort of
idea or estimate as to what is the percentage of these animals that are
shot. Well, Mr. President, I speak with great deference to the mathe-
matical ability and ingenuity of my learned friends. All I can say is
that if they can deduce a reliable percentage from such a table as that,
the United States has gone very, very far ahead of the Old Country in
the matters of mathematics liecause nobody who has had anything to
do with statistics in connection with animal life, or anything eise,
would think of calculating the percentage from such a number of kill-
ings or examination of the animals that were found.
Now let us come to the table as regards the food. That is at ])age
219, within 10 miles from the Islands all three are found without food.
These are the nursing females only.
Lord Hannen. — What are you referring to here?
Sir Richard Webster. — The table opposite page 219, my Lord. Of
course, I shall have to pick out each one for you if I have actually to
find them; but perhaps I can give you the substance of the table and
then I can test any one that is necessary. Within 10 miles from the
Islands they found three nursing females. That you will find, my
Lord, by turning back for a moment to page 217. Within 10 miles
from the Islands they found three nursing females, all of them without
food. Within 20 miles they found eight nursing females, all of them with-
out food. If that ijroves anything at all — I do not think it does prove
anything at all to be fair, it would prove the eight nursing females could
get the food within 20 miles, but there is nothing to show if it was
going or coming, and from the point of view of this grand statistical
operation, it affords no guide. Between 20 and 30 miles they found no
nursing females. At 50 miles they found one nursing female without
any food, and if that is any proof at all, it is all the nursing females in
that area did not require food, which would be absurd. Then 100 miles
off they found one nursing cow without food; 150 miles they found one
nursing cow with food, and within 200 miles they found eight nursing
cows five with food and three without.
In all seriousness I ask the Tribunal if they had to draw any conclu-
sion from such figures as those would anybody risk the life of a rat from
any conclusion that could be drawn from them. Perhaps a rafs life is
worth nothing, but take the life of a dog would anybody risk the life
140 ORAL ARGUMENT OF SIR RICHARD WEBSTER, Q. C. M. P.
of a dog upon the conclusions that could be drawn from sucb percent-
ages as these. It is obvious unless you have information with regard
to the actual condition of the seal itself and knew where it came from,
and if it had a i)up, or not or if the milk was drying np, you cannot.
If I were to argue upon certain isolated cases I could prove to dem-
onstration they could within 20 miles get the food without going out,
and further that only a certain proi)ortion outside succeeded in obtain-
ing food.
The whole argument is I submit untrustworthy, because you have not
and nobody can get from the fact of shooting a seal here and there what
1 may call quantitative or qualitative information upon the points
which the percentage are supposed to prove.
Now I ask to go to the body of the testimony, and I will take it from
the United States abstract of evidence — the bodj^ of testimony sup-
posed to prove this killing of nursing cows; and 1 desire to rejieat and
substantiate to the best of my ability the statements by the Attorney
General which I believe are strictly true without exception, that there
is no single witness who proves time, i)lace or number of nursing
females killed in Behring Sea, so as to enable you to form a quantita-
tive estimate of what the amount of so-called destruction by that
operation is. Would the Tribunal kindly turn to page 45 of the
abstract of testimony. Of course I am not going to read the wliole,
though I am prepared to. I will read as many as are necessary, and I
will begin, if you please, at the top of page 453 where it is taken more
shortly.
We entered the Behring Sea through the Mnckawa Pass about the 1st of July,
and commenced hunting seals wherever we could find them, among which were a
great many cows giving milk, which we killed from 30 to 150 miles from the Islands.
I need not point out there again you do not have numbers given at
all, and the sole statement is, "Cows giving milk." You do not know
if it is drying up or not. I hear, General Foster laugh. All 1 can say
is that anybody who has any knowledge of this matter must know
that the milk takes some weeks to dry uj) iu these animals, and, there-
fore, there was no reason why the observation should be for the moment
treated with derision.
A great many cows giving milk which we killed from 30 to 150 miles from the
Islands.
Then the next is.
I have no exact information as to the proportion of male and female seals killed
by pelagic hunters.
That does not carry it a bit further. Now. —
And when in the Behring Sea, we take seals from 10 to 120 miles from the Seal
Islands.
Then the the next man. —
And the large proportion of the seals killed in Behring Sea are also cows. Have
killed cowseal with milk in tliem 65 miles from the Pribilof Islands.
No statement when it was, or what number. If one were to judge
fairly, one would think that was an excei)tional case.
We came out of the Behring Sea in the latter part of August, and had caught
about 1,700 seals between the Pribilof Islands and Uualaska. We caught them from
10 to 100 miles or more oli' St. (Jcorge Islands.
ORAL AKGUJIENT OF SIR RICHARD WEBSTER, Q. C. M. P. 141
How that bears on mirsiug-females, it is difficult to say. Then the
next is. —
The seals canoht along the coast after 1st of April are mostly pregnant females,
and those caught in Beliring Sea were females that had given birth to their young.
I often noticed the milk flowing ont of their breasts when being skinned, and have
seen them killed more than 100 miles from the Seal Islands. I have seen live pups
cut out of their mothers and live around on the decks for a week.
For all we know, and for all the affidavit tells us, that may apply to
Belli iiig Sea in the month of May; that may apply to Behriiig Sea in
the month of June, that may ajiply to the catching of females in
Behring Sea within a few miles of these Islands; neither date nor
distance is given.
I was in the Behring Sea in 1889 on the schooner ".Tames G. Swan", but did not
use shot-guns. Most all the seals we caught were cows giving milk.
Again, no statement of place, and no statement of number.
We entered Behring Sea in the middle of May, and captured 300 while in there.
Most of those were mother seals with their breasts full of milk.
Why, Mr. President, if this had been something done close to the
islands, within 5 or 10 miles off', and they were the seals that had gone
out, as the evidence shows clearly they do go out from time to time, to
play in the water near the islands, it would be nothing remarkable, and
would prove nothing.
We did not capture any gravid seals in the Behring Sea. Nearly all the seals
taken in Behring Sea were cows in milk. We captured a few young seals, in the
sea, of both sexes.
Then
I hunted in Behring Sea in 1889, that being the only year I ever went to that sea
and hunted seals with spears, about 70 miles south-west off the islands, and onr
cat h was nearly all cows that had given birth to their young and had milk in their
teats.
iNo statement of how many they caught, and no statement of when it
was. I would read every one of these extracts if necessary.
The President. — Some of them have a statement as to dates.
Sir EiCHARD Webster. — There is none that I have passed. I have
read consecutively, and none combine all three elements of date, num-
ber and place.
The President. — There is Niels Bonde.
Sir EiCHARD Webster. — I read that I think.
The seals caught along the coast after the 1st of April are mostly pregnant females,
and those caught in Behring Sea were females that have given birth to their young.
1 often noticed the milk flowing out of their breasts when being skinned, and have
seen them killed more than 100 miles from the seal islands. I have seen live pups cut
out of mothers, and live around on the decks for a week.
l^either date nor number given I have not intentionally passed any
one; I thought I read the whole of that page. I have only one or two
more observations to make upon this head, and, as I do not want to
trespass unduly upon tlie Tribunal, perhaps they will keej) till
to-morrow.
Lord Hannen. — I understood you to say that you passed Niels
Bonde, and said it had nothing to do with it?
Sir Richard Webster.— Well, if I did, my Lord, I did it uninten-
tionally. What I did mean to say was, that Niels Bonde had nothing
to do with it so far as pregnant females were concerned. Perhaps I
read it too fast; I did not know that I had i)assed it — I had no inteu-
142 ORAL ARGUMENT OF SIR RICHARD WEBSTER, Q. C. M. P.
tion of passing- it; I meant to read everyone. What I meant was,
those caught in Behring Sea have no date given, no distance given, and
no number given.
As I have some more observations to make on this particular Table
and it is an important summary of the evidence and tells very strongly
in support of the view presented by my learned friend, Sir Charles
Kussell, and myself perhaps you would allow me to continue this
to-morrow morning.
The President. — Certainly.
[The Tribunal then adjourned till Thursday, the 15th of June, at 11.30
o'clock.]
THIRTY-NINTH DAY, JUNE 15™, 1893.
Sir EiCHARD Webster. — I promised, Mr. President, to give yon
tliose distances the first tbing this morniug. On page 242 of the United
States Counter Case, the distances from the Islands to those seals
referred to in Mr. Alexander's tables were taken; the first two on the
6th of August which are female seals, one nursing and one virgin, which
were taken empty, were within the 20 mile radius; the next one on the
12th of August was distant about 40 miles from the Island, that was a
virgin female with fish bones in it; the next one on the 13th of August,
also a virgin female, empty, 180 miles from the Island; the next two,
which are on the 21st of August, empty and fish bones, 90 miles from
the Island; and the last one is stated in their own statement to be
110 miles.
Mr. President, I was referring last night to the collated testimony
which is put forward for the purpose of showing the amount of females
in milk killed in Behrin.g Sea. I had finished page 453, and I am not
going to read every extract; I will simi)ly remind the Tribunal again
of my point and will read any extracts that seem to bear on that or
will, of course, deal with any if any are called to my particular attention.
Our point is, it is impossible from this table or from the affidavits them-
selves to gather how many seals were killed in milk, the place they were
killed, or the times when. Many of the afiidavits are defective in two
out of three particulars, and, so far as we have examined them, no one
contains them all.
I will read a few specimens and then I will pass to one or two that
are more important in our submission. Take page 454 of the collated
testimony Thomas Brown :
We entered the sea along about the first May and caught between 600 and 700 seals
from 30 to 50 miles off the seal Islands and 4 out of 5 were females in milk. I saw
the milk running on the deck when we skinned them.
I call attention to the date which so far as it is of any importance
will support an argument which I have ah"eady addressed ; that is some-
where "about the first of May." Then Charles Campbell:
Have killed cows with milk about 60 miles off the Pribilof Islands.
Then John Cantwell :
80 per cent of the seals shod in Behring Sea from July first to September 15 are
females most of which have given birth to their young and are mostly caught while
feeding at various distances from land.
Charles Challall:
At least 7 out of 8 seals caught in Behring Sea were mothers in milk.
Then Circus Jim, I sui>pose he is an Indian:
While in the sea I caught a great many cow seals that were giving milk. Most
all seals we caught in the sea were giving milk.
You will notice neither date nor place nor number given.
Now I want to call attention to Claplanhoo because I have to make
an observation about him, and I desire to read Claplanhoo's evidence,
143
144 ORAL ARGUMENT OP SIR RICHARD WEBSTER, Q. C. M. P,
and make an observation wliicli applies to a good many witnesses in
this case, that is with reference to the absence of cross examination.
This is tlie first Indian I have read I believe, I mean at any rate the
iirst that 1 have noted, and he says.
In 1887, about the Ist of June, I went into the Behring sea in my own schooner, the
Lottie, and hunted about 60 miles olf the islands, and secured about 700 seals, nujst
of which were cows in milk. These cows liad milk in tlieir breasts, but had no
pups in them. I returned to the Beliring Sea in my own boat, the Lottie, in 1889,
and also in 1891, and sealed all the way from 100 to 180 miles from the St. George and
St. Paul Islands the catch of these two years were of about the same character as
those caught in 1887, and were mostly females that had given birth to their young,
and were in mill?:.
I again note, in no one of these questions does attention seem to have
been drawn to the question whether the milli was drying up or not.
Tliese are Makah Indians, and I need not. remind the Tribunal that a
great deal depends on the intelligence of these men and the way the
questions are jjut, and what is now written down in a consecutive affi-
davit may not really represent the actual meaning he intended to con-
vey, but requires to be tested. That being known I will ask the
Tribunal to turn to page 176 of the second volume of the Appendix to
the Counter Case.
The President. — It appears that this Indian was the owner of a
schooner.
Hir Richard Webster. — He was the owner of a schooner. I did
not mean to note that in i)assing, but it has an important bearing on a
matter which has been referred to.
The President. — You mean on the Indian sealing.
Sir EiCHAED Webster. — Yes, on the Indian sealing. There are
many instances of Indians owning the schooners and going out in
them. Therefore, it is quite a mistake to suppose that they are persons
who only hunt in canoes. 1 merely refer to this iu order that I may at
once tell you what passed in reference to the cross-examination of wit-
nesses like this, and I therefore call your attention to page 17(3 of the
second volume of the appendix to the British Counter Case.
That is the evidence of Mr. Belyea, and he says:
That on the 29th day of November last I went to the Indian village of Neah Bay,
in the State of Washington, United States of America, on the Dominion of Canada
steamer "Quadra", for the purpose of securing the evidence of the Indians there for
use before the Arl)itration on the Behring Sea Fur-seal question.
That I took with me as an interpreter one Andrew Laiug, and immediately n])on
arrival at Neab Bay I sent Laing on shore to enquire of the Indians whether they
were willing to give the evidence. On his return to the "Quadra", he iutormed me
that the Indian Agent there had forbidden the Indians to give any evidence to the
British side without his permission, and that the Indians were willing to give evi-
dence if the agent would permit them.
That I inuuediately went on shore and called upon the Indian Agent, one John
P. M. Glynn.
Mr. John P. M. Glynn was the gentleman who witnessed the greater
proportion of the aftidavits that had been sworn by the Indians on
beiialf of the United States.
I told him what I wanted. His reply in effect was that the Indians had an idea
that the sealing on the coast would be stop]ied and would not say anything to me
as it might injure them. I told him I understood that to be one of the objects of the
American Government, and if the Indians wished to prevent it tliey would be acting
in their own interest to give me their views. He then said the Indians liad already
given evidence to the officers of the United States Government for use on the Arbi-
tration, and he did not consider it fair to either the Indinns or the United States
Government to have them examined by the British. I told him I was willing to take
the statements of the Indiiins in his presence, and he then said he refused under
any circumstances to allow the Indians of his Agency to give me any evidence about
ORAL ARGUMENT OF SIR RICHARD WEBSTER, Q. C. M. P. 145
seals or seal-hunting. He further said that he did not intend to subjef^t the Indians
to an Exiiiuination by the British side as they might stultify thcniHelves. He said
the Indians were easily niisuiulerstood, and quite as easily induced to say things
that were not true. Finding it useless to prolong the interview, I left him, and
went up to the Indian village.
And then he refers to a conversation which is not important with the
Indian who indorsed that which has been stated, that he could not give
evidence or answer any questions without the permission of the Agent.
That is confirmed by Andrew Laing, the interpreter iu paragrai^hs 3
and 4 of his affidavit.
That I went back to the "Quadra" and told Mr. Belyea what Peterson said.
Peterson was one of the Indians.
Mr. Belyea at once went on shore and saw tbe Indian Agent, one John P. M. Glynn.
I went with him and was ]iresent and heard all that passed between him and the
Agent, except for a few minutes at the close of their conversation. I have read
wljat Mr. Belyea says took })lace then, and it is true. I remember the Agent telling
Mr. Belyea tliat he would not allow the Indians under any circumstances to give
evidence to the English. This was in reply to an otter of Mr. Belyea to take the
evidence in Agent's presence.
That and the declaration of General Jackson on the next page bears
upon the same matter, but I only mention it in order to respectfully
caution the Tribunal, though I do not supjiose any caution is necessary,
against accepting on any questions of i^er centage or statements of
this kind, affidavits taken not only with no opportunity of cross-exam-
ination, but when cross examination by a respectable gentleman, a
member of the Bar sent out for the purpose has been refused. I am
only suggesting the Tribunal will do that which every Court would do
for itself, having the matter brought to its notice — accept any such tes-
timony with extreme caution and except iu so far as it was obviously
corroborated, would not consider it entitled to special weight.
The President. — Do you lay any responsibility on the United States
for the behaviour of these Agents.
Sir EiCHARD Webster. — Well, I do not suppose that the United
States representatives would wish that a thing of that sort should for
a moment take place. I was only referring to the evidence, and I hope
you will understand that I make no charge of any sort or kind against
the United States. I do not suppose for a moment they knew anything
about it, but what I do say, is, and what I think I am justified in say-
ing, is, that evidence taken under such circumstances is or should be
of very slight weight before any Tribunal.
We are dealing, you must remember, with very uneducated men.
They are speaking in a language not their own, which must have been
interpreted in a great number of cases. They are not able to read or
write; a large number make their mark, and it is taken in the presence
of Mr. McGlyun, who objects to them being questioned. I say no more
than that.
The President. — Would it not have been wise of the English Gov-
ernment to apprise the American Government that they were sending
a man out for the purpose of cross-examination"?
Sir Eichard Webster.— Well, Sir, that was not our contention; I
am obliged to you for that suggestion. We had not seen these affi-
davits. They were only disclosed to us in September, 1892. .
■ The President. — And this is in December, 1892.
Sir Richard Webster. — Well, this gentleman, not knowing about
the particular people, simjdy goes there for the purpose of getting evi-
dence, that is to say of seeing Indians. He does not know the partic-
B S, PT XIV 10
146 ORAL ARGUMENT OF SIR RICHARD WEBSTER, Q. C. M. P.
iilar individuals, but all tlie Indians who are there have been examined
by Mr. McGlynn, or in his presence, and this objection is talien. Of
course, it is entirely for the Tribunal, but I do not think this ought to
be made in any slnvpe or form a charge against the United States
Government, and I hope you will understand that I make no such
charge; but I do say that, when we have to weigh the value of the
testimony, it is a circumstance that the Tribunal will take into consid-
eration, and I press it no further than that. Mr, Tnpper reminds me
that we had not the slightest reason, till Mr. Belyea got there, to
anticipate that there would be any difficulty. The United States had
examined the Indians on the British Columbian coast all along, and no
hindrance had been put in their way to examine any Indians; and when
this happened it was a complete surprise to Mr. Belyea, and it would
not have been possible to make any effective remonstrance. But I
must not be misunderstood, Sir, and I am sure that the Tribunal will
not misunderstand me; I ask them to take it from me that my criticism
only goes to the weight of the testimony, and I am entitled to use it for
that purpose and I am sure the Members of the Tribunal who are
acquainted with those matters will entirely agree.
The President. — Was this Indian, Claplankoo, who had a schooner
of his own, a British or a United States Indian?
Sir EiCHAKD Webster. — I think he was a United States Indian.
It is true that his affidavit is not one that Mr. McGlynn took; but the
very next one on page 383, if the Tribunal will look at the United
States Appendix beginning at page 377, — that is volume 2 of the
Appendix to their Case, and I am only digressing to answer your ques-
tion, Mr. President, and to dispose of the matter if I can, — you will see
that the first affidavit is by Bowachup. He was a marksman, and the
witnesses were McGlynn and Gay. The next is by Peter Brown, who
also makes his mark, and McGlynn was the witness. The next is by
Landis Callapa, also a marksman; you know the meaning of that, of
course, Mr. President: — That is, that he cannot write and naturally
cannot read this language. Mr. John McGlynn witnesses that. Then,
on page 380, he witnesses Circus Jim. He does not witness Claplanhoo ;
probably I should to have made the observation with reference to Circus
Jim. Then Frank Davis, also a marksman, is witnessed by McGlynn;
Jeff Davis does not appear to be Ellabush, on pages 385 and 38(3, is
also a marksman, a Makah Indian, and is witnessed by McGlynn.
Alfred Irwing, another witness, witnessed by McGlynn. Ishka, page
388, also witnessed by McGlynn. Selwish Johnson, page 38, also
witnessed by McGlynn; James Lighthouse, page 390 also witnessed by
McGlynn; Osly, page 391, also witnessed by McGlynn; Wilson Parker,
page 392, — I only refer to these who are marksmen, — witnessed by
McGlynn; John Tysam, page 394, also witnessed by McGlynn; Wat-
kins, page 395; Charlie White, page 396; Wispoo, page 397; Hishyulla,
page 398; and Thomas Zolnoks, page 399.
Now the language that those Indians are supposed to have used is of
course language not their own — their actual words cannot be, and I do
not suggest that it is not a true representation but of all testimony or
evidence that desires to be and ought to be tested by crossexamination
that is the class of evidence to which the test can be most usefully
applied.
I mention that because it is not to be assumed against us, the whole
of this evidence would remain as it is, if the opportunity had been
afforded of finding out what these men's real meaning was. The evi-
dence taken by another groui) of Indians, which I think was in Van-
ORAL ARGUMENT OF SIR RICHARD WEBSTER, Q. C. M. P. 147
couver Island, was tested. It was not taken by Mr. McGlynn and
wlieu a representative of Great Britain did come to examine those
witnesses it is found, and is found in tlie Appendix in a very remark-
able way that they go back from tlieir previous statements. 1 only
bring tiiat before the Tribunal in order respectfully to impress upon
them the importance of receiving ex parte testimony of these men,
uncrossexamined too, with a great deal of caution. I go back to pages
335 and 336. If the Tribunal indicate that I ought to read the whole
of these, I will, but I think I have sufflciently indicated my criticism.
I should like to refer to the journalist, because Mr. McManns was a
gentleman quoted by Mr. Coudert as a witness whose testimony miglit
have been of some weight, I call attention to it because it is obviously
put in a sensational and a journalistic way.
Tuesday the 25th Auiinst rain in morning. Boats and canoe otit at half past 9
o'clock; out all day (returning to dinner): Result: first boat, two seals reported,
wounded and lost live; seals said to be shy and wary, and not so numerous as for-
merly; attention called to cow seal being skinned (which I had taken for a young
bull). The snow white milk running down blood-stained deck was a sickening
sight. Indian canoe, one seal, total, 3 seals; 2 mediums and 1 cow. Wednesday 26th
August, cloudy morning, seals floating round schooner. Boats and canoe out all day.
Result: first boat, 1 seal; second boat, none; Indian canoe, 10 seals; total, 11 seals;
8 cows in milk and three medium Skiitper in first boat blamed the powder. Socou(l
boat said it was tuo heavy and clumsy for the work skipper reported having wounded
and lost 7, and the men in second boat 9 ditto, 16 in all. Ski[)per said seals not so
numerous as formerly, more shy; also blamed the powder. Evidently a great deal
of shooting and verv few seals to correspond. Thursday 27 August, seals to all
appearances very scarce, species being exterminated, so to judge from the skipper's
remarks. Weather fine and clear. Boats and canoe out; returned at noon, conse-
quence of rough sea. Result: first boat, 1; second boat, none; Indian canoe, 2 seals;
total, 3 seals. Again in favour of Indian spear. Powder blamed again. Tired of
such excuses. So far have not found one word of truth in anything I've heard pre-
viously about open sea seal-hunting.
Friday, 28 August, rain and heavy sea in morning; cleared in afternoon; boats
and canoe out in afternoon; returned at 6 p. m. No skins although a great deal of
shooting going on first boat reported having wounded and lost three seals; blamed
powder. Poor powder. It takes judging from the number of shots fired, about a
hundred to secure one seal.
Saturday, 29th August, ship's cook brought down from deck a large cow seal at
40 yards rise. Boats and canoe out all day; fine, clear, balmy weather; Aukatau
Island in sight. Result: first boat three seals; second boat, three seals; cook,
from deck, one; Indian canoe, ten; total catch, seventeen seals, greater proportion
cows in milk; horrid sight, could not stay the ordeal out till all were fiayed. A
large number reported as wounded and lost. According to appearances slaughter
indiscriminate.
It is quite clear that Mr. McManus is recording this in the way in
which journalists record these things, putting a very considerable
amount of colour into it, but I want to call attention to the fact that
no attention is paid to what was the actnal condition of these females
on the 29th August from the point of view of seeing whether in the
glands themselves thongh there was milk in the breast, the milk was
drying u}). I do not snggest it was ur.true and have never done so,
but I point ont from the point of view you have to consider which is
that of necessity, the incident referred to in this kind of language in
order as far as this witness was concerned to produce prejudice, does
not guide you or enable you to form a judgment.
Then this evidence goes on at page 93, and I say that desiring to
read it asfnlly against myself as it can be read I submit that it aii'ords
no guide at all from which any quantitative deduction can be drawn as
to the number of nursing females and the females with ])ups depend-
ent ux)oii them that are takeu in any given season or from any given
148 ORAL ARGUMENT OF SIR RICHARD WEBSTER, Q. C. M. P.
amount of killing. Would you look to page 93 almost the middle of
these entries.
W. H. Williams. Thousands of the female seals were captured by the pelagic
hTinters in Hehring Sea during the season of 1891, the most of which had to be
Becured quite a distance from the rookeries, owing to the ])re8ence of armed vessels
patrolling the sea for miles round the Islands, and that the slaughter of the seals
Avere mostly females was confirmed by the thousands of dead pups lying on the rook-
eries starved to death by the destruction of the mothers.
I am sure the Tribunal as they already know the importance of it
will not fail to notice that passage in connection with the inference
drawn by a gentleman who concludes at once from the fact that a large
number of pups being found dead in 1891, that their death was occa-
sioned by the mothers being killed at sea.
Now 1 pass from that criticism on that evidence and again repeat if
it were thought necessary I would certainly go through the whole
of these pages though I trust I have sufliciently brought my point
before the Tribunal, and I would now ask them to look at testimony
which shows that this question of the condition of the milk in the breast
is one of considerable importance. I would ask them to take the 2ud
volume of the A])pendix to the British Counter Case at pages -52 and
23. I cannot help thinking that this is just one of the matters upon
which the information before tbe Tribunal is by no means as full and
accurate as it ought to be for the purpose of coming to what I call a
final conclusion upon the matter. In the summary at page 22 I find:
Statement relating to the taking of Female seals in milk J.D.Warren says: Up
to the latter part of July I got a few Seals [in Behring sea] showing signs of milk
when skinning them. I do not think these females had ever been on the islands,
but had lost their pups at sea. I never saw a female killed in the sea having much
milk in them.
Micajah Pickney, master of the Henrietta, seized in Behring Sea in 1892, States that
of 420 seals taken by him about one-fourth were females who had had their pups
and the milk had dried up. This was between the 3rd August and the 4th Sep-
tember.
W. O. Hughes, when in Behring Sea in 1891, got after the 1st August hardly any
cows that showed signs of milk. He believes they had pupped on the island and
that the milk had dried up.
Mr. Justice Harlan.— Do the original depositions show the locality?
Sir EiciiARD Webster. — I will look.
Mr. .Justice Harlan. — I would not have you stop to do that.
Sir Richard Webster. — It is not stopping at all, Sir, because I
have them all noted. It is page 100. Hughes was a fur seal hunter.
In 1891 I was master of the " Katherine ", and in 1892 I was master of the
"Carmolite".
Last year in the "Katherine" I got about 1,500 seals, of which 191 were got on the
coast, and the remainder in Behriug Sea.
Last year the coast catch was about half females, and of these one half were with
pup. In Behriug Sea I got most of my catch about 100 miles westward of St. (ieorge
Island. Over half the catch in the sea were feuiales, none with pup; but in ihe
month of July about one third of the females were breeding cows showing milk.
After the Ist August hardly any cows got showed signs of milk. I believe they liad
pupped on the islands and the milk had dried up.
And then he goes to the next year, 1892, and he thinks on the coast —
I am coming to that later on — less than half of the females this year
were with pup. You will notice that he was sealing from the 2r)tli
April to the 10th May, and that was outside Behring Sea. I think
that which I have read gives you all the information you require.
Then I go back to page 22.
ORAL ARGUMENT OF SIR RICHARD WEBSTER, Q. C. M. P. 149
Joseph Brown states that after the 15th July a few cows in milk were got in Beh-
rinu Sea, but as the season grew later very few of these were got. " In the sea we
cannot tell whether a cow is barren or not".
James Stiteman found in Behring Sea that about two-thirds of the females taken
"wore breeding females showing milk — some times only a trace, nearly dried up —
others with a good supply.
It caiiuot be said that that is not evidence which is ^iven tiiirly.
Some statements tell, of course, against my contention, but I call atten-
tion to all that have a bearing on this.
Then.
Captain George Scott has taken in Behring Sea many females in which the milk
had .just about dried up.
Michael Keefe states that his vessel the " Beatrice" got 900 ski us in Behring Sea in
1890, between the 20th July and the 24th August. Two fifths of these were females
"not with a supply of milk, but a good many showing milk dried up". In 1891 his
vessel got 500 seals in Behring Sea, of which nearly half were cows. Most of the
cows showed dried milk in their breasts.
Of course, you are aware it is no part of my Case to deny that a larce
proportion of the seals killed are females. It must be so I am going to
deal with that part of the case when I argue in answer to tlie conten-
tion, that which I respectfully say is an unwarranted contention, that
it is a crime moral and illegal to kill the female seal. I will show the
justice of that when I deal with that part of the Case by itself I
merely note in passing that these witnesses state in one point of view
that which may be said to be against my contention, that a large pro-
portion, some of them a half, and some not so many — say two-fifths
were females. If it be a moral sin to kill females, why these witnesses
prove it, but my learned friends need not think that I am afraid of the
contention that they put forward. I protest, having regard to what we
know about seal lile, and having regard to what we know must take
place, that it is beyond all reason to contend that it is a crime to kill
female seals in the way in which my learned friend, Mr. Coudert in
very exaggerated language described it.
John Coburn says that in Behring Sea in the early part of the season some of the
females would be in milk, but later on the milk would be dried up.
George Wells was in Behring Sea in 1890 and 1891; about two-thirds his catch
were females, of which a few were in milk, but the most were dried up. After July
all the cows are dry of milk. It is only in the first three or four weeks in July that
cows in milk in any noticeable quantity are got.
I should like to see, if I can, when that man sealed. It is at page
107. He says 40 or 45 miles from the Pribiloff Islands, in one year, in
1890 — I do not think he states what distance he was from the Islands
in 1891. There is a case on which the evidence would correspond with
what you would expect from natural causes; during the earlier time
there might be more females with milk in them, and after that time, for
a considerable period, the milk would be drying up for two or three
weeks.
Then.
William F. Roland states that of the females taken by him in Behring Sea, more
than half were in milk of varying (juantities, from a good supply to a few drops in
cows about dried up. It is only in the early part of the season in Behring Sea we
get cows in milk, and before the end of the season they are about all dried up.
Arthur M. Roland says that in the first part of the season of 1891 he got a number
of cows in milk, but that after the Ist August the cows were nearly all dried uji.
John Matthews took in Behring Sea, in 1891, a very few cows in milk; some of
them nearly dry.
Andrew McKil says: up to the 1st August [in Behring Sea] the hunters get cows
with milk in them, but after that date the milk cows began to disappear, and very
soon none are got in milk. By the 20th August the milk in the cows had ail
dxied up.
150 OKAL ARGUMENT OF SIR RICHARD WEBSTER, Q. C. M. P.
Jaraes Gandin states that females taken between the 25th July, and the 2oth
August in Behriug Sea were nearly all dry, as if they were througli suckling their
pups.
The next three refer to the coast catch, and, therefore, do not liave a
bearing npoii what 1 am now dealing with. Tlien the last but two:
George Dishow: In Behring Sea I never got any cows with youug. A few cow*
there would bo in milk.
Otto Buchholz. In 1890 I sealed in the Behring Sea in .July. I got a few female
seals in milk. We sealed 35 to 50 miles from the Pribilof Islands.
Now, of course, if my learned friends are correct in the contention in
respect of whi<;h we are told by Mr. Phelps that we are going again to
hear arguments in respect of — that on general principles the whole of
this vast area is to be reserved for the United States, this argument
bears out their case; but from the point of view of showing you that a
large proportion of seals nursing their young are killed outside the
radius of 30 or 40 miles, I submit, for the reasons which I hope the
Court will be kind enough to take into their consideration, that that
evidence offers no satisfactory test or guide. I must remind the Tribu-
nal, without repeating it, of the remarkable evidence as to the female
seals remaining on the rookeries for a very considerable time, and to
the utter absence of the ordinary signs of food, (and I go as far as say-
ing, putting it from a naturalist's ])oint of view, it is utterly inconsist-
ent with the females taking any substantial amount of food while they
are nursing) — you have no excrement of any sort or kind on any of
these rookeries; and I put it, after you know from overwhelming testi-
mony that, from the beginning of July, or the middle of July, I will
put it, down on the east side, the pups are spreading away along these
islands, it seems to me strongly to corroborate the view thai; the pups
after that time cannot be dependent upon their mothers, and I shall
not fail to draw attention incidentally to one or two important facts
bearing on that contention.
The President. — You suppose these seals were taken fishing and
feeding, and would not return to the islands.
Sir EiCHARD Webster. — As I have already called to your attention
with regard to those who were examined, a very small proportion only
of them had any fish in them, and there is no evidence therefore, or
very little evidence — I ought to put it more correctly that there is only
evidence that a few of these were actually feeding. With regard to
those that are to be found after the 20th of July and through August,
my contention is that they are females that have, practically speaking,
done with the islands, and that are not going back to them. Again
with regard to those taken within short distances, it is possible they
have pups dependent on them, but in order to be satisfied of that you
must have some satisfactory solution with regard to the other circum-
stances, and the condition of the rookeries, M^hich I respectfully pressed
upon the attention of the Court yesterday. The piece of evidence to
which I refer red, with reference to that which is supposed to be con-
clusive, is in the Counter Case only, in Mr. Stanley Brown's evidence,
at page 387.
You will remember that reading yesterday from page 386 I reminded
you that qualifying his evidence of the previous year — I had not men-
tioned that fact before — Mr. Brown, when he made his affidavit in 1891
stated that the fenuiles left within a few days, and I say this as I have
said on previous occasions, I am sure Mr. Brown, as far as he observed
anything, would tell it accurately, if he thought it material, but at page
lo of the second volume of the Appendix to the Case, in his first
affidavit, Mr. Brown had stated.
ORAL AKGUMENT OP SIR RICHARD WEBSTER, Q, C. M. P. 151
For the first few days, and ]iossil)ly for a week or even ten days the female is ahle
to nourish her young, or offspring, but she is soon compelled to seek the sea for food.
It is no disrespect to Mv. ]>iowii to remind the Tribniial tbat till his
visit in 1891 to these Islands, he knew nothing about the seals at all.
Ill 1892, he makes a further affidavit, and he says.
I was able to satisfy myself that females begin to go into the water from 14 to 17
days after first landing.
It is a remarkable extension of the previous opinion showing- how
untrustworthy tirst impressions are, because the "week or ten days"
has become " from 14 to 17 days". The point is, the first going into the
water.
The next fact to which Mr. Brown speaks is to be found at the bottom
of page 38G :
The movements of females can also to a certain extent be well observed by their
appearance after giving birth to their pups, after fasting, and alter gorging them-
selves with food. After (lie birth of the pup, and after remaining upon the rookeries
even for a few days when the }H'riod of coming from and going into the water has
been entered upon, the mother lias a very decidedly gannt nppearauce, in strong
contrast to the 2jluni))uess of pregnancy or fall fee(ling. After feeding at sea they
come ashore again well rounded out. So marked is this that 1 have repeatedly been
misled by mothers in such a condition, mistaking them for pregnant cows, and have
discovered my error by seeing her call her pup and suckle it. If I had any doubt in
my mind as to the cows feeding at sea it was dispelled by an examination of three
cows I shot at Northeast Point on July 25th, 1892. Two "sunburnt " cows were first
killed and their stomachs were found to be empty.
Not an unimportant fact, that as late as the 25th of July, 1892, two
sunburnt cows, by which he means cows frequenting the Rookery, were
killed in order to try to solve this question, and were found to be empty.
Another was shot just as she came ashore and her stomach was gorged with half
digested codfish, which was identified by Mr. C. H. Townsend, an expert of the
United States Fish Commission. A dissection was made of this seal, and the udder,
which extends as a broad thick sheet at the centre, but thiuuing out towards the
edges, over the entire abdominal portion of the cow and well up to the fore flijipers,
was so charged with milk that on removing the skin the milk freely flowed out in
all directious, and previous to skinning it was possible with but little effort to extract
a sufficient amount to enable me to determine its taste and consistency. A large
supply of food is necessary to furnish such an abundant amount of milk. I have no
doubt that a well-developed mother seal could yield between a pint and a quart of
milk in the first 24 hours after landing from a feeding expedition, and with such
rich fountains to draw upon it is no wonder that the voracious pups increase during
their residence upon the island not less than four times their weight at birth. And
it is equally certain that without such a coustant supply of nourishment it could
not make such a rapid growth as it does.
With all deference to Mr. Stanley Brown's opinion, I do not wish to
discount it unduly, he is a geologist, and I have no doubt the study of
that enables him, to a certain extent, to follow out the matter closely;
but, v.iien we have to deal with this opinion and the facts proved, it
amounts to this, that there was one seal, as late as the 25th of July out
of three, — two being killed with no food and one that had some (whether
the seal had a pup or not upon the Islands, we are not able to tell), —
but it is obvious that Mr, Brown could not ascertain every fact about
it. It is not a matter which is in any way sufficient to enable this
Tribunal to overset and disregard the body of testimony to which I
called attention in regard to this matter yesterday.
Now, I come to that to which I ask the close attention of this Tribunal,
and that is a petition which I have never made uusuccessfuUy yet.
The United States believed, in 1891, that they had conclusive proof that
pelagic sealing caused the death of the seals, and accordingly they
stated that the death of the pups in 1891, to the amount of several
152 ORAL ARGUMENT OF SIR RICHARD WEBSTER, Q. C. M. P.
thonsaiids on the rookeries, was due to pelagic sealing. Tliis is a part
of the case toadied upon only in outline by my learned friend, the
Attorney General, l)ut is of so much importance, and admitted by the
United States Case to be of so much imi)ortance, that 1 do not make
any apology, for bringing it to the attention of the Court.
The facts are these. In 1891, ui)on two certain particular rookeries,
an extraordinary and abnormal death of seals occurred. In 1892, when
there was no pelagic sealing in Behring Sea, and at a time when the
same cause could not have produced the same effect, a greater death of
pups on the same place is discovered, — on particular spots on the
Island; and, if I establish that, 1 submit to this Tribunal, and subject
to any argument that may be heard on the other side, that the state
ment on which the United States Advocates have pinned their case is
completely demolished ; I will use no stronger expression than that.
Now, first, that you may kindly follow me, would you be good enough
to take the Chart n" 2 of the United States Case. You will notice
there St. Paul's Island and, beginning at the top, there is the North-
east Eookery; then there is the Little Polavina Eookery; then the
Polavina Point Eookery; then Lukannon Eookery; then Ketavie Eook-
ery; then Garbatch Eookery; Eeef Eookery; Lagoon Eookery; Tolstoi
Eookery and Zapadnie Eookery,— (I may say on St. George's Island,
there are the Great P^ast, the Little East, the North Eookery, the
Starry Arteel, and the Zapadine): — in all 8 or 9; by far the largest
being the Northeast Point Eookery. The only places in which the
excessive mortality of pups on the Eookeries occurred are at Tolstoi
Eookery, both in 1891 and 1892, which is just to the left of the village,
a little above and Polavina Point Eookery, which is the one underneath
Little Polavina.
If I am not asking the Tribunal too much, I will ask tliem to put a
mark against those two places. They will find that the testimony upon
both sides, both the United States and the British, is that the Eook-
eries upon which an abnormal quantity of dead pups were seen in
either 1891 or 1892 are those two; and they were seen in the same
places in the two corresponding years. I have said, and my words
may be presently criticised, I will prove this from the United States
Case as well as our own.
I will also mention — and I should like it to be noted now, you will
see just above the words "Eeef Eookery" a little bay I shall be able
to show you by testimony also coming from the United States that
some seals killed by surf evidently were observed in the year 189U by
Mr. Palmer in 1892 in another bay outside Zapadnie by Mr. Macoun
just by the South-West bay it is called, and I shall show you that that,
has nothing to do with this extraordinary mortality u[)on the rookeries.
Now if I make my point good, nobody will deny it is of very great
significance with regard to tliis argument. I will only remind you of
what Williams says in his affidavit. He stated that large numbers —
thousands, had been been killed at the sea, the mothers having been
killed, and that was proved by the dead pups found in 1891, he draw-
ing the conclusion from what he believed to be, I have no doubt, the
facts at that time. First, I ask, if this is true, is it not sufficient in
itself to dispose of the contention tliat pelagic sealing could have been
the cause. Does anybody suggest that the action of pelagic sealers
would differentiate between Ketavie Eookery or Polavina or Lucannon
and Polavina Point or Garbatch, or in fact the seven or eight other
rookeries in many cases for the largest is the North East extending for
some three miles all the way round and admitted upon the United
ORAL ARGUMENT OF SIR RICHARD WEBSTER, Q. C. M. P 153
States statement to be tlie largest of tlie rookeries — can anybody sug-
gest any reason why, if it was pelagic sealing, those pnps should have
died on those two rookeries alone and in those two places'?
Senator Morgan. — You mean the abnormal death.
Sir KiCHARD Webster. — Of course, I do not deal with the normal
death.
Senator Morgan. — Not with the normal death at all.
Sir EiCHARD Webster. — I will point out what the normal death is.
Senator Morgan. — We get then half of the abnormal death.
Sir lliciiARD Webster. — Yes, because what happened in 1891, every-
body agrees is something entirely abnormal. It is suggested after this
case began for the first time that this abnormal death of i)ups had been
noticed gradually increasing from 1884 to 1891. 1 shall ask the Tribunal
to come to the conclusion that that is not only the fact, but can be shewn
to be so from the United States own evidence. Be it as it may, it will
make no dilTerence to my point: it will be as good to me to show that
pelagic sealing cannot have been the cause of the abnormal death of
j)ups to which I am referring.
That I may not have to go back to the map, you will follow that
argument with reference to the Island of St. Geoige about one third or
one-fourth of the size, having regard to the seals killed in reference to
its importance. It is, of course, as you already know, common ground
that no abnormal death of pups has ever been noticed on the Island of
St. George. The argument which I have addressed to the Tribunal
pointing to the selection of rookeries on St. Paul Island applies equally
as between St. Paul and St. George, and I only mention it for the pur-
pose of enforcing what I have said. Now the otherside knew perfectly
well this was a most important point. It was made so in the original
United States Case. It was made so in the British Case. It was made
so in the British Counter Case; and I will not leave any reference
untouched as far as I can. How has this been dealt with up to the
present time? I read from page 706 of the Shorthand Note of my learned
friend Mr. Coudert's speech.
Now with regard to the question of dead pnps the learned Tribunal will find that
considerable space is tlevoted to the examination of that question and the origin of
their death. Of course, these animals will die, as all animals Avill, and a certain
portion of tliem would perish under the best circumstances, but when there is a
large loss, and that loss is coincident with the death of the mothers, I do not think
that wo need to go into any careful examination or balancing of testimony. If we
find a man with a bullet through his brain lying on the ground, even in the hot sun
of July, we assume that he was killed by that bullet, and not by the sunstroke.
That is very fine, but it does not seem to me with deference to have
much bearing on the point.
And 80 when we find, at a certain period of the year, that a large number of pups
die on the islands, that they are emaciated, and when they are opened there is
nothing in their stomachs, or nothing but a very little milk; and you are shown at
the same time that the mothers upon which they depend for sustenance have been
killed — unless something can be shown that prima facie appears to account for the
death outside these natural causes, we must assume that they die of starvation, and
that is what the testimony undoubtedly shows.
And that is the whole argument that has been addressed to this Tri-
bunal upon a matter which is vital and has been made vital in both the
printed Cases in relation to this question of the death of pups.
Now will the Tribunal, as I have asked them already follow me some-
what carefully in regard to this matter. The case now made by the
United States is that there had been a gradual, but observed, abnor-
mal increase of dead pups right away from 1884 to 1891 — culminating
in 1891, and they have produced 4 or 5 affidavits all taken in the year
154 ORAL ARGUMENT OF SIR RICHARD WEBSTER, Q. C. M. P.
1892 of people who were resident upon tlie Islands in the years 18S5
and 1886 to say tliat they noticed the increase of dead pn))s. They do
not give the place. They did not localize where these pnps are found.
They make no connection of any sort or kind between the two particu-
lar rookeries to which the evidence is most particularly addressed on
both sides : they simply make the statement ex 2)ost facto, their affidavits
being taken in April 1892, that they remember that during the years
1884 to 1890 they found that there were more of these dead pups than
usual. You will find that collected together in page 406 of the Collated
Testimony. The first is Clark :
Dead pup seals whicli seem to have starved to death grew very numerous in the
rookeries these later years.
That is up to 1889.
And I noticed that driving the hatQhelor seals for killing, as we started them up
from the beach, that many small puj^s half starved, apparently motlierless had wan-
dered away from the breeding grounds, and became mixed with tlie killable seals.
The natives called my attention to these waifs saying that it did not use to be so,
and that the mothers were dead, otherwise they would be upon the breeding
grounds.
That is an affidavit made in the May of 1892.
Then Hansson who made his affidavit on the 30th April says:
There were a good many dead pups on the rookeries every year I was on the
island.
He was there from 1886 to 1891.—
And they seemed to grow more numerous from year to year. There may not, in fact,
have been more of them, because the rookeries were all the time growing smaller and
the dead pups in the latter years were more numerous in proportion to the live ones.
ThenMr. Mclntyre:
The seals were apparently subject to no diseases; the pups were always fat and
healthy and dead ones very rarely seen on 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 iierished the preceding season, a ])art of them dying
iipon the islands and others being washed ashore, all seeming to hu\'e starved to
death. The same thing occurred in 1886 and in each of the following years to and
including 1889, Even before I leit the islands in August 1886, 1887, and 1888, I saw
hundreds of halfstarved, bleating emaciated pups wandering aimlessly about in
search of their dams and presenting a most pitiable appearance.
Then Morgan is the last of them :
But facts came under my observation that soon led me to what I believe to he the
true cause of destruction. For instance during the period of my resideuce on St.
George Island, down to the year 1884, there were always a number of dead pups, the
number of which I can not give exactly, as it varies from year, to year and was
dependent upon accidents or the destructiveness of storms young seals do not know
how to swim from birth, nor do they learn how for six weeks or two mouths 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's Island —
I hope the Tribunal will notice this because it is agreed that there is
no abnormal pups in St. George's Island in 1891 or 1892 —
there was a marked increase in the number of dead pup seals amounting perhaps to
a trebling of the numbers observed in former years, so that I would estimate the
number of dead pups in the year 1887 at about live or seven thousaud 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
judgmeut 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 kilh d
by accidents were almost invariably fat. Learning further through the London
sales of the increase in the pelagic sealiug, it became my tirm conviction that the
constant increase in the number of dead pups and the decrease in the number of
ORAL ARGUMENT OF SIR RICHARD WEBSTER, Q. C. M. P. 155
marketable seals and breeding i'euiales found upon the islands during the years 1.SS5,
1886 and 1887 were caused by the destruction of female seals in the open sea, either
before or after giving birth to the pups. The mother seals go to feeding grounds
distant from the islands, and I can only account for the number of starved pups by
supposing that their mothers are killed while feeding.
The next gentleinan O. W. Price, whose evkleuce is uot of much
importance, but I will read it
visited the Pribilof Islands in 1890 and made a careful study of the conditions of seal
life in those Islands. I discovered late in the season a large number of dead pups
lying upon the rookeries whicli had the appearance of having Ijeen starved to death.
That was an afQdavit made in 1892. The gentleman is a fur merchant.
Senator Morgan. — What Island does he speak of?
Sir EiCHARD Webster. — 1 will look; I think he speaks of St. Paul,
if I remember rightly, no he only says the Pribilof Islands. He is a fur-
dresser and an examiner of raw fur-skins.
I have been engaged in the dressing and examining of fur-skins about 20 years,
and I am an expert in that business. I have examined and handled largo numl)ers
of fur-seal skins both of the American and Russian side, and can easily distinguish
one from the appearance of the skins,
and so on.
Then he says :
I visited the Pribilof Islands in 1890, and made a careful study of the conditions
of seal life on those Islands. I discovered late iu the season a large number of dead
pups lying upon the Rookeries, which had the appearance of having been starved to
death.
That Affidavit was made in April, 1892. Now, I do hope I can make
my meaning clear to the Tribunal in this respect; if this evidence is
true, there must have been iu 1890 a very large and abnormal number
of dead pups either on the same Eookeries or upon other Eookeries.
It is the fact (we have the Reports) that of every Government Agent
who was there from 1884 to 1891, not one makes the slightest reference
to any increase in the number of dead pups, or to any abnormal number
of dead pups; and what is more important perhaps than anything is
this; in 1890 Mr. Elliott goes to the Island, and I shall be in a jiosition,
when I come to Mr. Elliott's Eeport, to point out to you the position he
held, the undoubted authority he possesses, and the obvious weight that
must be given to his personal observations; but he was accompanied
on that Islaud by four gentlemen, Captain Goff, Captain Lavender, Mr.
Murray and Mr. Nettleton, and all four of them make Eeports, and
ft-om day to day they were all over that Island. There is not a trace or
suggestion in one of their Eeports of there being any abnormal death
of pups from any cause. People, who have had no connection with the
Island for years, make affidavits in 1892 that they noticed the death of
pups in 1885, 1886, 1887 and 1888; bnt people whose duty it was to
observe it, or record if anything occurred, noticed nothing of the
matter. When I call attention to the extraordinary character of the
personal investigations made from day to day and written down from
tim.e to time with i eference to each of these Eookeries by Mr. Elliott
in 1890 and attended by these very Treasury Agents in the pay of the
United States Government, it is impossible to come to the conclusion
that this story of there having been an al)normal death of pu]is in the
year 1890 can possibly be true. Mr. Goff was the Agent for the Treasury
on the Islands in the year 1890; he makes his Eeports in the years
1889 and 1890, which are printed in the documents and which are
before the Tribunal.
I will call attention to the 1889 Eeport, whiclj is in the 1st Volume of
the Appendix to the British Counter Case, at page 84. It was produced
156 ORAL ARGUMENT OF SIR RICHARD WEBSTER, Q. C. M. P.
ou notice by General Foster, and it will save the Tribunal a little trouble
if I tell tbein at present that my references are negative to show tliat
tliey make no reference to this matter. I shall have to refer to these
Reports later on in another connection. Mr. Golf made his report to
Mr. Wiudom on the 31st of July, 1889 ; and there is not the slightest
reference to any abnormal death of pups. Tiiere is a reference to the
cause of decrease which I must not be tempted to read now; otherwise,
1 shall be open to the complaint of reading the same thing twice. In
1890 (the reference will be found in the 3rd Volume of the Appendix to
the British Case, third part, page 15), Captain Goff again makes a
Report, and I call attention to what Cai)taiu Goff knew with regard to
what was going on.
He writes ou tlie 31st July, 1890,
Professor H. W. Elliot your recent appointee as Treasury Agent, has spent the
season here, dividing his time between the two islands, and giving his entire atten-
tion to the state of the rookeries and the methods used at present in driving and
killing the seals, and his report will, no doubt, be of the utmost importance, and of
great value to the department.
Mr. William Palmer, a representative of the Smithsonian Institution, has, by your
permission, spent the season on St. Paul collecting specimens of various birds and
animals, and his incessant labours have been abundantly rewarded.
I know it is tlie line of the United States to belittle the experience
and observations of these men. Tliat is their attitude to-day; but I at
present call attention to the fact tliat there was a careful examination
Ijeing made, with the knowledge of these Treasury Agents, in 1890, by
independent gentlemen, and had it been true that upon tlie: e very
rookeries tliere was, as the later affidavits say, evidence of an abnormal
quantity of dead pups, it must have been observed.
I will not read any further passages from that. Mr. Murray the
Treasury Agent from 1889 to 1892 made a Report in 1890. It will be
found at page 18 of that same third part of vol. 3 of the Appendix, and
Nettleton's will be found at page 48, and Lavender's at page 52, and not
one of these gentlemen makes any suggestion of any dead pups there
in 1890. But what is more remarkable — and I trust the Tribunal will
follow this is, three of these gentlemen make affidavits for the United
States as well — Mr. Goff, Mr. Murray and Mr. ISTettleton, and two or three
— I think three, but certainly two — have made affidavits which, if it
had been the fact that these pups were observed dead in 1889 and 1S90,
it must have come to their knowledge, and their affidavits are absolutely
silent with regard to the matter Mr. Lavender the fourth agent had
been active in getting affidavits for the United States, but makes none
himself in support of this. It does not stop there. There are three
Company's agents on the Island, and I need not tell you that the Com-
panys interest would be to tell any fact that showed that their industry
had been interfered with by ])elagic sealing. It is the interest of the
Company to bring those facts before the United States. The first of
the affidavits is Mr. Fowler's, who has been on the Islands since 1879.
It will be found at pages 25 and 26 of Appendix to the United States
Case. He refers to the death of the pups in 1891, and does not suggest
that it ever occurred before that year.
Now tliere is the Agent on the Island of the Company referring to
the fact in 1891 as supporting their case and making no reference to
what is now suggested by other peojde who had not anything like his
experience — that something of the, same kind had been going on from
1884 to 1881, and they now use it to show that pelagic sealing was the
cause. Eedpath, a witness not unfrequently referred to both in the
ORAL ARGUMENT OF SIR RICHARD WEBSTER, Q. C. M. P. 157
argument and in the Caseby tbe United States swore an affidavit wliich
is given at page 152 of the same Appendix — the 2nd Appendix to the
United States Case, and he refers to it in this language:
In 1891 the rookeries iu St. Paul Island were covered in places witli dead pups, all
of wliicli had every symptom of having died of hunger, and on opening several of
them the stomachs were found to be empty. The resident physician, Dr. Ackerley
examined m:iny of them and found in every instance that starvation was the cause
of death. The lowest estimates made at the time placing the number of dead pups
on the rookeries as 25,000 is tdo high.
I ask you in all fairness, and I ask those in the habit of considering
evidence, if this were possible, if this were true, if this were a gradu-
ally increasing occurrence of dead pups on these rookeries, these gen-
tlemen could have been possibly ignorant of it, and, yet they are mak-
ing aflidavits on the part of the United States and are in the position
of knowing, and had it been the fact they must have spoken to it.
Mr. Daniel Wel'Ster — he has been on the Islands since 1870 — makes
an affidavit at page 183 of the same second volume, and he refers to
the fact of the death of seals — the mothers who had left pups on the
rookeries. He refers to that fact as being a cause of the death of the
pups, and there is not a suggestion made that prior to the year 1891
this abnormal death of pups occurred. He, Mr. President, was the
Superintendent on St. George's Island during that very year when the
Witness Morgan states, contrary to everybody else in this case, that in
the year 1889, I think it was, (I read it this morning), he noticed 5,000
or 0,000 pups dead in an abnormal manner upon St. George's Island.
Now, quite apart from any testimony coming from my side, quite
apart from any testimony in respect of which it may be said that it is
British testimony or British witness, can you have anything stronger
than that; all the Government Agents during that series of years,
from 1884 to 1891, and that the Company's Agents on the Islands dur-
ing that time, have never breathed tlie suggestion that from 1884: up
till 181)0 there had been noticed a gradual abnormal death of pups on
the liookeries, which they could only attribute to pelagic sealing! I
say that it does not impress one with the care that has been taken in
connexion with the obtaining and preparing the evidence in this case
that such should be the state of the matter.
Now, Sir, at page 84 of the same volume there is a witness of the
name of Dr. Noyes, and no doubt, a gentleman of position. He had
been upon the island, if I remember rightly, a great many years — I am
not quite sure — from 1880. He was partly on St. George and partly on
St. Paul, and he says:
The epidemic theory was urged very strongly in 1891, when the rookeries were
found covered with dead pups; but a careful and technical examination was made
on several of the dead bodies without discovering a trace of organic disease; while
starvation was so apparent that those who had examined them decided that it was
the true cause of their death. Had sickness or disease attacked the seal herd, it is
only reasonable to sup])ose a few grown seals would be found dead where so many
young ones had died so suddenly; but the most diligent search has failed to find a
grown seal dead upon the islands I'rom unknown causes.
It is scarcely to be believed that a gentleman of his position observ-
ing upon this abnormal death of ])nps in 3 891, resident in the island
the whole time, would, if it had been true that this fact had been grad-
ually increasing and attracted the attention of the residents of the
island one of these witnesses actually says wlien he went back the
natives told him they had observed large numbers in the years 1885
and 188G — well, I have sufticiently indicated to the Tribunal that if I
relied on the United States testimony alone, it would negative the sug-
158 ORAL ARGUMENT OF SIR RICHARD WEBSTER, Q. C. M. P.
gestion that there liad been a gradual increase of these dead pups
extendii)g over the time when, according to the contention of my
learned friends they suggest pelagic sealing had been becoming a for-
midable factor in the case.
Kow I must ask the Court to be good enough to notice what is our
testimony with regard to this matter. I will first read the United
States case upon it. Page 213 of the United States case says:
Professor Dall, wbo visited the rookeries in 1880, says: ''There were not in 1880
sufficient dead pups scattered over the rookeries to attract attention, or form a fea-
ture on the rookery". Captain Bryant, Avho was on the islands from 1870 to 1877,
says: "A dead pup was rarely seen". Mr. J. H. Moultou, who was on St. George
Island from 1877 to 1881, says: "There were practicallj^ no dead pups on the rook-
(nies. I do not think I saw during any one season more tlian a dozen." Mr. H. G.
Otis, Treasury agent on the islands from 1879 to 1881, states that "it was a rare
thing to find a dead pup," Mr. H. A.Glidden, the Government agent from 1882 to
1885, says : — " During the time I was on the islands I only saw a very few dead pups
on the rookeries, but the number in 1884 was slightly more than in former years."
Then comes the allegation to which I have called attention that
from 1884 up to 1891, the United States' Case alleges that there had
been a gradual increase of these dead pups without specifying the par-
ticular rookeries, and that this death of i)ups was occasioned by pelagic
sealing.
Now I call attention, if you please, Mr. President, to the British Com-
missioners Eeport, paragraph 344, where they say:
In the season of 1891, considerable numbers of dead pups were found in certain
places upon the rookery grounds or in their vicinity, and various hypotlieses were
advanced to account for this unusual mortality. As some of thes'- have special
bearings on the general (juestion of seal j)reservation, it may be well to devote afew
words to this particular subject.
In order to exhibit the circumstances surrounding this fact and to arrive at a prob-
al>le explanation of its true meaning, it will be necessary in the first instance to
give in summarized form the observations and notes bearing upon it made on the
ground by ourselves.
When visiting Tolstoi Rookery, St. Paul Island.
That is the one I pointed out to you Sir. —
On the 29th July, we observed and called attention to several hundred dead pups
which lay scattered aljout in a limited area, on a smooth slope near the northern or
inland end of the rookery ground, and at some little distance from the shore.. The
bodies were i^artly decomposed, and appeared to have lain where found for a week
or more, which would place the actual date of the death of the pups, say, between
the 15th and 20th .July. Neither the Government Agent who ^vas with us, nor the
natives forming our boat's crew at the time, would at first believe that tlie objects
seen on the rookery were dead pups, affirming that they were stones; but when it
became clearly apparent that this was not the case, they could suggest as causes of
death only over-running by bulls or surf along the shore, neither one of which
appeared to us at the time to he satisfactory. Mr. D. Webster, interrogated on the
subject some days later on St. George Island, offered merely the same sugu,estions,
but a few days still later, both Whites and natives on the islands were found to have
developed quite other opinions, and to be ready to attribute the deaths to the opera-
tions of pelagic sealers killing mothers while off at sea, and leading to the death of
pups from starvation consequent on such killing.
"JS'ow nobody will accuse the British Commissioners of giving otherwise
than an accurate record of what their recollection is as to what occurred.
Is it conceivable that if this took place it should be true that the
natives — the agents — the people iii)on the island — had been observing
this thing gradually going on from 1884 on this rookery or on any
rookery ?
Then the British Commissioners say:
347. Believing the matter to be one of considerable importance, however it might
be explained, particular attention was paid to it on subsequent visits to rookeries.
On the 31st July and the Ist August the rookeries of St. George were inspected, but
ORAL ARGUMENT OF SIR RICHARD WEBSTER, Q. C. M. P. 159
no similar appearances were found, nor was anything of the same kind again seen till
the 4th August, on Polavina rookerv. St. Paul Island, where, near the soatliern
extremity of the rookery, several hundred dead pups were again fonnd by us, here
also covering an area of limited size, which we were nble to examine carefully with-
out disturbing the breeding seals. It was estimated tliat the pups here found had
died between ten days and two weeks before, which would place the actual date of
deatli at about the same time with that of those hrst referred to.
318. On the following day the extensive rookeries of North-East Point were visited
and examined, but very few dead pups were anywhere seen. Mr. Fowler, in charge
of these rookeries for tlie Company, was specially questioned on this point, and fully
confirmed the negative observations made by ourselves at the time. It may here bo
mentioned that the vicinity of North-East Point had been the principal and only
notable locality from wliich, up to this date, sealing vessels had been sighted in the
olting, or had been reported as shooting seals witliin hearing of the shore.
849. On the 19th August, after a cruize to the northward of about a fortuight's
duration.
I ask tlie Tribunal to note the dates — the 15th, 20th and 31st of
July; the 1st August and the 19th August.
Ou the 19th August, after a cruize to the northward of about a fortnight's dura-
tion,, we returned to St. Paul, and on the same day revisited Tolstoi Rookery. On
this occasion the dead ])ups previously noted were still to be seen, but the bodies
were flattened out and more or less covered with sand, by the continuous movement of
the living seals. There were, liowever, on and near the same place, and particularly
near the angle between Tolstoi Rookery aiul the sands of English Bay, many more
dead pups, larger in size than those first noted, and scarcely distinguishable in this
respect from the living jiups which were then "podded out" in great numbers in the
immediate neighbourhood. Messrs. Fowler and Murray, who accompanied us on
this occasion, admitted the mortality to be local, and the tirst-named gentleman
stated that iu his long experience he had never seen anything of the kind before,
and suggested that the mothers from this special locality might have gone to some
particular "feeding bank," and have there been killed together by sea sealers. On
the same day we visited the Reef Rookery again, and a search was made there for
dead pups, which resulted in the discovery of some of approximatelj^ the same size
with those last mentioned, but probably not more than an eighth, and certainly not
more than one fourth, in number as compared with the inner end of the Tolstoi
Rookery ground, and proportionately in both cases to the number of living pups.
350. While making a third insjiection of the St. Paul rookeries iu September, on
the 1.5th of that month, the Reef and North-East Point rookeries were again specially
examined. 'I'he rookery ground of the south-eastern side of the Reef Point was
carefully inspected area by area, with field-glasses, from the various rocky points
which overlook it, and irom which the whole field is visilile iu detail save certain
narrow stony slojies close to the sea-edge, where dead pups might have been hidden
from view among the boulders. Subsequently, the north-eastern sloping ground,
named Gorboch on the ]ilaus, being at that date merely occupied by scattered groups
of seals, was walked over. The result of the inspection was to show that there
were on the south-east side a few dozen dead pups at the most in sight, while on the
opposite side perhaps a hundred in all were found in the area gone over, being, prob-
ably, the same with those seen here the previous mouth, and in number or contiguity
not in any way comparable with those seen at the iuner end of Tolstoi.
351. On the same day a final visit was made to the North-East Point rookeries, then
iu charge of three natives only. Two of these men went over the ground with us, aud
were (juestioned on various subjects, including that of dead pups, through our Aleut
inter])reter. They would not admit tiiat tliey had seen any great number of dt'ad
pups on the North-East Part this season, and did not seem to be in any way impressed
Avith the idea that there had been any unusual mortality there. The ground to the
north of Hutchinson Hill was, however, carefully examined by us from the slopes
of the hill, aud a few dead pups were made out there. Again, at a place to the
north of Sea-lion Neck of the plans, and beyond the sand beach upon wliich hollus-
chickie generally haul out, a slow advance was made among a large herd of females
aud pups, though part of these were necessarily driv^eu oft' the ground in so doing.
An occupied area of rookery was thus walked over, and the dead pups whicli
appeared at this sjiot to be unusually abundant were counted with approximate accu-
racy. A very i'ew were found scattered over the general surface, but on approaching
the shore edge, an area of about 20,000 square feet was noted, in which about 100
dead pups were assembled. Some of these lay within reach of the surf at high tide.
Most appeared to have been dead for at least ten days aud several were broken up
and nuTugled by the niovenieut of the living seals on and about them. This par-
ticular locality showed a greater number of dead pups to area than any other seen
160 ORAL ARGUMENT OF SIR RICHARD WEBSTER, Q. C. M. P.
at tliis time either on the North-East or Reef rookeries, but in mimlier in no respect
comparable to that previously noted at Tolstoi, or even to that on the south part of
Polavina.
Then the Keport refers to the examination of the bodies which was
done under the knowledge of Mr. Stanley Brown, but from the point of
view of number it is not material.
Now Mr. Stanley Brown refers to this same occurrence in the year
1891. 1 am dealing, entirely, Mr. President, with dead pups upon the
rookeries. At the bottom of page 18 of the Second volume of the Appen-
dix to the United State case, Mr. Stanley Brown makes a statement,
and I ask whether it is i)ossible if it were true that what was discovered
in 1891 was only the development of what had been going on in 1887,
1888, 1889 and 1890, it would be possible that Mr. Stanley Brown's Atiida-
vit could have been what it is?
Now this is what he says :
In the latter part of July, 1891, my attention was called to a source of waste, the
efficiency of which was most startlingly illustrated. In my conversations with the
natives I had learned that dead pups had been seen upon the rookeries in the past few
years in such numbers as to cause much concern. By the middle of July they pointed
out to men hero aud there dead pups and others so weak and emaciated that their
death was but a matter of a few days.
By the time the British Commissioners arrived the dead pups were in sufficient
abundance to attract their attention, and they are, I believe, under the impression
that they first discovered them. I procured a number of these puiis, aud U' Akerly
at my request, made autopsies, not only at the village, but later on uj)Ou the ruokcriea
themselves. The lungs of these dead pups lloated in water. There was no orgauic
disease of heart, liver, lungs, stomach, or alimentary canal. In the latter there was
but little aud often no fecal matter and the stomach was entirely em])ty. Pups in
the last stage of emaciation were seen by me upon the rookeries, and tlieir condition
as well as that of the dead ones left no room to doubt that their <leath was caused by
starvation. By the latter part of August deaths were rare, the mortality having prac-
tically ceased. An examination of the warning lists of the combined tleets of British
and American cruisers will show that before the middle of Auiiust the last sealing
schooner was sent out of Behring Sea. These vessels had entered the sea about .July
first, and had done much eftective work by July 15th. The nxntality among the
pups and its cessation is synchronous with the sealing fleets arrival aud departure
from Behring Sea.
If I had to criticise that, Mr. President, from the actual dates, it would
not be found to be strictly accurate, but I do not want to i)ause to discuss
a i^oint which is not of such great importance; because what I am going
to call attention to later on, makes all criticism attempted to be founded
on the dates of vessels in Behring Sea become of no importance at all.
Now at page 101 of the same book — the second volume of the Appen-
dix to the United States Case — will be found the evidence of Mr. Barnes,
Avho says this :
One day, during the latter part of August or fore part of September last (exact
date forgotten), Col. Joseph Murray, one of the Treasury Agents, and myself, in
company with the British Commissioners, Sir George Baden-Powell and D'' Dawson,
by boat visited one of the seal rookeries of that Island, known as Tolstoi or English
Bay. On arriving there our attention was at once attracted by the excessive uumbcr
of dead seal pups whose carcasses lay scattered profusely over the breeding ground
or sand beach bordering the rookerj"^ proper, and extending into the border of the
rookery itself. The strange sight occasioned much surmise at the time as to the
jjrobable cause of it. Some of the carcasses were in an advanced stage of decay,
while others were of recent death, and tlieir general appearance was that of having
died from starvation.
There were a few that still showed signs of life, bleating weakly and piteonsly, aud
gave every evidence of being in a starved condition, with no mother seals near to or
showing them any attention.
D' Dawson, while on the gound, took some views of the rookery with his Kodak;
but whether the views he took included the dead pups I could not say.
ORAL ARGUMENT OF SIR RICHARD WEBSTER, Q. C. M. P. 161
They did, and they are here, Mr. President, if the Court desires to see
them. Then he says.
Some days after this — cannot state exact date — I drove with Mr. Fowler, an
employ^ of the lessees, to what is known as Half Way Point, on Polovina rookery.
That is the other one I mentioned.
Here the scene was repeated, but on a more extensive scale in point of numbers.
The little carcasses were strewn so thickly over the sand as to make it difficult to
walk over the ground without stepping on them. This condition of the rookeries
in this regard was for some time a common tojiic of conversation in the village by
all parties, including the mure intelligent ones among the natives, some of whom
were with Mr. J. Stanley Brown in his work of surveying the island and brought in
reports from time to time of similar conditious at substantially all the rookeries
around the Island. It could not, of course, bo well estimated as to the number thus
found dead, but the most intelligent of the natives — chief of the village — told me
that in his judgment there were not less than 20,000 dead pups on the various rook-
erics in the island and others still dying. Dr. Ackerly, the lessees' physician at the
time, made an autopsy of some of the carcasses.
And so on. Now I note in passing that the Rejiort on the face of it is
obviously not in accordance with the fticts because there was an exami-
nation made by Professor Dawson, Sir George Baden Powell and Col.
Murray, of the actual condition of the other rockeries, and it will be
found in the United States papers that they also put the mortality at
the same place — namely Tolstoi and Polavina.
Now Mr. President I call attention if you please to the fact, if you
will kindly look at the Appendix to Mr. Elliott's Report of 1890, that he
Is day by day visiting these rookeries in the year 1800 and making his
field notes. For instance, this particular rookery is called "Tolstoi".
It was visited — (I am reading from page 240), on the 12th June; the
21st June; the 23rd June; the 24th June; the 27th June; the 30th June;
the 1st July; the 7th July, and the 10th July. And the next one — the
Polavina rookery — is visited on the 3rd June; the 4th June; the 25th
June; and on the 3rd July; and you will find in later parts of the same
record, careful notes taken of the condition of tliese rookeries on a
number of later days to which 1 shall have to call attention in connection
with another part of the case. I have already told you on many of these
occasions he was accompanied by these Treasury Agents.
It is quite impossible to come to the conclusion that if there was in
1890 anything corresponding with this, it would not have been seen.
But we have a very remarkable indirect corroboration of this. Pro-
fessor Palmer was there. He too knew nothing about seals till he went
there in the year 1890, and the United States have printed at page 201
of their Counter Case that part of Professor Palmer's Report which the
British Commissioners had not annexed to their Report because it did
not bear directly upon the particular point that they were discussing
and for which they were citing Professor Palmer's Report. But on page
291 it will appear that Professor Palmer, a stranger to the island, had
his attention called to the death of the seals — that is to say, seals killed
by the surf, and himself noticed seals killed in the same way that Mr.
Macoun noticed in that bay to which I called attention, called Zoltoi
Beach — killed as we know seals frequently were killed by the surf — and
yet there is not a reference in the whole of Professor Palmer's paper
from beginning to end, to any abnormal occurrence as to the seals either
at Tolstoi or Zapadnie or any other rookery in the island at all.
Mr. Carter. — Do you mean that he imputes the death of them to
the surf!
Sir Richard Webster. — I say what Mr. Palmer describes is un-
doubtedly the death from surf.
B S, PT XiV 11
162 ORAL ARGUMENT OF SIR RICHARD WEBSTER, Q. C. M. P.
Mr. Carter. — If you Avill read it, it Avill be a little more definite.
Sir EicHARD Webster.
The nuniher of pups about the shore of St. Paul began to attract my attention
about the middle of July, last ye.ar. On August 2nd I stood on Zoltoi Beach.
Zoltoi Beach is tlie place that I showed the court when I was calling
attention to tliis. —
And counted dead pups within ten feet of me. and a line of them stretched along
the beat'h many of tlieu) starved to death on tlie rookeries, but by far the greater
number sunk in the deep water along the margin of the rookeries.
Mr. Garter. — You did not begin quite high enough.
Sir EiCHARD Webster. — I began at any point that refers to observ-
ing the seals. Where do you wish nie to begin, Mr, Carter?
Mr. Carter. — If you want to get wluit he imputed as the cause of
it, you should begin a sentence or two higher.
Sir EiCHARD Webster. — I beg my friend's pardon. I was not in
any way referring to that. 1 was calling attention to the fact that Mr.
Palmer, observing these matters does not suggest that either on Tolstoi
nor on the other rookery, Polavina, to which I have called attention,
there was any abnormal death, and I am calling attention to it for the
pui-pose of showing that every person who was there in the years 1890
and up to that time proved by their statements that that state of things
which the United States in their rei)ly suggest cannot possibly have
existed.
Now I come, if you please, to the year 1892; and the Tribunal will
find that the condition of things rel'eired to in the year 1892, in the
first volume of the Api)endix to the British Counter Case. Before I
read this, Mr. President, may I remind you of certain admitted facts.
It is admitted that the total pelagic sealing in Behring Sea, the whole
of Behring Sea, in the year 1892, was under 500. I will first make
that good before I read from page 145 of the Counter Case.
Mr. Carter. — You say it is admitted?
Sir EiCHARD Webster. — I said admitted.
Mr. Foster. — If you say the eastern part, we will accept it.
Sir EiCHARD Webster. — I was not aware that from this point of
view it was important. Mr. Foster is perfectly accurate. It is so very
far away, Mr. President, that I may be pardoned for liaving spoken of
it as Behring Sea. Whnt Mr. Foster desiies me to point out as a limit
is a reference to the killing in what they call United States waters.
You know what I mean, Sir — to the east of the line of demarcation.
Perhaps somebody will show the line of demarcation on that map.
Mr. Justice Harlan. — We can see that.
(Mr. Tupper here indicated on the map the line of demarcation.)
Sir EiCHARD Webster. — At page 93 of the United States Counter
Case, it is stated in this way:
In consequence of the zealous and efficient efforts of the naval vessels charged
with the protection of the seal herd and the enforcement of the modus virendi, few
sealing vessels entered the eastern half of Behring Sea in 1892, and those waters
were practically free from open-sna hunters. If the cause of the mortality of 1891
among the pups was any of those advanced by the Report, it is a remarkable and,
for the opinion of the Commissioners, an unfortunate circumstance that with the
decrease of sealing in Behring Sea dead pup-seals have decreased likewise.
You will not fail to note the fact that they argue that the alleged
decrease of dead pui)S in 1892 shows that the view taken on behalf of
Great Britain, that it could not have occurred from pelagic sealing, is
refuted. The actual certificate is given on page 156 of the first Volume
ORAL ARGUMENT OF SIR RICHARD WEBSTER, Q. C. M. P. 163
of the Appendix to the British Counter Case, to which I am about to
refer. It is by Captain Parr, who is the cliief ofticer in charge of tlie
watching fleet:
With reference to the possibility of any other sealiug-schooners having been
talcing seals in the neighborhood of the Pribilof Islands besides those cajitured, I
have heard it stated that one vessel claimed to have done so to the extent of some
100 skins, but I think even that is donbtful. If the total number of seals killed in
Behring Sea by sealiug-schooners is taken at 500, I should say that it would largely
exceed the mark.
I have etc. (Signed) A. A. C. Pauk.
Therefore we have got this common ground, that pelagic sealing in
the eastern waters of Behring Sea was practically uou-existent iu the
year 1892.
Let me call attention, Sir, if you please to the actual observations
]nade by Mr. Macoun in the year 1892 upon the island, corroborated,
as I shall show you presently, by Mr. Stanley Brown's aftidavit. I
shall read from both the United States testimony as well as from Mr.
Macoun's report. I now read from page 115 of the flrst volume of the
Appendix to the British Counter Case:
During the months of July and August a great many females were watched as they
came from the water, and although in a few cases they were seen to go to the extreme
back of the occupied rookery-ground, none were seen to go beyond it.
(&) Many pups lose their lives when stampedes occur, and many others when bulls
dash among the breeding females and their young to prevent the escape of a female
from the harem.
The scattered dead pups that are to be seeu on all rookeries have been destroyed
in either of these ways.
(c) A few pups probably lose their lives in the surf, or by being dashed irjion rocks,
but the number must, under ordinary circumstances, be very small. As earJy as the
18th July, and on many occasions afterwards, pups were watched while in the water
close to the shore, and though they were often thrown with great force against the
rocks, no pup was ever seen to receive the slightest injury. These causes of death
to young seals were noted by me, but are obviously insuthcient to account for the
great mortality among the pups on Polavina and Tolstoi rookeries.
While standing beside the camera at Polavina rookerj^ on the 22nd July I counted
143 dead pups; they were of the same size as the living pups near them, and exhib-
ited no sign of having died of hunger, nor did it appear that they had been crushed to
death in a stampede, as those that could be seen were at or near the limit of the rookery-
ground. No estimate could be made of the number of dead pups that were lying on
this rookery as the seals lay so closely together on its southern and eastern slopes
that but a small part of the breeding-ground was visible. Professor Evermanu (a
naturalist on United States Fish Commission steamer "Albatross"), Avho was Avith
me at this time, and who counted 129 dead pups, thought, with me, that if so many
were to be seen at the outer edge of the rookery-ground, the whole number must be
very great, and about a month later (20th August) I had ample proof that this was
the case.
I pause. Sir, to note that the United States have printed Mr. Ever-
man's report of this very day, the 22nd of July; and he, at page 271
of the Counter Case of the United States, referring to this rookery,
exactly confirms what Mr. Macoun had said. He gives the number of
pups which he saw from that place as 129, the same number given by
Mr. Macoun.
I now come back to Mr. Macoun:
I revisited Polavina rookery on this date with a native, Neh-an Maudrigan. This
man speaks and understands English very well, and was at this time on his way to
North-east Point to take charge of the guard-house there. A great many dead jjups
were lying at the south end of the rookery, nearly or quite as many as were to be
seen on Tolstoi rookery. They were lying on a sandy slope between the water and
the rocky ledge that separates the lower from the higher parts of this rookerj'-
ground, and were rather more grouped together than at Tolstoi, from 10 to 100 lying
quite close together, with spaces from 5 to 10 yards square between the gi'oups.
There were individual dead pups scattered everywhere over the rookery as on all
others, but on that part of it referred to above the number was very great, and the
164 ORAL ARGUMENT OF SIR RICHARD WP^BSTER, Q. C. M. P.
ground on which they were lying was quite deserted by living seals. They extended
as far as could be seen along the rookery, but as only the front sloping to the south
could be seen, the number beyond the point to the northward could not be estimated.
It was at the south end of this rookery that the British Commissioners report hav-
ing seen a few hundred dead pups in 1891. Photographs taken the 5th August show
this ground with the breeding seals still upon it, but many dead pups may also be
seen. The native Neh-an Mandrigan was asked how he accounted for so many dead
pups; he replied tliat bethought they had been killed when the old bulls were fight-
ing; but a few minutes later said that he was mistaken, that their mothers must
have been killed at sea, and the pups have died for waut of food.
You will notice, Mr. Presideiitj tliat that is exactly the same answer
that was given in the year 1891, after consideration.
He at this time told me that he had never seen so many dead pups on any rookery
before. He had seen those on Tolstoi" rookery in 1891, but had not visited that place
in 1892.
Dead pups were first noticed by me on Tolstoi rookery the 19th August, though
photographs taken by Mr. Maynard on the 8th 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 4,000, but they lay so
closely together that it was impossilile to judge what proportion of the whole num-
ber was seen. I was told by tiie Treasury Agents on the island and have no reason
for disbelieving their statements, that when this rookery was carefully examined
late in 1891, as many or more dead pups were found among the rocks or other parts
of the rookery as were on the open space, and seen and specially remarked upon by
the British Commissiouers in 1891. This beiug so, it is reasonable to assume that
such would be the case again this year. The dead pups noticed by me were on the
same ground on which those seeu last year were lying, but were scattered over a
larger area, and in much greater numbers.
I accompanied the British Commissiouers when they inspected Tolstoi Rookery in
1891, and the date of my visit to that rookery this year coincided with their visit to
it last year. Depending upon my memory alone, I had no hesitation in deciding
that there was a greater number of dead pups at that place in August this year than
at the same da,te in 1891, and a comparison since my return from the islands of the
photographs taken during the two seasons proves that this is undoubtedly the case.
We have here, Mr. President, the photographs of the same place in
each of those two years, 1891 and 1892.
The pups wheu 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. Very few were noted
that were in a more advanced state of decomposition than those about them, and the
dozen or so that were seen were probably pups that had died at an earlier date, and
from some other cause than that to which this unusual mortality among the young
seals is to be attributed.
The photographs taken on the 8th August show that at that time there were sev-
eral groups of seals bauled-out on ground on which the dead pups lay, but on the
19th August it was almost entirely deserted by the older seals. This rookery was
revisited on the 21st August, and at this time an estimate was again made of the
number of dead pups. A large baud 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 tliat on this occasion a few
less than 3, 800 were counted. On the 23rd August I again visited Tolstoi rookery in
company with Assistant Treasury Agent Ainsworth, Mr. Maynard, the photographer,
and Antoue Melavedotf, who is the most iutelligeut native on St. Paul Island, and
has charge of all the boats and store-house belonging to the Company. This native
acted as boat-steerer at the time the British Commissioners visited Tolstoi rookery
in 1891, and that I might learn his opinion regarding the relative number of dead
pups for the two years 1891-1892, 1 asked him to accompany me on the occassion
referred to above. When asked whether there were as many seals in 1892 as in 1891
he replied: "More; more than I ever saw before". I, at the same time, asked Mr,
Maynard to pay particular attention to what was said, and he has since made an affi-
davit to the above effect, which is appended to this Report.
These dates, Mr. President, are very important, because they extend
practically over the same time, rather longer than in 1891, and corre-
spond for all practical purposes with it.
ORAL ARGUMENT OF SIR RICHARD WEBSTER, Q. C. M. P. 165
My last visit to Tolstoi Rookery was made on the llth September. No living' seals
were to be seen on that part of the rookery-gronnd on which the dead ])n]is were,
and it was now apparent that they extended further to the left than is shown in the
photographs taken of theni; that is to say, a part of the ground on which seals are
shown in these photographs had dead pups on it which at that time could not be
seen ; this would add several hundreds to my Ibrmer 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, and I would include with them all, or nearly all, that were lying on the beach.
These were doubtless thrown up by the sea, but there Is no evidence that they were
killed by the surf. The shore is sandy, and there had not been a heavy sea breaking
upon it for more than a month previous to the date the dead pups were lirst seen.
It seems possible that the mortality among these young pups was the result of an
epidemic that ran its course in a few days, and attacked only a small portion of the
young pups. That their deaths were not caused by starvation was very evident, as
they 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. It is usual fur young seals that
are hungry to congregate at the water's edge and there await the arrival of females
returning from the sea to the breeding-grounds. I have on many occasions noted
young pups whose continued cries were evidence that the little creatures were in
want of food, and invariably pups in this condition were the most persistent in their
endeavors to take milk from the breasts of cows as they landed, and would follow
them for as great a distance as their strength would perndt, returning slowly to the
water's edge when the cow was lost sight of. Had the dead pups seen on Tolstoi
and other rookeries died of starvation, they would without doubt have been found
in masses near the sea, not scattered over all parts of the breeding-ground, and were
it possible that they had been killed by the surf they would have been lying in
windrows, as was the case at South-west Bay, where on the 23rd August, 133 dead
pups were found lying among sea-weed at different distances from the water. Bare
spaces from 10 to 30 yards in width, on which no dead pups lay, separated these
windrows of sea-wee(i showing that the highwater mark had changed from day to
day. The pups at tins place were in all stages of decomposition; a few had died
within a day or two, while little remaiucd of others but their bones, with fragments
of skin attached. Pups are constantly swimming across South-west Bay from Upper
to Lower Zapadnie rookeries, and it is probable that these lying on the beach
represent nearly all that had been drowned, or had from any cause died in the water
in the immediate vicinity of this small bay, as the shore is steep and rocky on both
sides of it, and anything floating about is almost certain to be thrown up on this
sandy beach.
At North-east Point, on the 20th August, all the rookery ground visible from
Hutchinson Hill was carefully examined with a tield glass.
Hutcliiiison Hill is in the middle of that North-east Eookery, up at
the north end.
A few dead pups were to be seen here and there on all parts of the breeding-
grounds, and in one place, at no great distance from the water, but on higher ground
than could be reached by the sea, at least 500 were visible from Hutchinson Hill.
The ground on which they lay much resembled that on which dead pups were at
Tolstoi and Polaviua rookeries, but was not of nearly so great an extent. They lay
scattered about as at Tolstoi, not in groups as at Polavina. A careful examination
was made by me of all the rookeries on St. George Island, both before and after the
dead pups had been noted on St. Paul, but none were seen there with the exception
of a very few scattered ones, such as are to be seen on all rookeries.
Whites and natives on the islands were unanimous in saying that the mothers of
the pups found dead on the rookeries had been killed at sea, and that their young
had then starved. During the months of July, August and September I had frequent
opportunitiesof conversing with the officers of nearly all the ships stationed in Beh-
ring Sea, both those of the United States and of Great Britain, and all agreed that
itwas not possible for a schooner to have been in and out of Behring Sea in 1892
without being captured (see statement in Appendix (C) of Captain Parr, the Senior
British Naval Officer stationed at Behring Sea.) The cruizes of the various ships
were carefully arranged by Captains Parr and Evans, and so ])lanned that no part of
Behring Sea to which sealiug-vessels were likely to go was left unprotected. H. M. S.
"Melpomene" and "Daphne", and United States ships "Mohican" "Yorktowu,"
"Adams," "Ranger" and "Corwin", were engaged in this work. No skins worth
taking into account were found on the small vessels that were seized, and most of
those they had on board were doubtless taken outside Behring Sea, so that to what-
ever cause the excessive mortality among these young seals is to be attributed, sealing
at sea can have had nothing to do with it in 1892.
166 ORAL ARGUMENT OF SIR RICHARD WEBSTER, Q. C. M. P.
Without fully indorsing what Bryant says on this subject, he may be quoted. He
writes: " When the sun shines for two or tliree hours and the rocks become heated,
there are occasional deaths among the beachmasters and very young pups from sun-
stroke, the symptoms being a nervous Jerking of the limbs, followed by convulsions
and death. Fortunately the occurrences are rare, and it was only in 1874 that any
appreciable number were lost from this cause. That year young seals died about
the 1st August.
Were sunstroke suggested as the probable cause that led to the death of the pups
found on St. Paul Island in 1891 and 1892, the positions in which they were found
and the nature of the ground in which they lay would favor this theory. Were the
sun to shine for even a few hours upon the smooth hard grovmd of the rookeries, it
would become so hot that serious injury or death to the young seals might be the
consequence, as it is well known that even the old seals dislike and are seriously
affected by heat.
Special inquiry was made by me at the Commander Islands during the first week
in September as to whether young seals had been found dead in 1892 in larger
numbers than usual, and several of the oldest 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-grounds and yet there were
many schooners sailing from United States ports sealing in the vicinity of these
islands during the whole season, and in July and August a great many schooners
came from the Amerif^an coast and sealed in Asiatic Avaters; many thousand skins
were taken there, probably more than in any season on the American side of Behring
Sea, but no increased mortality was noticeable in the number of dead pups on the
rookeries. The skins of the dead pups that die on the Commander Islands are taken
oif by the natives and a small price is paid for them at the Company's store. The
men examined by me had been recently at the rookeries for the purpose of procuring
such skins and reported that they had got no more than usual, and the agent of the
Company corroborated their statements.
I remind you, Mr, President, just before I break off, that now you
liave got what Mr. Macoun had not, because it did not exist. We have
got now the report from the Russian Government that there had been
a large amount of pelagic sealing close in — so much so that wounded
seals and dead seals were picked up iu territorial waters, and were
washed ashore; and yet there is not a suggestion by anybody that
there had been a death of pups on the Commander Islands in 1892
from that cause.
Senator Morgan. — Sir Richard, I wish to ask you, please, does any
witness speak positively of the fact that the surf ever killed a pup
seal?
Sir Richard Webster. — Oh yes ; several.
Senator Morgan. — From personal observation?
Sir Richard Webster. — Elliott, Allen, Bryant — I think all the
authorities who studied seal life during the last twenty years, referred
to the fact of pup seals being killed by surf upon the beach, when they
are caught.
Senator Morgan. — I have heard that, but I have not yet heard any
statement from a witness who was able to say upon his own knowledge
that a pup seal was killed by the surf.
Sir Richard Webster. — I think I am right in saying that Elliott
spoke from his own knowledge, for he studied the subject intimately on
the islands for some years; but I will look, Senator. I believe there is
also evidence of it.
Senator Morgan. — I would like to know.
The President.— Sir Richard, I believe you suppose that this
extraordinary disease which carried off' a number of seals from this
place was the reason of this great mortality in 1891. Is there any infor-
mation about what that disease might be?
Sir Richard Webster. — No. It is very strange. In the first place,
it is purely local, which is in itself remarkable. When I come to deal
ORAL ARGUMENT OF SIR RICHARD WEBSTER, Q. C. M. P. 167
with the real cause of decrease of seal life in these islands, X slinll snji-
gest to you — I merely mention it now by way of anticipation — tliat it
is by no means impossible that the depreciation in the male life may
have had something to do with it; but I am not bound to take, nor do
I take, any burden of responsibility of afflrmative proof in regard to
this matter. It ought not to be put upon me. You will remember,
Sir, I read to you the paragraph of the United States Case, but a few
moments ago, in which they state that the depreciation of the death
of the pups in the year 1802 shows that the death of the pups in the
year 1891 was due to the pehigic sealing and they cite the fact of the
alleged less death in 1802 as showing that pelagic sealing was the cause
in 1891:
If tbe cause of the mortality of 1891 among the pups was any of those advanced
by the report.
That is by the C.ommisiouers' Eeport —
It is a remarkable, and for the opinion of the Commissioners, an unfortunate cir-
cumstance, that with the decrease of sealing in Behring Sea, dead pups have
decreased likewise.
I shall show you now presently, as soon as I come to it, from the
United States afftdavit, that even up to the beginning of August, the
date upon which Mr. Stanley Brown left, that even n\) to the beginning
of Auiiust he had noticed that there was an abnormal number of dead
pups there, more than there ought to be; and 1 shall show you that
Mr. Stanley Brown left and made his last examination at an earlier date
in August, whereas the examination with regard to the whole subject
had to be continued, and was continued by Mr. Macoun right through
up to the 11th of September, as I have shown j'Ou. I tliink it is
scarcely necessary to read it. I ought probably to have read to you Mr.
Maynard's affidavit, Mr. President, on page 150, to which Mr. Macoun
refers :
1. That during the latter part of the month of July, and for nearly the whole of
the month of August, I was employed in taking photographs on the Pribilof Islands.
2. That on the 23rd day of August, 1892, 1 visited Tolstoi rookery, on St. Paul Island,
in company with Lieutenant Ainsworth, AssistantTieasury Agent on St Paul Island,
Mr. Macoun, an Agent of the British Government, and An tone Melovedotf, chief boat-
man in the employ of the North American Commercial Company.
3. We walked to the part of Tolstoi Rookery on which dead pups were lying in
great numbers, and while we were all standing within a few yards of the limit of
the ground on which these dead pups were, Mr. Macoun asked Antone Melovedoff
whether he thought there were as many of them as there were last year, to which
he replied, "More; more than 1 ever saw before. I was asked by Mr. Macoun to
particularly note what was said, and did so."
I respectfully submit to this Tribunal that in the face of what I have
already read — I will show the corroboration when ihe court reassem-
bles— the argument put forward in the United States Case is turned
against themselves; because if the cause of the death in 1891 was as
they themselves say the pelagic sealing in the eastern side of Behring
Sea in that year, so, the cause stopping, the result should also cease,
I have shown you upon testimony which it cannot be suggested is tes-
timony otl.erwise than honest, of what was seen, that according to that
testimony, there was that same mortality in those particular places in
1S02. And again it passes the wit of man to suggest why it was more
abnormal because contined practically to Tolstoi and Zapadnie on St.
Panl and should not afl'ect the other rookeries.
The President. — You think it strange that it did not affect both
islands'?
168 ORAL ARGUMENT OF SIR RICHARD WEBSTER, Q. C. M. P.
Sir EiCHARD Webster. — Of course, if it is due to similar cfiiises.
I do iiotkuow, Mr. President, whether you Lave studied tiie subject of
epidemics. It is perfectly well known that epidemics will come back
to the same place and the same house. 1 speak of smallpox particu-
larly, which I have had to study very closely. It is well-known that
after an interval of 10 years the epidemic will come back to the same
place though there is no apparent reason for it, and though every
measure was taken to prevent its coming back to that place. It may
be due to atmosphere, it may be due to the damp or something else of
that kind. All I point out is this that two rookeries are picked out by
death in 1891, and the same two rookeries are picked out in 1892.
The President. — I beg to observe that when mortality befalls young
animals in general the most common feature is disease in the bowels,
and then of course excreta increases and is observable. I am rather
struck by the circumstance, which is not admitted on the other side,
that there are no excreta to be found on the island at all.
Sir KiCHARD Webster. — On the rookeries.
The President. — Yes; on the rookeries. Well, I suppose the young
ones, the pups, must have excreta and especially in times of disease.
Sir EiCHARD Webster. — It is not of the same character as that of
the grown up animals. It naturally would not be the same kind, as
they have been living only upon milk. I again point out to you, Sir,
with great deference — I am only agreeing with what you say — that of
course we know very little indeed about the diseases of seals. Indeed
I do not know that we know anything about them.
Lord Hannen. — You refer to your knowledge of animals. I think I
am right in supposing that you have knowledge of the grouse. How is
it as to disease of the grouse?
Sir Richard Webster. — It comes back, to the very same places.
Lord Hannen. — I wanted to know, as far as you could tell. And it
is local ?
Sir EiCHARD Webster. — Local in the most extraordinary way, par-
ticularly on the moors in Scotland. Side by side one moor will have no
disease upon it and the other will be visited at every periodic occurrence
of the disease.
As far as I know, Mr. President — I wish to give the Tribunal infor-
mation— I believe it is impossible to predict beforehand until the thing
has been really examined what is the cause that brings back disease to
particular places; but my task today is to show that in this particular
respect the argument of the United States is not supported by the facts
which are brought before the Tribunal.
Senator Morgan. — Has anybody said that these seals have diseases of
any kind?
Sir Richard Webster. — No; but I do not think anybody will say
they are free from disease. I know no fish even that is free from disease.
Senator Morgan. — I supposed some of these experts or dissectors
would have observed the disease.
Sir Richard Webster. — If they knew anything about it; but I do
not think they suggest themselves that they do know very much about
it. We have it, of course, in some cases the bodies are emaciated and
in others we have it stated distinctly that they were not. They were
apparently in ordinary condition of health. That is spoken of ijy Mr.
Macoun. The Tribunal will, I hope, not put a greater burden upon me
than I can bear. I am not here to discuss the matter from a scientific
point of view. I am here in order that the Tribunal may not be misled
by inferences incorrectly drawn and by allegations as to facts not
justified by the Evidence before the Couit.
ORAL ARGUMENT OF SIR RICHARD WEBSTER, Q. C. M. P. 169
(The Tribunal here adjourned for a short time.)
Sir EiCHARD Webster.— Mr. President, in leavings the British evi-
denee upon this question of the dead seals, I think it right to say that,
while it is perfectly open to the United States Counsel to criticize any
opinions put forward by Mr. Macoun or the British Commissioners, I
think it only fair to say, in justice to the evidence I have been reading
from Mr. Macoun's Eeport, in every case that I have read it is not a
case of mere assertion, but the reasons are given whereby the Tribunal
themselves can criticise and form a judgment whether his opinion has
been formed on sufticient data.
Now, I come to 1892; and I read first Mr. Stanley Brown's affidavit,
at page 388 of the United States Counter Case. It is important to
remember that Mr. Stanley Brown left on the 14th of August, and that
in so far his evidence is not so complete as Mr. Macoun's. At the
beginning of the deposition, you will observe that he was between June
the 9th and August the 14th upon the Islands of St. Paul and St.
George. I do not pause to consider which part of the lime he was on
St. Paul and which on St. George; I will take it he had practically a
continuous opportunity of observing between those dates. Now, turn-
ing to page 388, this is what he says:
Dead pups were as conspicuous by tlieir iu frequency in 1892 as by their numerons-
ness in 1891. In no instance was there to be noted an unusual number of dead pups
except on the breeding grounds of Tolstoi.
Til at is the same rookery as that which he had spoken of with
reference to the prevalence in 1891.
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.
I pause again to note that they must be confined to Mr. Stanley
Brown's observations before the 14th of August, and entirely inde-
pendent of subsequent observations taken after the 14th of August
and in September.
Any surreptitious killing of the mothers cannot be charged with it, for such kill-
ing either there or anywhere else on the island would have become the gossip of the
village and readily detected by the attempt to dispose of the skins. Disease or epi-
demics are not known among the seals; and I have never seen cows dead from sick-
ness upon the islands. There are no hauling grounds so close to the breeding areas
that the driving of the young males could cause consternation among the females
during the breeiiing season. Stampedes or disturbances cannot account for it, for
not only are the breeding grounds iu this particular case of Tolstoi one-fourth of a
mile away from the hauling grounds, namely, at middle Hill (the nearest point to
that breeding ground from which seals were driven in 1891 and 1892), but it would
be practically impossible to stampede this breeding ground by any disturbing cause
save of such magnitude as to be the subject of common knowledge on the islands,
and I know that no cause for such a commotion occurred.
Now if you will turn to the top of page 389 — perhaps the learned
Senator will let me call his attention to this. Mr. Stanley Brown
seems to me to give a reason, and we will attempt to consider it,
though it seems to me, with deference to be an insufficient one.
The true explanation of the deaths upon Tolstoi this year is not readily found, and
must be sought in local causes other than those indicated above, and 1 am confident
that to none of those causes can be justly attributed tlie dead pups of 1891 and 1892.
The following explanation based upon my acquaintance with the facts is offered in
a tentatious way: a glance at the map will show that the location and topographic
character of this rookery have no counterpart elsewhere on the island. The rookeries
upon which death are infrequent are those which are narrow, and upon the rear of
which are precipitous bluffs that prevent the wandering of the pups backward.
The larger part of Tolstoi, as will be seen from the map, extends far back, and has
great lateral dimensions. Much of it is composed of drifting sands, and it has
rather a steep inclination down to the sea. The shore is an open one, and the surf.
170 ORAL ARGUMENT OF SIR RICHARD WEBSTER, Q. C. M. P.
either gentle or violent, is almost constantly present. As the time for learning to
swim approaches the pups lind it easy to conic down the incline. Tliey Congregate
in large nnmlicrs npon the sandy shore, and hegin their swimming lessons. Tliis is
at a period when they are still immature and not very stronii'. The huffetingof the
■waves exhansts them, and, coming asliorc, tliey either wander off, or stru.ngliiig a
certain distance np tlie incline, made more diliicult of ascent Ijy the loose sand of
which it is composed, lie down to rest and sleep, and are overlooked by their motliers
returning from the sea. I have seen mother seals go np the entire incline seeking
their piijis.
Now wlietlier this be rijilit or wrongs, it is utterly inconsistent with
the exi)]anation that the mothers were killed at sea, because the
pelagic sealers would not know whether the mothers had come, from a
rookery where the rocks were blufl' and the physical conditions were
such that the pup Ayould be found by its mother, or whether from a
rookery under different conditions, and, therefore, Mr. Stanley Brown's
ex])]anation as to these conditions in 1891 and 1892, which he gives in
1892, is inconsistent with the death of the mother seal at sea.
I have seen mother seals go np the entire incline seeking their pups. I find noth-
ing in tlie histoi'y of dead pups npon the islands which does not confirm my belief
that the great mortality of the season of 1891 was due to pelagic sealing in Behring
Sea. Had it not been so there is no reason Avhy the deaths in 1892 should not have
been as widely distributed and ;is great as they were the previous year.
Mr. President, if Mr. Stanley Brown had had occasion to stay, and
had stayed till the middle or the end of September, and had seen what
Mr. Macoun saw, I am satisfied with his honesty he would have stated
the facts in accordance with what Mr. Macoun saw. I call attention
to this that knowing he had some thing abnormal to explain in con-
nection with 1892, he exi)lains it upon grounds connected with the
physical position of the rookeries — grounds which have no connection
at all with pelagic sealing.
Tlie only other affidavit is Colonel Murray's to be found at page 378,
but most unfortunately it is of no value to the Tribunal as it gives no
date at all. He does not say when he examined the rookeries, and it is
impossible to form any conclusion as to the time he is speaking of when
the large numbers occurred. He says on page 378:
I went over the rookeries carefully, looking for dead pups. The largest number
on any rookery occurred on Tolstoi; but here as to the rookeries generally, but few
of them were to be seen as com]iared with last year. This was the first time in my
four seasons' residence on the Islands that the number of dead pups was not more
there than could be accounted for by natural causes.
Therefore he does not agree with Mr. Stanley Brown, who says he
saw more dead pups than was normal — more dead pups than would be
accounted for by natural causes, and gives us no evidence at all as to
the dates when he examined the rookeries. I do not want to occupy time
by taking upon myself a burthen that does not rest upon me; but the
learned Senator was good enough to ask me if I had any suggestion
to make in regard to this matter, and I think perhaiis that the killer
whales ought not to be put out of sight altogether, and I will tell the
Court why I think they ought not to be put out of consideration. It
may be that the character of the beach in those localities might make
the seals more liable to attack from killer whales at that place than
others, and certain numbers of motliers might be killed in the water
while bathing off the rocks. It used to be supposed that the killer
whale never came there till September; but if the Tribunal will turn
to page 311 of Mr. Elliott's last Report, tliere will be found a number
of instances of killer whales coming much earlier in the year, and no
doubt our knowledge on this matter is being extended.
ORAL ARGUMENT OF SIR RICHARD WEBSTER, Q. C. M. P. 171
In 1882 tliey were there on tlie 9th of May, in 1886 they were there
on the 5th May, in 1888 they were there on the first of July, and it was
so important that Captain Lavender, one of the Agents of tlie United
States wrote to IMr. Elliott on the subject of the killer whales in these
terms on page 312. He says :
That lie is now stationed on St. George Island as Treasury Agent and not having
been long enough on the island to be a competent judge as to the number of seals
destroyed annually by these monsters, he has asked the opinion of gentlemen who
have spent everj^ season for the last ten years here and the answers to all my
inquiries have been that this species of whale must be destroyed or tlie seiil rookeries
will be something of the past in a short time; they also informed me, that during
the month of October when the pups first take to the water they are killed by the
thousand and that the water along the shore of the rookeries is red with the blood
of young seals which fall easy victims to these monsters, having no fear of them. . .
He closes with the following sensible recommendation:
The next Congress should make an appropriation sufticient to furnish two whale
boats and crews with all the modern improvements for the killing of whales and to
station one boat and crew on each island during the ensuing year with orders to
patrol the islands daily if possible, and destroy this whale wlierever an o]iportunity
is afforded. These boats should be in charge of experienced whalemen Irom some
part of the New England states where this whale and other similar species exist in
large numbers, there would be no trouble in ol>taiuiug men who were well versed in
this kind of whaling, and it is my opinion at the end of the year it would be found
that killers were very scarce and would not come near the shore while their aj^xietite
for seal and seal-pups would be changed so mucii, tliat cod tish and other similar
varieties Avonld be good enough for them. I shall endeavour to write more fully on
this subject in the near future when I have had a little more experience on the
islands as I consider it one of great importance.
That rather bears upon the question put by Lord Hannen very early
indeed to Mr. Carter, I think, whether any steps had been taken to
interfere with these killer whales. This was a recommendation by the
Treasury Agents suggesting that the authorities should in some way
interfere with killer whales and it also appears that they destroy many
more than they eat — that is to say they kill them, as many animals of
that kind do, from sheer ndscliief. The fact of the killer whale |H'eying
upon the seals in large numbers as mentioned in page (J2 of Mr. Elliott's
first report and at the Commissioners report, page 59, paragraph 334 :
Killer whales (Orca recfipinna) are among the more active enemies of the fur-seal.
Mr. D. Webster, who, because of his long experience on the Pribilof Islands, has
already been frequently quoted, states that these whales usually come to the islands
from the north early in September, and stay about them as long as the seals do.
They kill many seals, particularly pups, and wantonly kill, apparently in sport,
many more than they actually devour. Captain Lavender, in his Report for 1890,
mentions the occurrence of large schools of killer wliales in pursuit of young seals
about the islands on the 30th October in that year, and Lieutenant Maynard men-
tions a case in which a single killer whale was found to have fourteen yonng seals
in its stomach. The Aleuts at Ounalaska further stated that they have oiten seen
killer whales pursuing and catching fur-seals, not alone the young, but also the
adults.
And Mr. Bryant at page 407 says:
When the season arrives for the young seals to enter tlie water the animals are
seen near the islands creating great consternation among the seals both young and
old.
Senator Morgan. — Is not that an inducement for sending out excur-
sions to destroy killer whales, if the fur-seals are to be subject to another
enemy, hostes humani generis.
Sir Richard Webster. — I do not think that bears directly upon
my argument, and of course I must not criticise it. You are aware of
the view for which I have to contend and I have argued that I am not
representing the hostes humani generis.
172 ORAL AEGUMENT OF SIE RICHARD WEBSTER, Q. C. M. P.
Senator MoRaAN. — I speak of the duties of Congress wliicb Mr. Elliott
seems to think incumbent upon them.
Sir Richard Webster. — It was not Mr. Elliott, it was Oapt. Laven-
der, but it would not be becoming on me to comment upon what you have
said. I must not depart from my position but simply submit what I
think is fair on behalf of her Majesty's Government in this respect.
I pass now to another subject, and that is the body of testimony to
show a large number of these seals never go near the Islands at all.
More than once it has been put to me by a Member of the Tribunal, is
there not evidence that a seal must go on land at some period of the
yearinconne(;tion with its pellage? That led me most carefully, together
with those who assist me, to examine the whole of the literature again,
so far as it was possible to do so having regard to our other duties, and,
as far as we can discover, not only is there no evidence that every seal
must go to the land, but there is very strong evidence to show that a
large proportion of seals every year do not go to the land. It appears
to stand in this way; the bulls go to the land when they have the desire
and capacity to command a rookery. Many of the " holluschickie " go
to the land certainly from the time that they are three years' old possi-
bly younger and haul out; but there is no evidenc*j that every young
male goes to the land; and, as I have said, there is strong evidence the
other way. There is no evidence that the females go the laud at all till
they come to be delivered of their first pup. There is abnndant evi-
dence in the Appendix, Volume II, pages 33 and 34, of the British
Counter Case, — a very large body of testimony showing and pointing
indisputably to the fact that impregnation may take place at sea, and
there is no evidence whatever in this Case of any virgin cows, in the
sense of being cows of one or two years' old, being upon the Rookeries
or l)eing in connection with the males upon the Islands.
The evidence is really uncontradicted that every cow that comes to
the Islands, so far as it can be traced, is either going to have a pup or
has a pup upon the Island. I do not take the British testimony alone
at all, but the testimony upon both sides whether or not the virgin cow
who has not had a pup frequents inland waters, there is no evidence to
show and could be none except that a certain number of virgin cows have
been killed within the 8-mile distance and the 20-mile distance) and
still further out; but there is absolutely no evidence of the viigLri cows
going ashore.
In that connexion I would pass from that reference on page 33 of the
2nd volume of the Appendix to the Counter Case. The aflidArits should
be examined by anyone who wishes to see if the evidence is (rustworthy ;
and I only say this, that reading it for the purpose of seeing whether
they were speaking to. what they saw or what was merely surmise when
yon look at these affidavits there can be no doubt, if the men are telling
the truth, impregnation takes place at sea.
Lord Hannen. — There are 38 men who state they were eye-witnesses.
Sir Richard Webster. — And there are the natural matters men-
tioned which leave it beyond all doubt. Assuming we had not this
very strong fact, that no cow without a pup has ever been seen on these
rookeries from the time she was born, that is a very strong corrobora-
tion that the first instinct of the cow to go to the Island is to be deliv-
ered of her pup.
Now at page 139 of the first volume of the Appendix to the Counter
Case this matter is dealt with:
While on the Pribilof Islands in July and Angnst of 1892 I endeavored carefully to
note everything that might throw lighton the (luestion as to when the virgin females
first receive the males, and during that time did not see one female seal that was
ORAL ARGUMENT OF SIR RICHARD WEBSTER, Q, C. M. P. 173
not either still carrying her young, or whose size did not show that she was of suffi-
cient age to have already had a place on the breeding grounds. In other words, I
never saw a virgin tVniale u])ou the breeding islands. Every female of small size
that was seen moving about the rookeries or leaving the water was watclied, and
was without exception found either to go at once to some harem where she was
plainly at home, or by her manner it was evident that she had young somewhere on
the rookery. Very often, too, if watched until they lay down, it could be seen that
their breasts were swollen as if full of milk, though this was by no means always
the case. Not one cow concerning which I was left in doubt was seen on any
rookery, and I feel certain that no virgin cow came ashore at these places.
Mr. J. Stanley Brown, who had been on the islands for some weeks before I reached
them, told me (8th July).
Will the Tribunal lemember the United States Case is, and our Case
is that the cows have practically all, though uot absolutely all come by
the end of Juue — the 20th June is the date nearest fixed.
Mr. J. Stanley Brown, who had hcen on the islands for some weeks before I reached
them, told me '(8th July) that he had been carefully watching a number of harems
as they grew, and was certain that not one virgin cow had yet come ashore. He told
me at "this time that he was quite sure that these young females did not haul out with
the •'holluschickie", but spent the early part of the season in the water in front of
the breeding-grounds and came out on them later on and were then served either by
the old bulls or by youuger ones near the water.
This explanation can hardly, however, be the true one, as were the virgin cows
really in considerable numbers in front of the rookeries, they would be seen there at
all times; but often, when the day was cold and cloudy, hardly a seal was to be seen
in the water neir the islands though at other times it was black with them. Where
are the young females when few seals are seen in the water!
Were it true that the young females are not served until late in the season, they
would be either much later in bringing forth their youug than the older cows, or
they must carry their tirst young for a much shorter time than those of following
years, which is scarcely credible.
I do not think it will be suggested — we have heard of a great many
curious laws mentioned, but a sliorter period of gestation in the earlier
years will scarcely be suggested.
But two other solutions of the question seemed to be possible: one that females
do not come to the breeding islands, unless in very small numbers, until they arrive
there to give birth to their iirst youug; the other that these two or three-year-old
females haul out with the holluschickie, and are served by the older bachelors among
them. Ml". Brown in August appeared to come to the latter conclusion, and even
pointed out to me small seals among the holluschickie, which he asserted to be
females. Though asked by me to shoot one or two of these small seals (as females
had been shot by his orders a few days before at North-east Point for the purpose of
determining whether they had been feeding), he declined to do ,so. Had this been
done, these questions might at once have been decided.
Then at the bottom of the page is stated, and the authority of Mr.
Bryant is given, that the young three or four-year-old males met cows
in the water as they came from the rookeries ; and he refers to the virgin
females.
It seems then probable thst at best the greater portion of the virgin cows are first
served at sea. Bryant speaks of its being a common thing for young three and four
year old males to meet cows in the water as they come from the rookeries and there
perform the act of coition; and though these cows v/ere proi)ably ones that had
young ones on the rookeries many hunters and captains of sealing-schooners with
whom I conversed at Victoria and elsewhere assured me that they had often seen seals
copulating in the water and had shot both male and female wliile they were in the
act. The female in majority of cases was one that had not yet had a pup, though in
some instances they were barren cows with milk in their breast.
Then Mr. Stanley Biowu, at page 13 of the second Volume of the
Appendix to the United States Case, says:
The time of the arrival of the virgin cows is not easy to determine, but from my
observation my present coiulusion is that they arrive with the ^ows and for a while
spend their time in the water or on the land adjacent to the rookery margin.
1 74 ORAL ARGUMENT OF SIR RICHARD WEBSTER, Q. C. M. P.
That is a present opinion formed by Mr. Stanley Brown after one year's
experience of tlie Islands. It obviously affords no aftirniative testimony
in favour of the idea; and, on page IG of the same book, he says:
Up to the 20th of July the breeding grounds present a compact, orderly arrange-
ment of harems, but under the combined iuHuence of the completiou of the serving
of the females and the wandering of the pups, disintegration begun at that date
rapidly progresses.
I wish I bad remembered that paragraph when I referred to the pups
leaving the Eookeries.
It is at this time that the virgin cows of 2 years of age, and not older than 3 mingle
more freely with the females and probably enter the maternal ranks, for the unsuc-
cessful males and maturer bachelors, no longer deterred by the old males, also freely
wander over the breeding grounds.
Well, of course the statement of what m^iy probably happen is not of
any great value for the purpose of forming a definite conclusion.
But now having called attention to tliat matter the fact of no virgin
cows going at all — I now desire to show that there is very strong evi-
dence that a large number of seals never go to the island at all.
Lo]"d Hannen. — I suppose you mean there is a large number of them
that do not go to the island in a particular year?
Sir EiCHARD Webster. — Exactly.
Lord Hannen. — They go at some time or another.
Sir KiCHARD Webster. — It is not a matter of necessity that every
seal goes to the island every year — that is what I meant, my Lord,
exactly.
Now the first matter whicb I will discuss in this connection, is that
which has more tlian once called forth questions from the Tribunal with
regard to what " Stagey" seals mean, and when they are found. Now
the "Stagey" period is perfectly well known — it is from the 1st of
August to the end of September; and in the 10th Census Report, at
page 40 — the Standard book of the United States upon Seal Life, prior
to the 1890 Report, it is mentioned in this way :
Mr. Phelps. — This is Elliott's report.
Sir Richard Webster. — Yes. Elliott's 10th Census Report, pub-
lished again in 1881.
About the 15th and 20th of every August, they have become.
That is speaking of the seals on the laud.
They have become perceptibly " stagey ", or, in other words, their hair is well under
way in shedding. All classes, with the exception of the pups, go through this proc-
ess at this time every year. The process requires about six weeks Itetween the first
dropping or falling out of the old overhair, and its full substitution bj' the new.
This takes place, as a rule, between August and September 28.
Now having fixed the date — I am going to fix it by other evidence as
well — I ask the Tribunal to understand that my case is that during that
period seals are continuously taken at sea, showing that it is not
required for the animals to be out on land during such a i^eriod; and,
further than that, upon the evidence, prior to the year 1892 there is no
suggestion of a "stagey" seal ever being found in the pelagic catch.
The United States in their Counter Case have endeavoured to give
some evidence with regard to the year 1892, to which I will call atten-
tion before I leave this branch of the subject; but my case is that the
"stagey" season is from the 1st of August to the end of September —
the 28th September; and that during that time seals are continuously
taken at sea in the non-stagey condition.
ORAL ARGUMENT OF SIR RICHARD WEBSTER, Q. C. M. P. 175
Kow Allen, at page 404 of the JMoiiograpli of North American Pinni-
peds, says:
A diversity of opinion exists on the i-sl:ind as to whether or not the fur is shed with
the overhair. I have j;iven close attention to the suUjcct and lind that all the evi-
dence is aojainst the opinion that tlie fur is shcil. The <;Teat quantity of overhair
annually shed by this innuonse number of animals cover the ground like dead leaves
in a forest. It is blown by the winds around the rocks, and becomes trodden into
the soil. 80 that when the earth is dry if a piece be taken and broken the whole nuiss
is found to be permeated with it like the hair in dried plaster. The difference
between the fibres of the overhair and the fur is plainly api)arent to the eye. I
have, however, gathered parcels of it at all times during the shedding season and
subj< cted it to microscopic examination, but have alwa,\s failed to detect the pres-
ence of fur in suflicieut quantity to warrant the belief that any of it is shed natur-
ally. The shedding of tbe overhair begins about the middle of August, and the
Seals are not fully clothed with the new coat until the end of September, and it
does not attain its full length before the end of October. The hrst indications of
she-dding are noticed around the eyes and fore llippers and in the wrinkles or folds
of the skins.
General Foster. — That is Bryant qnoted by Allen.
Sir Richard Webster. — I really was not snre, General Foster; I
am very much obliged for the correction.
General Foster. — It is very important.
Sir Kic'HARD Weester. — It makes no difference from the point of
view of anthority. It is quoted by Allen — I thiuh (xeneral Foster is
right. It is Bryant's language but it is qnoted in Allen's book. It is
quoted as an authority to which Allen has given his approval.
I am not quite sure that it has not been suggested by tlie Tribunal,
but it seems to me tliere may be not a natural solution of this matter.
It seems to me it is quite possible that the coat may change while the
seals are in the water more gradually without the seal actually becom-
ing " Stagey" or in that condition; because it is clear that there does
occur a difference in the appearance of the coat when the seal has been
out sometime upon the land.
Now the British Commissioners Report upon this contains some state-
ments which will be of assistance to the Tribunal; and I call attention,
first, to Paragraph 134, where they say:
With seals killed at sea, the skins are never found to be in a '' Stagey" condition
as has been ascertained by imiuiries specially made on this point, and there is. there-
fore, no naturally delinite close to the time of profitable killing, such as occur.s on
the islands. The markedly "stagey" character of the skins at a particular season
appears to be confined to those seals which have remained for a considerable time on
the land.
I also call attention to paragraph 281.
About the middle of August, most of the seals found upon the Pribiloff Islands
become what is known as "stagey", in consequence of the shedding of the hair and
under-fur. This condition apjiears to coiitiiuui, more or less deiinitely, for about six
weeks. The fact, elsewhere mentioned, that practically no " stagey" skins are ever
taken at sea, appears not only to sliow that the change in pelage is rendered deHnite
and well marked by prolonged resort to the land, but also that during this jieriod
the seal.': frequenting the islands do not go to any great distance from their shores.
I also call attention to paragraj^hs 031 and 632.
631. No loss occurs at sea from the taking of seals with "stagey" or unmerchant-
able skins. All those familiar with pelagic sealing who were questioned upon this
point agreed as to the fact that " stagey " skins are practically never got at sea, not
even in Behring Sea at the season at which the seals upon the islands are distinctly
"stagey". The skins taken in the earliest part of the sealing season, in Deceinlier
and January, are sometimes rather inferior, but they do not fall into the general
category of "stagey " skins.
632- It would tluis appear that the distinctly "stagey" or "shedding" condition
of the fur-st'al supervenes after a sojourn of some length on shore, and that such
sojourn results in a general change of pelage which does not occur in the same
176 ORAL ARGUMENT OF SIR RICHARD WEBSTER, Q. C. M. P.
marked way when the animals remain at sea. The same circumstances has further
some bearinjj on the question of the possible excursions of the seals I'rom the breed-
ing islands, and on the interchan<;eability of tlie seals remaining on or about the
islands with those of the general sea-surface, which thus seems to be exceptional,
during at least the later summer and early autumn, which is the "stagey" season
ashore.
Mr. President, the pelagic sealing lias extended right away through
the months of August and September, and up till the year 1892, no sug-
gestion has ever been made that skins iu a "stagey" condition form
part of the pelagic catch.
JSTow I wish to give you what is the United States evidence in sup-
port of the theory that " stagey" skins may be found at sea- Will the
members of the Tribunal be good enough to take tlie Counter Case of
the United States before them and turn, first, to page 112. There will
be found a trade report incorrectly called a catalogue. The niimber of
skins are too small to make this document of any use. They might be
raided skins.
I am not sure that this is ever actually referred to in the United
States Counter Case itself. If it is, I will supply the reference, but this
is the only evidence.
Title page of a London Catalogue of Fur-Seal skins. C. M. Lampson
AND Co.
Those you know, are the agents of the lessees.
London, Slat March, 1892.
At the Sales of Salted Fur-Seal Skins
THIS DAY
C. M. Lampson and Co.
Skins.
632. N. W. Coast, etc., part stagy (low) \ Sold the same as
472. Cape Horn S in January last.
Goad, Rigg and Co.
1, 519. N. W. Coast, part stagy (low) ) Sold the same as
1,969. Cape Good Hope \ in January last.
Kow at page 357 of the same book, is the evidence of Mr. Charles
J. Behlow. He has made a number of affidavits. I shall have to say
in connection with another matter — I will not pause to prove it now —
that Mr. Behlow's testimony is open to very serious criticism with
regard to his accuracy. This affidavit is made in i^^ovember 1892. He
says:
I hud that all fur-seals taken both in Behring Sea and on the islands therein, from
about the 10th of August until the end of October, are what is known to the trade
as stagey, meaning the animal is changing its coat, during which period its skin is
very inferior in quality; iu fact, almost unmerchantable.
Now on page 376 of the same volume, will be found the affidavit of
Mr. Walter E. Martin made in November 1892. These are made in
connection with the Counter Case. He says:
I have, as therein stated, handled large numbers of fur-seal skins of all kinds,
including Northwest Coast skins, or those of animals taken in the water, and I know
from personal experience that a certain number of " stagey" skins are always found
amongst them. Whether or no skins taken in the water are " stagey " will depend on
the month in which they are taken. The staginess does not begin until after the
middle of August, and as most of the skins secured before the seals enter Behring
Sea are taken previous to that date the percentage of "stagey" skins amongst this
class is insignificant. But among the skins taken iu Behring Sea after August 15th
will always be found a certain jiercent of stagey ones.
ORAL ARGUMENT OF SIR RICHARD WEBSTER, Q. C. M. P. 177
I call attention to a catalogue wliich will be exhibited now, of the
sales of skins for years; and n\} till 1892 no suggestion of any skins
being so described is to be found —
Lord Hannen. — I suppose, !Sir Richard, I must have missed some-
thing: what is the importance of this? If "stagey" seals are found
at sea, it proves that they do not need to land to become "stagey'*.
Sir KiCHARD Webster. — I suppose it is in order to meet the case
which the British Commissioners Ijelieved to be the true case — (and
our evidence would seem to support it) — that " stagey " seals are not
found to any great extent, my Lord, at sea. However, there is only
one other reference which seems to me to give the clue to the whole
thing. I am reading from the affidavit of JMr. Thomas F. Morgan, at
page 377 of the same volume, where he says :
Filth, grease, aud oil make skius come out of kencli flat, and sucli skins are
classed as low wlieu sold.
Now that shows that the classing of the ''low" skins, which was the
other name given for these so called "stagey" skins in 1892, is due to
filth, grease, and oil, when the skins come out of the kench (which I
believe is something to do with the mode of treatment); and therefore
the piece of evidence which has been supplied by the United States in
this regard we submit is of no substantial value to rebut the statement
that "stagey" skins are only found where the animals have been a
long time upon land.
Lord Hannen. — It would appear from the furriers' statement that
there is a difference between "low'' and "stagey".
Sir Richard Webster.— Well, I should have thought not.
Lord Hannen. — I should infer that from the way it is entered.
Some of them are called "stagey" and some "low".
Sir Richard Webster. — But in the catalogue, my Lord, which is
exhibited by the United States, page 412, I read the w^ord "low" to be
a synonym for "stagey". Perhaps you would not mind looking at it
again.
Lord Hannen. — Certainly; what is the page?
Sir Richard Webster.— 412. It is put in brackets. This is the
only evidence. We have to draw our own conclusions in regard to it.
The President. — "Low" is generally of inferior quality, I believe?
Sir Richard Webster.— So I understand it.
The President. — And stagey skins are always "low", though
"low" ones are not always " stagey".
Sir Richard Webster. — They mean by that use of the word
"stagey" that they are not in good condition. That is what I read
and understand that extract to be. I think it is not an unfair thing to
say, Mr. President, when this evidence is produced in the Counter
Case, and when there is prior to the period of the United States
Counter Case no evidence at all of stagey seal being found at sea dur-
ing that time, I think it will be some warrant for the argument I am
using.
Mr. Carter.— You observe the date is 1892.
Sir Richard Webster.— I so stated. I stated 1892.
Mr. Carter. — That was before the Counter Case was prepared.
Sir Richard Webster. — I beg my friend's pardon.
Mr. Foster.— It was the 31st of March, 1892.
Sir Richard Webster. — My friends must not misunderstand me.
I am not suggesting that the catalogue is not genuine, or anything of
that kind. They misunderstand me. My point is that desiring to get
B S, PT XIV 12
178 ORAL ARGUMENT OF SIR RICHARD WEBSTER, Q. C. M. P.
the best evidence tliey could to sni>port the view of stagey seals being
found at sea, when tliey are piei)ariiig their Counter Case, they iind
this catalogne, and put it in. My criticism is not that they are gnilty
of improper conduct, but that from the facts in regard to the matter,
there is warrant for my argument. They will have a chance to rebut
my argument when the times comes for them to reply.
My strong point is this, which I have mentioned already: that dur-
ing the whole time the seals are stagey on land, they are being taken
at sea in ordinary condition, so far as we can tell. I have had put
together an abstract which I will hand to my friends and to the Court,
taken from the aflidavits, of exactly the same character as that Mr.
Coudert used in reference to one part of his case. I think it was about
the percentage of females. This v>'ill save the court a good deal of
trouble in looking up references. All the references are from volume
II of the Ai)i)endix to the British Counter Case. Tliis bears, Mr.
President, ui)on both points. Perhaps I had better state it once more.
It bears upon the point that during the time seals are upon the island,
both previous to the stagey time and at the stagey time, they are found
at sea, large distances from the island under circumstances which
would indicate that they have no immediate connection with the island.
I will ask Mr. Macoun to indicate on the map, as I read, the various
places mentioned :
Seals not frequenting the Breeding Islands.
C. F. Dillon, p. 47. — In 1888 I cnme south from Behriiii;- Sea, about latitude 175 —
west, and caught seals there. This was in the latter part of August. In 1886, late
in August, we killed seals 30 or 40 miles south of 172nd Pass. Between Uuimak
Pass and Saanak Island, in 1887, I saw seals (]uite abundant in the latter part of
July. In 1889 we got seals about Kadiak, off and on, all summer. In 1890, late in
August, I killed a sleeping seal off the Shuma^in Islands, and saw others.
Charles J. Harris, p. .51. — In August 1890 I saw seals about 300 miles from
Kadiak, and in August, 1891 I saw seals about 250 miles from Kadiak. I have seen
seals as far south as Queen Charlotte Islands in August.
R. O. Lavender, p. .55. — Coming home from ISehring Sea this year I saw four
sleeping seals off Cape Flattery, the 21st July; one was shot. It was a barren
female.
Abraham Billabd, p.56.— Last year the '^ Beatrice" crossed Behring Sea from
east, starting from a point 35 miles north of St. Paul Island. I saw seals all the
way over to the Co])per Island grounds, and got two seals on the line between the
Russian and American sides of the sea.
W. T. Bragg, p. 57. — In August 1888 I saw sleeping seals in the water near the
Scott Islands, that is within 20 miles from the said islands, and have heard other
sealhunters nuike statements that they had also seen seals there.
Alfred R. Bissett, ]>. 60. — From my experience and observation I believe that
immense numbers of the seals that go u]> this coast never enter Behring Sea. I
know that all through tlie summer and early fall seals are scattered over the North
Pacific, north of Vancouver Island, aiul as far as the 165th meridian east.
William Dewitt, p. 62.— In 1891 the "Viva" crossed Behring Sea from about 20
miles north of Amuka Pass to the Copper Island grounds. I saw seals scattered all
the way over. This year the "Sea Lion" went over outside the Aleutian Islands.
I saw the seals in about the same way all the way over.
George French, pp. GO, 67.— Last 'year, 1891, when the " City of San Diego" was
crossing Behring Sea from Amutka Pass to Copper Island, we passed small bands
and bunches of seals travelling rapidly north-easterly; this took place on three
different days. The last lot we met were about 150 miles from Copi)er Island.
These seals were the same kind of seals we got at Copper Islands, and I am fully
satisfied they were crossing Behring Sea to the Pribilof Islands. This was between
the 5th and ■l2tli July, 1891.
Emile Ramlosk, p. 72. — Other years I have seen seals, — large seals, — in July out-
side of the 172ud Pass, and in August between llninuik Pass and the Saanak Islands.
Ernest Lokenz, p. 73. — Last year I got temale seals in milk off Queen Charlotte
Islands in July. — I know from my own experience that seals remain off the coast of
Vancouver Island all the year round, as well as off Queen Charlotte Islands and
Southern Alaska.
ORAL ARGUMENT OF SIR RICHARD WEBSTER, Q. C. M. P. 179
George McDonald, p. 77. — One year, — in the month of August, on the "Lily ", —
I got seals 200 miles south of the Shumagin Islands.
John Williams, p. 84. — About the 25th .June the " Brenda " left the vicinity of
Kadiak Island for the Copper Island sealing-grounds, at which we arrived on or
about the 24th July. Ou the voyage over, when ofl' the Rat Islands, about 90 miles
south, I saw numers of seals travelling towards these islands. — When the "Brcnda"
was about 40 miles south of Attu Island I saw seals; the weather was too rough to
hunt.
W. 0. Hughes, p. 101. — About the 23rd June last I left Tonki Bay for the Copper
Island grounds, at which I arrived on the 10th July. Between the 172nd Pass and
the western islands of the Aleutian group, from 30 to 60 miles ofi' south shore, I saw
scattering seals.
G. C. Gerow, p. 11. — I do not know cows go to sea to feed when they have young
on the islands, but far to the westward cows in milk are seldom taken; the seals there
are young females and males.
Geokge Webster, p. 120. — In travelling from the American to the Asiatic side of
Behring Sea from the middle of June to the middle of July I have seen seals all the
way across on tine days.
W. O. Shaftkr, p. 125. — In crossing from the American to the Asiatic coast in
July we saw seals more or less every day.
Lee J. Thiers, p. 127. — In coming back from the Japan coast this j^ear we left,
Skotan about the 24th June, and followed the "great circle" track for Victoria
where we arrived about the middle of July, and in the passage across I saw seals
every day.
Warren F. Upson, p. 127. — In crossing over this year to the south of the Aleu-
tian group, going to the Commander Islands, during the month of July, I noticed
seals more or less in the passage.
F. J. Crocker, p. 129. — In crossing from the American to the Russian side I have
noticed seals more or less every day during the passage; this would be about the'
month of August.
H. J. Lund, p. 131. — On the way home this year (from Asiatic side) during the
mouth of July, on the "great circle" track, we saw seals every day — some days as
many as twenty.
Note. — These notes are included under the heads " Intermingling of fur-seals in
all parts of the north Pacific," and " Occurrence of fur-seals south of the Aleutian
Islands during the summer mouths," (in vol. II B. C. C. App.) where many additional
references will be found. Only those in which the month is mentioned are included
in the above synopsis, though all referring to the crossing from American to Asiatic
side of Behring Sea might properly have been included.
The Miikab ludians at tlie bottom of this page 8, who as it happens,
speak to the seals about Cape Flattery, certainly give very important
testimony in this resjiect :
Many of the Makali Indians whose testimony appears in the United States Case
(Appendix II) state that the seals remain in the vicinity of Cape Flattery until July.
Among these the following may be mentioned as the most important :
Landis Callapa, p. 379. — Middle of July.
James Claplanuo, p. 382. — Middle of July.
Franck Davis, p. 383.— As late as July.
Ellabush, p. 385.— Middle of July.
Alfred Irving, p. 386. — Middle of July.
James Liguthouse, p. 390.— Middle of July.
OsLY, p. 391.— Last of June.
Wilson Parker, p. 392. — June and July.
Joky Tysum, p. 394.— Middle of July.
Watkins, p. 395. — Middle of July.
Charley White. — 10th July.
Wispoo. — In July nearly all the seals have disappeared.
Hish Tulla.— Not all gone until in July.
Thomas Zolnoks. — In July all are gone.
The above dates should more properly be taken as those at which seal-hunting is
discontinued by the deponents. As Charles Hayuks says, "We continue taking
theui (at Barclay Sound) until June, but there are seals about all summer. (British
Counter Case, Appendix, vol. II, p. 146.)
Mr. President, would you just conceive for a moment what the impor-
tance of this is? The case that the [Jnited States make, in jnstitica-
tion of their claim for a regulation giving them more than the property
180 ORAL ARGUMENT OF SIR RICHARD WEBSTER, Q. C. M. P.
claim would liave giveu them, must be, if it is worth any thiug at all,
in connection with some idea that every seal has got such connection
with the Pribilof Islands that they are entitled to have it giveu to the
United States. That is their case.
Now, take the end of June and the beginning of July. What is
going on then ? Breeding upon the islands. That is to say, the impreg-
nation, and birth of the young. If the case were that the seals must
be at those islands at that time, the Pacific Ocean would be empty of
seals 5 and the rest of Behring Sea would be empty of seals, during
these important months, when, according to the contention of the
United States, every seal must be upon the islands, it is the fact that
thousands of miles away from these Pribilof Islands, these seals are
found at this period of the year.
Then take the stagey season. Many of the dates which I read
referred to the time when, according to the hypothesis suggested for
our consideration, the seals must be upon land in connection with their
pelage. My respectful suggestion is that for the Court to act upon any
assumjition in the face of the testimony to which I have called atten-
tion would be to disregard the conclusions that ought to be drawn from
evidence, in the ordinary sense of the term, and in the absence of any
contradiction, if it can be contradicted, or in the absence of any sug-
gestions as to how it is that these seals are found at these great dis-
, tances from the islands at a time when, according to the United States
hypothesis, they ought to be upon the islands, you are to come to
the conclusion that every seal must go to the island at some time of the
year or another. There are only two causes suggested, Mr. President.
The one cause is the sexual instinct. The other cause is pelage. One
relates to a limited time, between what I may call the beginning of
June and the beginning of July, and the other relates to a limited
time from about the first of August to the 28th of September.
Senator Morgan. — You make no reference at all to the interruption
that might possibly occur in the journey up to the Pribilof Islands
from the seals being hunted and shot at and wounded and driven off
their course in consequence of those things.
Sir Richard Webster. — Of course, Mr. Senator Morgan, it is a
perfectly fair observation to be made, if there was any reasonable evi-
dence to suggest that the millions of seals which, according to the
United States Case, must be there in order even to approximate to
the quantity which they are able to kill every year, could all be so dis-
persed or diverted by their natural enemies.
Senator Morgan. — Not at all. It is very few, as I understand it,
that are dispersed and prevented from going to the islands.
Sir liiCHARD Webster. — I should not have thought — I am address-
ing the Tribunal — that it was a satisfactory criticism of the evidence
that I have read to refer to those seals as being few. There is a large
number of witnesses and a large number of different voyages during
June, July, August and September; and in the aggregate I should
have submitted with confidence that, looking to the length of the voy-
ages, and looking to the length of the distances, it means a very large
number of seals, and not a few.
But under any circumstances, frightening the mother could not pre-
vent the seal going to land for staginess. In fact, I should rather have
thought they would prefer to go to the land if they were frightened at
sea. Of course if the mother is killed, she will not go to the island.
She goes to the bottom of the sea or into the boat; but how killing the
mother can prevent another mother from going to the island, seems to
me difficult to understand.
ORAL ARGUMENT OF SIR RICHARD WEBSTER, Q. C. M. P. 181
Senator Morgan. — There must be, according- to the evidence in this
case, a large number of seals that are wounded, as the skins show it.
Sir Richard Webster. — Tlie skins tliat go to the islands. That
the skins show by the animals going to the islands and the shot marks
being found in them.
Senator Morgan. — It is not to be supposed that all of them arrive
in due season.
Sir Richard Webster. — Of course a romance or suggestion is
extremely valuable for the purpose of endeavoring to solve this; but
surely is it not an unfair argument iu reply to tlie suggestion to point
out that as far as the individual seal is concerned that seal is killed.
Senator Morgan. — It is not a romance that if there are seals wouuded
and killed at sea by pelagic hunters they do not reach the islands.
Sir Richard Webster. — Have I ever suggested the contrary oi
that, Sir? I am only entitled to have my argument considered, as I am
sure it will be considered by every member of this Tribunal, in the
sense in which I wish it to be understood. I have never said they were
not wounded. I have never said that seals wounded do not subse-
quently recover; and may be for the time being impeded in their course
going to the islands. But I submit upon the evidence to come to the
conclusion that this wholesale distribution of seals all across the coast
remaining down off Vancouver Island.
Lord Hannen. — All across the ocean.
Sir Richard Webster. — All across the ocean and remaining down
at Vancouver Island at a time when ex hypothesi they should have been
at the Pribilof Islands I should have thought on that hypothesis it was
difficult to shew it was due to pelagic sealing; and certainly in regard
to Behring Sea in the year 1892 it could not apply for in the year 1892
there were no pelagic sealers in Behring Sea.
Senator Morgan. — But does it not apply to those passes through
which the seals most go, and in which they are killed in large numbers f
Sir Richard Webster. — Then I would have thought it would have
driven the seals away from there. It does occur to me — I don't know
whether you think it is a remark worth anything at all — that a great
amount of driving on the islands might make the seals leave the
islands.
Senator Morgan. — Possibly so; yes.
Sir Richard Webster. — It seems to me an inference that may not
unfairly be drawn with reference to the evidence that was referred to
by the Attorney General to say that the number of seals has increased
at sea rather than diminished.
In this connection, Mr. President, to clear away all the subordinate
parts that I can, and to leave as little as possible to-morrow, might I
call attention to the state of matters in regard to barren seals'? The
argument of my learned friends disregards the element of barren seals
altogether. It is suggested to us by the Tribunal to-day — suggested
to me for my consideration — that I am to suppose that seals never
suffer from any diseases at all. I am afraid I cannot as an advocate
accept that conclusion. I know of no animal, no lish, no bird that does
not suffer in the ordinary course of nature from disease, and disease
which will at times nearly clear it oft"; and I should have thought it
very strong to suggest that seals, having regard to their life, were the
only animals known to the naturalists that were exempt from disease.
But 1 suppose it will not be suggested that every female seal that is
born is capable of bearing pups. But even assume it; what does it
mean? The hypothesis of the United States Commissioners, under-
182 ORAL ARGUMENT OF SIR RICHARD WEBSTER, Q. C. M. P.
stating — I think it is understating, as I shall show in another connec-
tion later on — the hypothesis of the United States Commissioners is
that there must be at least three million seals in a normal condition and
that of that three million seals the very smallest number of females
must be 1,500,00J. In fact upon their own figures the proper propor-
tion would be something like 000,000 males to about 2,400,000 females;
but I am not adopting, for the purpose of my illustration, views of the
proper condition of the seal herd, which on the evidence appear to be
not well founded. Therefore I am not straining my point by assuming
in my own favor what I may call the extravagant relations of male and
female, which the United States Commissioners have thought, and the
United States Case submits, to be sufficient and proper for this race.
I am taking a normal condition of things and assuming three million
of seals to be the total of the herd, an understatement as I should sug-
gest, by probably a million at least; but assuming three million it would
be 1,500,000 female seals beariug, that is to say having come to the
age of three and dying off at the age of 13 or 14 as the case may be.
They give for the extreme life something like from 10 to 14 years, and
it would be an average of somewhere about 12. That seems to me
to be somewhat of an overestimate.
Lord Hannbn. — Twelve years is an average of what? Pup bearing?
Sir Richard Webster. — For pup bearing; yes. If I take it to be
ten years — it really makes no difference, for the Tribunal can do the
figures themselves — I assume for the purpose of simplicity of calcula-
tion that 1,500,000 is the total number of female bearing seals neces-
sary for the herd which means that 150,000 seals pass into the barren
stage or die every single year.
Mr. Carter. — You do not mean that is their assumption. You seem
to impute it as being such.
Sir KiCHARD Webster. — It is really their assumption.
Mr. Carter. — I think not.
Sir Richard Webster. — I have not put it upon you. I will demon-
strate it to-morrow from the United States figures. I think the United
States Commissioners say in terms that the herd must be about three
millions, of which 1,500,000 would be bearing females.
Mr. Carter. — Not bearing females. You are quite in the wrong
about that.
Sir Richard Webster. — Indeed I am not; but I shall endeavor to
point it out to-morrow that I am correct. The assumption which it will
be found the United States Commissioners proceed upon is that the
total herd consists of bearing females about 1,500,000. I am much
obliged to you, Mr. Carter. I see now what you had in your mind. I
have not stated it quite correctly. I stated it from memory. I refer to
page 357, of the United States Case. I know now why I made the
mistake:
In ordei" to represent more clearly the enormons herd of seals which it may be
supposed at one time frequented the Pribilof Islands, nmiistiirbed by man, these
numbers may be multiplied so as to give a total of 3,000,000 seals, 750,000 being born
every year and the same number dying from natural causes. Of the 1,500,000
females about 800,000 would be breeding, the remainder mostly too young to breed,
a very small number being barren.
I am very much obliged to Mr. Carter for correcting me. I was quite
in error; but I had no intention of misrepresenting. The thing I had
in mind was the number it would be if that 3,000,000 was increased to
the proper amount; and I mistook the figures. I will take the figures as
stated: 800,000 lor breeding females, and the average life for breeding,
ORAL ARGUMENT OF SIR RICHARD WEBSTER, Q. C. M. P. 183
which T have stated. That wonhl therefore mean, assmnin^- them to live
an average of ten years, 80, 000 i)assiiig; into tlie barren stage or dying-,
granting even that among the rest there were no bairen females, and
that these are bearing every year. Those 80,000 at least are wholly
and entirely lost, so far as the sealing industry on the Islands is con-
cerned. It is not denied that ui)on the sealing islands they do not
intentionally kill females. They take great credit for it. Whether
they are right in taking credit or not is a matter which maybe worthy
of a little consideration.
But assuming, Mr. President, that a zone were established which
would prevent the females being killed who had pujjs dependent upon
them, and a close time were established, which would prevent the
females being killed tliat were gravid, I do not hesitate to put before
this Tribunal — and 1 ask their serious judgment upon it — that killing
which would take its fair share of fenmles, including these ban en
females, together with males, would be a better system than one
which rejected this altogether. I must not be drawn into the argu-
ment, which I want to keep entirely distinct, of what happens to this
race of seals, the enormous proportion that are killed by killer whales
and other animals, that disappear altogether. I must not be drawn
into the consideration of the fact that we are dealing only with the
surplus of this race. That is a matter which requires to be most care-
fiTlly examined, and I must keep it entirely distinct. lUit I ])oint out
that from the point of view of the duty of this Tribunal, namely to fiud
what is necessary for the preservation of seal liie, if they are able to
define a zone which will under ordinary circumstances prevent the
nursing female on whom the pup is dependent from being killed, and
such a close time as will prevent the gravid female from being killed,
they discharge their duty; from the point of view that those two oper-
ations are necessarily wasteful. Then I do not hesitate to a]>peal to
our experience of any other living animal, and to ask the Tribunal to
come to the conclusion that a system that takes account of the propor-
tion of barren females would be better than a system that disregarded
this altogether. Ux liypofhesi, unless the stagey theory be found against
me, the barren females do not necessarily go to the islands. Ux hypothesi
the female that has not attained to the sexual desire, or has lost it,
would not be tempted to go there in the month of June and July. If,
as I have ventured to demonstrate, the stagey season cannot be one
during which the seals are all on land, and are not found — except on
the island, and if the cause suggested by the learned Senator for the
seals being irregular in their times of arrival at the islands be not a
sufficient cause, it stands to reason that given the two conditions which
I have mentioned: — the protection of the nursing mother while the pup
is de])endent upon her, and protection of the gravid female, — it is to
the interest of the world that is supposed to be longing dying for the
blessing of sealskins, that the barren females should be caught and
captured instead of being wasted; and the system which has been
lauded with so much praise by my learned frieiuls disregards that
annual death or disa])pearance or that very large number of animals,
amounting in their calculation to between seventy and eighty thousand
females. —
Mr. Carter. — On whose calculation?
Sir Kic'KARD Webster. — On the calculation of the United States
Commissioners.
Mr. Carter. — Seventy or eighty thousand females?
184 ORAL ARGUMENT OF SIR RICHARD WEBSTER, Q. C. M. P.
Sir Richard Webster.— One tenth of 800,000. Mr. Carter did not
do me the kindness to follow me. I have pointed ont that on his own
calculation there are 800,000 breeding females. They are sn])i)osed to
continue from ten to fourteen years, bearing pups. Therefore from one-
tenth to one-fourteenth of that number must pass into the barren class
every year. If Mr. Carter will consider this in the silence of his own
chamber, he will find I have not made a mistake; and, if I liad, he
would be the first to point it ont when lie comes to consider tlie matter.
Mr. Carter. — I would like to understand the matter, but I confess
I do not understand how they can go into tlie barren class by death.
Lord Hannen. — They do not bear any longer.
Sir Richard Webster. — They do not bear any longer. They cease
to breed because they no longer have the sexual instinct, and do not
happen to bring forth the pup and eventually they die. Those tliat
have passed breeding are what I call tbe barren females; but really,
while admitting that Mr. Carter is my master, and that he can criticise
the way in which I am putting my arguments.
Mr. Carter.— Kot at all.
Sir Richard Webster. — I trust he will try to follow the substance.
The substance is that of the 800,000 breeding females every year, from
one-tenth to one-twelfth cease to be breeding females; and 1 do not
repeat myself, because the proposition seems to me, so stated, for the
reasons I have given, one which does deserve to be considered.
But now, Mr. President, I want to say one word with regard to a part
of the case which in my mind, in one aspect, presents, or would pre-
sent, more difficulties in the way of the Government of Great Britain,
and which I frankly admit at once that if the Tribunal are in a posi-
tion to deal with the whole question of injury to the seal race ought
to be dealt with. I mean the question of the killing of gravid females
as apart from the killing of nursing mothers. Here I come to the part
of the case which takes me outside Behring Sea and I endorse tlie argu-
ments presented by my learned leader which I was touching upon on
Monday afternoon when the Tribunal indicated that I was only going
to a certain extent over ground with which they were familiar.
I must say what I am about to say under reserve because I distinctly
contend that the area of Regulations is the same as the area of the
right but apart from that nobody who has looked into this case fairly
and desires to consider Regulations as apart from prohibition can have
any doubt I think what ought to be done. When attack has been so
unfairly made upon the British Commissioners let me remind the Tri-
bunal of this one incident in connection with their Report, that they
point out themselves the deletericms nature and harmful character of
pelagic sealing during the spring months when the gravid females are
passing up the coast, and be it right or be it wrong, be it sufficient or
be it insuificient they themselves acting with perfect impartiality sug-
gest a remedy which they submit to the judgment of those who have
to decide on this question whether to this Tribunal or any other
Tribunal.
The evidence shows, and I am not going in any way to minimize it
or cut it down, in so far as it may tell against me, unquestionably that
a considerable number of gravid females are killed during the coast-
catch taking it from our own point of view, I do not think it could be
jmt lower than 30 to 40 per cent, and I think my learned friends might
fairly say as a criticism that if in the coast-catch there were as many
females as males, and that most of those females other than the virgin
females that might be passing up would be in the gravid condition. I
ORAL ARGUMENT OF SIR RICHARD WEBSTER, Q. C. M. P. 185
state this, as much as 1 can against myself, whether it is 30 or 35 or 25
per cent, onght not to make any difference in tlie inind of the Tribunal,
I have recognized in ray argument that the theory of useful game-
laws is that such a wasteful method of killing would not be permitted,
and speaking to civilized men — men of the highest civilization and
cultivation of all nations, I shiink from ])utting any argument that
might not be thought to commend itself to their minds, and for the
purpose of my argument, though I think I could satisfy this Tribunal,
if it was at all important for me to follow it up, that in the evidence of
many of the witnesses who have spoken for the United States, there is
very great exaggeration, that the number of females gravid and supposed
to be gravid is a great deal exaggerated, yet I cannot shut my eyes to
the tact that taking the British evidence as it stands there is quite
sufticient proof of the killing of gravid females during those earlier
months to justify some regulation in that regard in order to prevent
even that percentage.
Now what does that mean? It means this; that you ought to avoid
the pelagic sealer being tempted to attack the herd at a time when it
is composed principally, or largely, or to any great extent, of gravid
females. We are not without statistics, and not without data enabling
us, to a very considerable extent, to assist the Tribunal in coming to a
conclusion in that respect. In the first place, the date at which the
whole herd arrive at the Pribilof Islands is pretty nearly fixed. I have
stated it more than once myself in the course of my argument to-day.
It may be taken roughly to be about the 20th of June, it is stated by
Mr. Stanley Brown, quoting from memory, to be the beginning of July,
when the Kookeries are about all filled up. The United States Com-
missioners themselves say they arrive early in June up to the end of
the month, and the harems are complete early in July. That will be
found at pages 325 and 320. Of course, in a matter of this kind, there
would be a difference of opinion; but it is not an unfair representation
to take that.
What do we know further? We know further that, during the latter
part of May and the beginning of June, the animals "bunch up", as it
is called, and travel rapidly from the Unimak Pass to the Pribilof
Islands; in other words, in the latter part of May, they are found in
Behriug Sea and not outside Behring Sea.
Mr. Justice Harlan. — Including the females'?
Sir EiCHAKD Webster. — Yes; I confine my attention to females.
It is not, for the purpose of this argument, necessary to consider the
killing of males; I consider the question of interfering with that kind
of killing which is said on all hands to be a kind of killing to be
restrained.
Bearing that, then, in view, the first date is, within what time, or up
to w^hat time should ])e]agic sealing be prohibited altogether? I pass
from zone, Mr. President, and deal now entirely with the question of
close time.
Now it was very properly if I may say so put by a member of the
Tribunal, whether or not, adliering to the date mentioned by the British
Commissioners, the 1st of July, coupled with the zone indicated by Sir
Charles liussell, we were not giving away a point which the pelagic
sealer or Great Britain on behalf of the pelagic sealer might fairly
make. My answer is it seems to me fairly not for this reason — that
you cannot always calculate on a particular day. We have the evidence
in the past, sometimes the seals are a few days later and sometimes a
few days earlier. Sometimes they have begun to arrive in the middle
186 ORAL ARGUMENT OF SIR RICHARD WEBSTER, Q. C. M. P.
of May, and at other times not till about the middle of Jnne and it
seemed to me, in connection with the zone, to say that no pelagic sealer
should go into Behring Sea at all till the 1st July, gves an ample
margin, for all the bunclied up herd of female seals desirous to get to
the Pribilof Island to get there in safety without any attack upon tlie
herd as it was travelling to the islands. There I am tempted to remind
you, Mr. President, of a fact called to our attention by JMr. Justice
Harlan — in my judgment not without significance, and that is that the
great majority of sealing vessels interfered with in the Behring Sea
were upon the migration route — you know the route I mean from the
Passes to the Islands.
It is not conclusive because it may be that harm might be done else-
where but at any rate it shows that in those years a number of those
vessels saw the migration route was a place where pelagic sealing
might be successfully carried on. Therefore, taking July the 1st as
the date up to which no pelagic sealing should be carried on in Behring
Sea, you secure the whole herd being in Behring Sea, as far as the
herd is concerned, and in addition to that, you leave the zone that was
spoken of as a further protected belt, to which I need not give a
further reference.
I«fow, I do not know if the observation as to commencing sealing at a
certain date was directed as much to inside Behring Sea as outside;
but fixed dates can be easily observed. Vessels can only enter through
certain Passes; they are not likely to go right the way round to the
West. It is easier to "police" the matter, to use my learned friend,
Sir Charles Eussell's phrase, if the date is fixed; because vessels must
keep logs and, of course, that would enable a check to be kept.
iSTow, I come to the part outside; and a question was put by a Mem-
ber of the Tribunal, What information can you give as to the 1st of
May being sufBcient for vessels clearing from those ports!
Let us take the ordinary state of things. I am assuming Eegula-
tions applying to sailing schooner. This Tribunal will be able to have
assistance in this matter practically from some of its Members. If a
schooner could make in the day of 24 honrs a course of from 100 to 120
miles, I mean a course on the Chart, she would do pretty well. Of
course, a schooner will sail 10 or 12 or 13 knots an hour, but that is
only the way that the wind will take her; and vshe might have strong
adverse winds. The distance is about 1,500 miles from Unimak to
Victoria; and, allowing a vessel to clear away by the 1st of May, if she
went post haste, you could not calculate her getting there before the
middle of May.
But that is not the course the vessels would take, because they do
not go out for the straight voyage. They go out for the purpose of
sealing, and the Commissioner's Beport shows this, that, as soon as
they come to the seals, they begin to seal and follow them u]), and it is
in order to let the female part of the herd, which is well ahead, get still
further ahead, and get into the Behring Sea by the end of May or the
beginning of June that that suggestion is made.
Lord Hannen. — Is it your suggestion that until the first May all
sealing should be prohibited everywhere.
Sir EiCHARD Webster. — Until the first May no sealing vessel
should clear from any of those ports.
Lord Hannen. — Sujjpose they do not clear from those ports, but
come from, I do not know where.
Sir SiciiARD Webster. — I meant as far as Caiiadian vessels and
United States vessels are concerned they should be licensed and clear
ORAL ARGUMENT OF SIR RICHARD WEBSTER, Q. C. M. P. 187
from those ports, and not be allowed to catcli seals anywhere before
the first May.
Lord Hannen. — Down to the Equator.
Sir EiCHARD Webster. — I was really dealing with the area in
question.
Lord Hannen. — And I was exaggerating, of course. I wanted to
know if you meant there was not to be any limit of area.
Sir KiCHARD Webster. — I do not want to pass an argument
strongly in my favor, but that bears strongly on the question of ambit
under Article VII, but vessels leaving for sealing in the gulf of Alaska
and Behring Sea, should not clear till the 1st of May, and not enter
Behring Sea until the 1st July. Those are two questions as to time
which we, desirous to assist this Court honestly and fairly, and not to
put a case to see how much we can get out of it, have considered to be
fair, and if an advocate may say so, have made a judicial suggestion
with reference to the matter in this regard.
Mr. Justice Harlan. — Your suggestion would leave schooners clear-
ing from British Columbia in America on the 1st May entirely free from
that time forward in the North Pacific and in the Aleutian i)asses.
Sir Eichard Webster. — I do not know. In the Aleutian passes
the evidence is universal that, except for an Indian in his canoe, no
pelagic sealing is possible in the Aleutian passes, and if you look at
the photograph of the Aleutian passes and see the sea lunning through
like a mill-race, you would see that any pelagic sealing in boats is an
impossibility. It has not been carried on in the Aleutian passes by
any pelagic sealers. Now 1 want to make this observation.
We were asked, why not stop sealing until a certain day instead of
sailing on a certain day, because from experience it has been found to
be extremely difficult effectively to guard against breaches of such
rules. You have to trust men of not the highest moral character,
though they have, of course a certain amount of self-respect and good
feeling; but to say that you may go out during the month of April,
providing that you do not seal, the vessel being equi])ped for sealing is
rather tempting under certain circumstances, especially if a good many
seals were about. And I do not think that you, Mr. Presiclent or any
member of the Tribunal, will think it is any worse to lay down or sug-
gest a Eegulation that will work effectually rather than one which can
be evaded.
It does seem to me to be a suggestion that the vessels should clear
from those ports not before the first of May would ensure for reasons
I will briefly submit to-morrow, the advance herd of female seals being
safely in Behring Sea before they can be attacked.
Sir John Thompson. — I understand your view to be that licenses
should be only procurable as regards-British subjects at certain ports.
I do not know if you have mentioned the United States ports.
Sir Eichard Webster. — No, I have not, but it was not because I
had over looked it. It was, because I did not think the Tribunal would
think I was departing from the lines laid down by the Attorney' Gen-
eral. I think the license system is most important, and also that they
should be obliged to keep logs.
Sir John Thompson. — But you have not mentioned the names
because it might involve a difference in the time of starting.
Sir Eichard Webster. — San Francisco and Port-Townsend in the
United States and Vancouver and Victoria in British Columbia. I am
not sufficiently expert to know if some other time should not be allowed
with reference to those places, but it is a question to be calculated.
Lord Hannen. — You must suggest something in reference to it.
188 ORAL ARGUMENT OF SIR RICHARD WEBSTER, Q. C. M. P.
Sir EicnARD Webster. — I am obliged to yon, my Lord. It has
been pointed out to me that there might be a difterenee between the
varions ports, San Francisco and Port-Townsend, and by to-morrow
morning- 1 will consider the distances.
Senator Morgan. — Have you any evidence to show that an Indian
with his canoe could fish successfully in the Aleutian passes, and a
boat not?
Sir EiCHARD Weester.— Strangely enough there is evidence of the
Indians from the shore catching some seals in one of the Aleutian
Passes but there is no instance that I know of a pelagic sealer sending
out a boat from his ship., I do not know, Senator, if among your other
acconiYdishments you are a sailor, but if so you would hardly think that
a schooner could remain with the water rushing through there, and pick
up a boat she had sent out in the morning, safely in the evening.
All I can say is I do not think, as far as I am concerned it is possi-
ble. I do not think there is any pelagic sealing possible there. By
entering Behring Sea 1 mean entering the Passes — I do not draw any
distinction — I am willing to agree that the mouth of the Passes, should
be considered the Behring Sea.
Marquis Venosta. — You think by the month of June the female seals
are practically in Behring Sea and there is no considerable number of
gravid females along the eastern shore of the Alaskan Peninsula, going
ont to Kadiak.
Sir EiGHARD Webster. — On the evidence, by the end of May, the
gravid seals are, are least as far as the western side of the Kadiak
Island, and they then will be going into Behring Sea while the Pelagic
sealer will be starting in the middle of May and he will not catch them
up, and will have no temptation to, because in so far as he would want
to carry on his business, he would not go in till the month of July.
He will therefore utilize May and June. If we think of what the prac-
tical inducements are, he will not rush off to the neighbourhood of the
Passes to take the chance of a few seals and have the herd of male seals
which in the evidence are streaming up this place during the last part
of May all through June and in July, practically speaking the temp-
tation will be to hunt off the coasts of British Columbia (during May
and June and to go and hunt in Behring Sea when they go in.
Mr. Justice Harlan. — Before you leave the map there is evidence in
the case showing in July and August over all the sea north of Aleutian
Islands and west of it are a great many seals.
If the vessels entered Behring Sea on the 1st July, of course during
July, and August they would be at liberty to pursue those.
Sir Richard Webster. — Except those within the zone.
Mr. Justice Harlan. — But the sea would be clear from the Aleutian
Islands to whatever zone you spoke of?
Sir KiCHARD Webster. — That is my submission. That is what I
wished and desired to bring to the Tribunal as a reasonable Regulation.
I apologise to the Tribunal for having kept them so late today.
The President. — The Tribunal will meet to morrow at 11 o'clock;
take the recess at one, and adjourn at half-past three.
[The Tribunal thereupon adjourned till Friday, the 16th of June, at
11 o'clock.]
FORTIETH DAY, JUNE i6^", 1893.
Sir RicnAED Webster. — Mr. President, I will endeavour, to the
utmost of my power, to compress the observations that I desire to make
in conclusion, though I am quite sure that the Tribunal would wish tliat
I should not spare anything that I really feel to be material. I will, as
far as possible, avoid anything except that which seems to me of first
class importance.
[ was dealing with the possible control of pelagic hunting outside
Behring Sea, always remembering, and I ask the Tribunal to remember,
that 1 tiike this under protest and contending, as I have to argued, that
the Pacific Ocean south of the Aleutian Chain is not to be the subject
of Eegulations by this Tribunal. My proposition was that by the end
of May the female seals are practically to the Avest of Kadiak Island
and going into Behring Sea. That was the statement that I made.
There is a mass of testimony about it; I have endeavoured, as fiir as I
can, only to pick out some of the most material passages for the pur-
pose of citation. I think they will be found best in the United States
Appendix, volume 2. I by no means suggest they are all exactly uni-
form, or that my statement is exhaustive; but these are, at any rate,
material on the point I am mentioning. Page 217, Anderson:
While engaged in Imnting during the past 18 years, I liave killed more or less fur-
seals. I usually first fixll in with fur-seals off Cooks' Inlet,
That is just to the east of Kadiak Islands.
about the Ist of June.
Then, page 215, Avery:
I start the season off Yakutat. The first seals are seen about April the Ist.
Then Foster, page 220 :
The seals appear off Cooks Inlet about the 1st of May. They appear off Unga,
about the 1st of June.
That is close by Unimak.
Then, page 222, Rohde:
I have resided in Alaska 6 years, and in all that time followed the calling of a
hunter. Beginning at Cooks Inlet in the Spring, we find seals off the Inlet in May,
travelling westward along the coast towards the JJehriug Sea.
Then Tolman, page 222:
The seals are taken off Kadiak Island about the Ist of June.
Then Andersen, page 223:
I have been along the coast from Prince Williams'. Sound to Senuak Islands. Seals
are first seen at Piiuce Williams Souud about the 1st of May.
Then Muller, page 222 :
I start the season off" Cooks Inlet. The first seals are seen about May
He does not say which part of May, and I should not have read that.
Then at ])age 224 there are a large number of Indians (some 7 or 8)
who make an affidavit and they say.
Fur-seals always appear in the vicinity of Cooks' Inlet early in the month of May,
and 14 more Indians at page 225 say the same thing.
189
190 ORAL ARGUMENT OF SIR RICHARD WEBSTER, Q. C. M. P.
Then Goben says:
I have observed that fur-seals first appear in the neighbonrhood of Cooks Inlet in
small schools about the middle of April comiug from the Southward and increasing
in number until the latter part of May travelling along the coast of the main land
from eastward to westward but never entering Cooks Inlet above Anchor point.
Theu Gregoroff, on page 234, is the same as Frank Korth page 235
says :
In the early part of the season the males are the most numerous a few females
being taken towards its close in the latter part of May.
That is at Prince William Sonncl.
And Kvvam says at the top of page 236 :
Seals first appear in Prince William Sound about 1st May, and were formerly quite
plentiful, while now they are becoming constantly scarcer. I do not know the
cause of tliis decrease. All the seals that I have seen killed "were females and the
majority of these were pregnant cows.
There are a large number of other affidavits, but I have cited suffi-
cient to show the cUxss of evidence on which I rely for the statement
that the pregnant females that formed part of the herd come after the
bulls. The United States Case and ours is this; they are both the
same, that they appear in this order, first the bulls, then the i^regnaut
cows, then the holluschickie and last year pups.
General Foster. — That is not our contention.
Sir EiCHARD Webster. — If it is not the contention it is at all
events the United States Commissioners' evidence on the point. If
there is another contention we shall no doubt hear it later on. The
important thing to fix Is when they get into Behring Sea and the
Islands, and though the evidence is extremely abundant I will l)e con-
tent with very few references. I will take one from the United States
Commissioners' own report, which is to be found at page 325 of the
United States Case. This is at the Islands.
The cows begin arriving early in June, and soon appear in large schools or droves,
iniineuse numbers taking their places on the rookeries each day between the middle
and end of the mouth, the precise dates varying with the weather. They assemble
about the old bulls in compact groups called harems The harems are complete
early in .luly, at which time the breeding rookeries attain their maximum size and
compactness.
And if you will turn to page 385 you will find a table — I mention
this now particularly in consequence of the interlocutory observation
of General Foster — the table which is appended by the United States
Commissioners to their report, for a series of years, and you will
observe the columns, and notice in every case, taking the Pribilolt
Islands, the bulls come first, then the cows, and then the pups. If you
would kindly look at the dates, 1872, May 13th bulls: cows June 3rd:
pups June l.Jth. In every case the order is that which I give — bulls
first; then cows; then pups.
Mr. Justice Harlan. — There is no table there for the bachelors.
Sir EiCHARD Webster. — As a matter of fact you will find that the
holluschickie are stated to come with the pui)s.
Mr. Justice Harlan. — No, at page 325 it says they begin to arrive
early in May.
Sir Richard Webster. — Well, if that is the point, of course it is
quite immaterial to the contention I am upon — absolutely immaterial,
if that was the correction intended by Mr. Foster.
General Foster. — That is the correction, that the bachelors come
before the females.
ORAL ARGUMENT OF SIR RICHARD WEBSTER, Q. C. M. P. 191
Sir EiCHARD Webster. — If that was what General Foster meant I
will take it from him, but it is not material for my purpose.
Now would you kindly look at the column of cows? This is what I
want to direct your attention to first, the landing- which takes place 180
or 190 miles from Unimak Pass is the 3rd June, the 8th June, May
24th, June 7th, June oth, May 25th, June 8th, June IGth, No record,
June 8th, No record. No record, and so on; June 10th, June Gth, and
June 11th. If you go over to St, George's Island, the next one in
the cows' column, you will se6 June 7th, June 9th, June 13th, June 8th,
June 9th, June 9th, June 9th, June Cth, June 7th, June 1st, June 8th,
May 31st and the 3rd June, Therefore, I point out that what I have
indicated is practically — I will not use the word admitted — I do not
suggest they would not say anything but what they believed to be a
matter of fact is practically the view taken by the United States Com-
missioners, namely, that the cows are landing on the Pribilof Islands
very often in the early part of June and sometimes at the end of May
which show^s they have passed Kadiak Island by the date I have men-
tioned, namely, the end of May.
Now in that connexion I ought perhaps to read a passage from Mr,
Merriam's Circular Letter, page 414 of the 1st volume of the United
States Appendix to their Case, paragraphs 3 and 5:
Returning the herds of females move northward along the coast of California,
Oregon, Washington, and British Columbia, in January, February, and March,
occurring at varying distances from shore. Following the Alaska coast northward
and westward they leave the North Pacific Ocean in June, traversing the passes in
the Aleutian chain, and proceed at once to the Pribilof Islands.
Then paragraph 5 :
The pregnant cows begin arriving early in June, and appear in large shoals or
droves, in)mense numberw taking their places on the rookeries each day bi'.tween
June lz!th and the end of the mouth, varying with the weather.
I have at any rate adduced before the Tribunal evidence in support of
the statement I made yesterday from sources that my learned friend
will not be able to impeach. I only need, that I may give the informa-
tion to the Court, give the references to paragraphs 037, 039, 048 and
651 of the British Commissioners' Report, because there will be found
evidence giving the authority for their statement of identically the
same character, namely, showing the entry of the seals into Behring
Sea, and their passing along the parts of the Islands at the same time.
Now, the last observation I have to make upon this part of the case
is as to whether the time that I suggest from the 1st of May is sufticient.
I was asked by a Member of the Court yesterday to make a suggestion
with regard to varying dates, if any, of leaving the four Ports men-
tioned. I propose to hand in on Tuesday the Regulations in writing;
and I will suggest then to the Tribunal dates getting the best informa-
tion that I can as to the actual distances and the difference of time that
ought to be applied. 1 do desire to say, with reference to the general
consideration, taking Victoria and Port Townsend, one a United States
and the other a British Port, they are about the same distance, 1,500
miles, direct in each Case, and 1,850 following the coast. The only sug-
gestion that could be made would be that the sealers would go straight
up to lie outside, (for they would not be allowed to go inside the Passes)
to avail themselves of the hunting in the last few^ days of May. Well,
from the best information I can obtain, and perhaps Members of the
Tribunal are quite competent to judge, under ordinary circumstances
the lowest average voyage, with ordinary winds, that you could allow
for a schooner to get over that 1,500 miles in ordinary circumstances
192 OKAL ARGUMENT OF SIR RICHARD WEBSTER, Q. C. M. P.
would be 15 days. Of course, if she bad strong gales always blowing
from the Southward and Eastw^ard, she might go quicker; but what
happens then "? That would mean 15 days' waste if she has to go straight
up and is not sealing on the way. The experience, as appears trom the
United States Commissioners' lvej)ort, is that the sealers come out when
they can along the coast and do harm, as 1 have admitted, in the months
of February, March and April in that coast catch. It is entirely for
the Tribunal. In making these suggestions we have not been guided
by any feeling of trying to get the best possible bargain that could be
suggested for the British Sealer. In making these suggestions we have
considered, that looking to the practice of sealing and the way in which
done, the result of such Regulation would be that the female herd would
be well into Behring Sea before they could be attacked by the pelagic
sealer, and you know, of course, that in Behring Sea they will be safe
until the 1st of July, and always safe within 30 miles of the Islands.
iSTow, the next suggestion my attention was asked to was, whether
there was not evidence of sealing in the passes of the Aleutian Islands.
There certainly is not beyond the instance I mentioned of a native who
resided near one of those passes; but I stated m^y answer, on informa-
tion from the British Commissioners' Report, was that the character of
the Passes was such that no pelagic sealing was really practicable in
them. My attention has been called to Captain Hooper's affidavit on
this point in the United States Counter Case, at page 232 :
Systematic observations of tlie movements of the seals iu tlie Pacific Ocean, near
the passes, at this season of the year is impracticable.
Lord Hannen. — What season is he speaking of?
Sir Richard Webster. — He is speaking of the season when the
seals are passing through, if you look a little further up.
General Poster. — It is dated the 30th of November.
Senator Morgan. — It is in the winter.
Sir Richard Webster. — I will show that it makes no difference to
the point I am upon. This is the description of Captain Hooper's.
Almost constant gales and thick weather prevail. In the influence of the strong
current though the passes the sea is very rough.
that would not depend on the season, the strong current.
And even were it possilde for a vessel to remain there, few, if auy, seals would be
seen. Under such circumstances the seals travel very fast and remain under water
except when forced to come to the surface to breathe, and then only the nose is pro-
truded ab(jve the water for a moment. In bad weather on the sealing grounds in the
Pacific and Behring Sea the seals disappear so entirely that the Indian seal hunters
(erroneously) believe they go to the bottom and remain there until the weather
becomes better.
My point is quite independent of the particular season in which that
was observed. It is clear from Captain Hooper's description of the
Passes, I am sure that nobody, without evidence at any rate, would
assume that sealing in such a place was practicable.
But Mr. Elliott in writing to Mr. Bayard, on the 3rd of December, I
am reading from the 50th Congress Reports, 2nd Session of 1889, Execu-
tive Document N" 100, page 95, — a part of the letter is cited in the third
Appendix but this is not, — he says:
Therefore, if you will glance at the Map of Alaska, you will observe that the con-
vergence and divergence of these watery paths of the fur-seal in Behring Sea to and
from the Seal Islands resembles the s]iread of the spokes of a half- wheel; the Aleu-
tian Chain forms the felloe, while the hub into which these spokes enter is the small
Pribilof Group. Thus, you can see that as these watery paths of the fur-seal con-
verge in Behring Sea, they in so doing rapidly and solidly mass together thousands
and tens of thousands of widely 'scattered animals as they travel at points 50 and
even 100 miles distant from the Rookeries of the Seal Islands.
ORAL ARGUMENT OF SIR RICHARD WEBSTER, Q. C. M. P. 193
Here is the locntion and tlie opportmiity of the pelagic sealer. Here is his chance
to lie at anchor over the shallow bed of iiehriug Sea 50 to 100 miles distant from the
Priliilof <_iroup where he has the best hohliug gronud known to saihtrs, and where
he can ride at any weather, safely swingino- to his cable, and in no danger from a
lee shore if it should slip. The immediate vicinity, however, of tho Aleutian Passes
is dangerous in the extreme to him. There he encounters terrible tide-rij)s, swift
currents and Curious gales formed through the entrances, with the very worst of
rough, rocky holding ground.
Therefore I do not think I have overstated tliis matter. This is in a
letter to Mr. Bayard by jMr. l]lliott. It describes that and there is no
evidence to the contrary in the whole of these pai)ers. The suggestion
that ])elagic sealing when the vessel must be anchored or lying to while
her boats go out could take x»hice in such passes will not conimeud itself
to those who have experience in nautical matters of that sort.
Senator Morgan. — How is it about the approaches to tliose passes.
Sir EiciiABD Webster. — I should have thought outside^ of the intlu-
ence of the currents there was no difference. It was part of the Behring
Sea on the one side and part of the south Pacific Ocean on the other.
There is no evidence about it. The whole point put to me as I under-
stand it was intercepting the seals en masse as they pass through the
Aleutian Island passes.
Now there are two subjects which my learned friend Mr. Robinson,
to whose assistance I have been iuunensely indebted, 'has been good
enough to say he will take under his charge. The one is the allegation
of waste in connection with pelagic sealing itself — waste by killing and
by loss of those killed and wounded — by supposed missing or wounding
a subject on whicli I say with all submission there has been on the part
of the United States very great exaggeration, and also including the
incident of green hunters upon which my learned friend Mr. Coudert
was so eloquent — that we insisted that there should be green hunters
on board the schooners whose function was to wound and not to capture
in order that they might be taught this trade. As a matter of fact no
such rule has ever i>revailed or been in force at any time in the sealing
vessels coming out from British ports and the other subjects to which
my learned friend Mr. Robinson will if necessary direct the attention
of the Tiibunal is the question of the sup])osed immunity from raids
which is claimed by tlie United States as being incident to their man-
agement of the Islands. There certainly is a body of testimony in these
papers to show that in so far as any claim of merit is to be put forward
on belialf of the United States on the ground that they have been pro-
fecting the seal species from raids, their guard has been anything but an
efiicient one. Those two subjects are not the limit of the subjects my
learned friend JMr. Robinson will refer to of course, but he has been
good enough to Siiy tliat he will take those under his chaige.
Now subject to handing in the written proi)Osed Regidations I have
finished the consideration of the Regulations upon the assumption that
the Islands are properly managed, but there remains a very im])ortant
])art of this case to which again andperhai)S I hope almost for the last
time, I have to ask the close attention of the Members of the Tribunal
and that is the question of the real cause of the decrease. You will
remember that by the Treaty you are directed by Article VII to find
out what Regulations are necessary for the proper ])rotection and preser-
vation of the fur-seal. I have already indicated that the scope of your
jnrisdictiou is in our submission in Behring Sea. Now I want to direct
your attention to the bearing and meaning of that word "necessary"
because upon the evidence now before the Tribunal, atsd I ask every
member of the Tribunal, to be good enough to give me his judgment iu
B s, PT XIV 13
194 ORAL ARGUMENT OF SIR RICHARD WEBSTER, Q. C. M. P.
chis matter, it cnn be demonstrated that any special failure and any
special decrease of tlie seal upon the Islands in the ye;us 18!X), 1891 and
1892, aud a fortiori earlier, is not due to pelagic sealing'. In order to
make out their case for the extraordinary demand which is made by the
United States repn^sentatives in their so called llegulations, which are
in fact no Kegulation at all, })ut an absolute and complete prohibition —
in order to support that demand they have suggested to you that the
decrease is due to pelagic sealing and not to action upon the Islands,
jVIy friend Mr, Coudert, Mr, President, pressed with the fact that there
was evidence to be dealt with ])rotested in the first instance against the
Tribunal considering the Islands at all and he pointed out tluit which
is true, that from the point of view of determining Ivegulatiojis upon
the Islands tbis Tribunal has no jurisdiction but he admitted that it
was most material with reference to the question how the actual decrease
was caused and he attributed it to pelagic sealing iu general terms, he
was asked by you whether if he was going to attribute the loss on the
Islands or the diminution of the seal race upon the islands to pelagic
sealing it was not necessary at any rate to attempt to put some pro-
portionate figure or some figure that would show that pelagic sealing
had been a sufficient cause to produce the result. Those figures have
not been forthcoming. I will show before I close to day they cannot be
forthcoming, and I will submit to the Tribunal what tlie real cause of
the diminution is. Now there are two causes suggested by the United
States Commissioners. You will find the cause 1 believe suggested at
page 349, of the report of the United States Commissioners that is the
United States case :
The life of the seal herd, then, depending as it unqnestionably does on the con-
stancy of the number of births, can be eudan.nered from two directions. First, from
the killing of fertile females; and, second, from tlie excessive killing of males, car-
ried to such an extent as to Y)revent the presence of the necessary number of virile
males on the breeding rookeries. To one or the other of these causes must be charged
the great cljange that lias come upon the rookeries within recent years, and the com-
mercial destruction with which the sealing industry is now seriously threatened.
We are firmly of the ojiiuion that an impartial examination of all the facts in the
case will show conclusively that the latter of the two possible causes has had no
appreciable part in the destructive work that has been accomplished.
I accept, Mr. President, the test put down by the United States Com-
missioners and I propose to examine as carefully as I can what is the
answer that should be suggested to the two questions which they have
put on page 319.
There are other passages to which I should give a passing reference
to make my citation conq^lete, though practically speaking, they are
only incidentally part of the same proposition. Take the bottom of
page 361,
While there is no douVit that in some instances excessive driving has been allowed,
that seals have been driven further than is actually necessary, and that projier care
has not been taken to eliminate the nou-killable seals as far as possible Ijefore the
driving is well under way those are matters that are so entirely under control that a
proper adjustment may be secured at once.
On j)age 362 :
The assumption that driving is seriously injurions to the reproductive powers of
the male is doubtless unfounded, being quite contrary to the declared belief of Cap-
tain Webster and other sealers of long experience. Against every assertion of this
kind it is only necessary to put the fact
please note these words, Mr. President
that there is no evidence of the lack of virility on the rookeries, but, on the contrary,
it is evident that there is a surplus of it at the ]>resent time, unless, indeed, it ia
assumed that harems are defeuded and held against the most ferocious attacks, often
•at a loss of much blood and muscle, by impotent seals.
ORAL ARGUMENT OF SIR RICHARD WEBSTER, Q. C. M. P. 195
Seal 111111110: on the Pribilof Islands has been and is conducted on the theory out-
lined above, that the male seals only sliould Ije l<illed, and of these a limited number
whose age falls within certain narrow limits, and thiit the female should be spared
at all hazards. The same princi])le controls the killing ou the Commander Islands
and, as far as Ave know, wherever and whenever the operation has been subjected to
intelligent control.
And on page 378, the bottom of the page,
In addition to the establishment of such regulations as would practically suppress
l)elagic sealing, it is strongly recommended that killing on the islands be subjected
to somewhat more strict and competent supervision. While it is not believed that
any serious consequences have resulted li-om lo;iseness in this respect, the interests
involved are so important, and in some i"esi)ects so complicated, that too much care
can not be given to the selection of the i)roper persons to be intrusted with their con-
servation. The practice of frequent changes in the government Jigents is deplorable.
They should be so familiar through association and observation with the appearance
of the various rookeries as to be the lirst to notice any changes which m;iy take place.
They will thus be enabled to determine annually the number of seals which may be
taken with safety and from what rookeries, whether the driving is properly conducted,
etc., and their whole elibrts shonld be directed to the preservation of the seal herd in
its normal condition.
Mr. President, all those observations I ask the Tribunal kindly to
bear in mind in following iny argument this morning on this particular
point.
Now I propose to demonstrate this, that through a long series of years
in the face of warnings brought by tlieir officials upon the islands to the
notice of those who could control this matter, an excessive number of
males has been killed, that the harems instead of diminishing in size,
per virile bull, as the Commissioners state, I will point out to you pres-
ently, you would, expect them to do, and they ought to do if it is true
that the loss is due to the killing of females, and not to the ])artial
destruction of virile males; that the harems have been increasing in
size and number per bull and it is upon the evidence ui^ou both sides;
that instead of there existing upon the island the active and energetic
contests of the virile males striving for the possession of the females,
there is abundant testimony that during the last four or five years the
bulls upon the Pribilof Islands have been in a deteriorating, depreci-
ated, and partially imi)otent condition.
Senator MoeCtAN. — Is there any testimony showing where these
su])erannuated bulls go after they lose their virility, Sir Kichardf
Sir Richard Webster. — Yes, Sir, there is abundant testimony they
lie behind the rookeries alone, with cows ])assing by them, and paying
not the vslightest attention to them, nor they to the cows, and instead
of fighting for the cows, as they would do when they were in a virile
and active condition, they lie taking no notice of the cows whatever.
Senator Morgan. — They do not come in with the holluschickie, or
the others.
Sir EiCHARD Webster. — ISTo.
Senator Morgan. — They do not haul out.
Sir Richard Webster. — Oh, yes, they haul out. I do not think
you can have quite followed my point.
Senator Morgan. — On the shore"?
Sir Richard Webster. — Behind the rookery grounds, away from
the place where the females are, they lie possibly dreaming of good
times in the past; possibly thinking, as a member of the United States
staff himself observed, of the good times they had been having in the
past, but ijaying no attention to the invitations of the females round
them.
Senator Morgan. — AVhat I want to get at is, do they herd together*?
196 ORAL ARGUMENT OF SIR RICHARD WEBSTER, Q C. M. P.
Sir Richard "Webster, — That depends on what yon mean.
Senator Morgan. — Do they go with the holhischickie.
Sir KiCHARD Webster. — No, I said not as distinctly as I could.
They do not go with the hoUuschickie; they come with the other bulls,
there practically being no lighting left, as I shall show presently, tliey
come out on the ground where they previously came out, and when the
cows come, instead of paying attention to them, they pay no attention
at all. Nobody will deny the materiality of these points. Tliese are
points that invite answer; and in selecting that which is important for
this Tribunal to consider, I have selected that which in my respectful
submission must be answered if our Case is going to be destroyed in
regard to this matter. The whole point of the contention on this i)oint
is this: the United States contend that pelagic sealing, and pelagic
sealing alone, is the cause of the diminution and deterioration; recog-
nizing that the other cause may be most potent, they deny iu their
argument that it exists. I am going to examine this position from two
points, first to show the decrease of seals and decrease of virile males
has existed markedly for a time antecedent to the period Avhen the
pelagic sealing could have any effect at all, according to the United
States contention; and, further, that the other result, namely of the
diuunution of harems around virile bulls in their full vigour has not
occurred, but, on the contrary, so far from it having occurred, the evi-
dence, when it is looked at and examined upon both sides, shows that
there has been an increase of cows per virile bull. As I do not wish to
refer again to break the sequence of my argument by reference to other
passages of the Commissioners' Eeport, I had better, perhaps, make
good my point that, in addition to the passage I read from page 349, iu
which they recognize that one of the causes may be the loss of sufficient
virile strength upon the rookeries, they also call attention to the impor-
tance of considering whether the harems have increased in size or not.
I call attention to page 344 of the United States Case:
A considerable decrease in the number of female seals upon the breeding rookeries
might not be noticed at first where total number is so laige, but iu two or three
years the effect of this loss would be felt in the class of kilhxble seals, and might
there be quite evident. Tlie loss in one class would thus follow surely but some
what behind the other in time. When the diuunution iu the number of killable
seals became notable, attention was at once drawn to the breeding rookeries, aud
it was found that they were being depleted. Thus Cai)tain Webster declared : " The
great destruction has'been among females. Formerly there would be, on an average,
thirty cows to one bull; now they will not average tifteen ",
1 shall show you presently, and I shall ask you to note it in passing,
that iu Cai)tain Webster's deposition iu support of the United States
he has not said a word as to the diminution of the size of the harems.
I will show you what the fiicts are from witnesses who do speak to it.
That statement was thought to be of so much importance it was
actually rei)eated by the United States Commissioners at page 350.
I begin at the bottom of page 349 which is the last refereuce I make,
to show the importance of these questions.
The polygamous habits of the fur-seal have already been described, as well as the
separation in hauling out of the hoUuschickie or younger males from the breeding
rookeries. The battles among the older males for places upon the breeding grounds
have long been described as one of the peculiar characteristics of the species. A
younger "male is obliged to win his right to a harem by conflict with his older
brethren already in possession. Many thousands of virile young males lie at a con-
siderable distance on the hauling grounds, ready to engage in a struggle for a place
in the ali'ections of the female seal should a favorable oi)portuuity occur.
That is when they get old enough.
Notwithstanding the depleted condition of the rookeries, these confl.icts and strug-
gles still go on. They went on last year and also in 1890.
ORAL ARGUMENT OF SIR RICHARD WEBSTER, Q. C. M. P. 197
I shall liave to call attention to the evidence about this.
This condition of things is utterly incompatible with any theory which assumes a
Hcarcity of virile males.
I quite agree.
The evidence of the most reliahle and credible observers goes to prove the same
thing. Mr. Redpath and daptaiu Webster have already been qnotetl as declaring
that it is among leninle seals that the great scarcity exists, but it is worth while here
to repeat the statement of the latter, that formerly there would be on an average
thirty cows to one bull: now they will not average fifteen.
I have already told the Tribunal what they will find when they come
to examine Mr. Webster's affidavit.
Now, Mr. President, 1 propose to argue this as closely as I can and
without unnecessary repetition to show you what the evidence is upon
this matter, and first I will deal with it a priori. I will ask you to take
before you the two diagrams of the United States Commissioners on
which t have put the numbers, so that you may compare them side by
side. They are the diagrams on pages 355 and 356 of the United States
Case, but by looking at them side by side and having them at once
before you, you will observe the contrast, and it is an extreme'y impor-
tant matter. I will show you presently, Mr. President, the basis upon
which these diagrams are comj^iled involves one or two very important
falhicies, but for the moment 1 merely argue upon the assumption that
they are correct. The first one which is taken from page 352, diagram
A, sliows the natural condition of a herd of 40,025 male seals; and I
tliink the Tribunal entirely understands it — if not I will explain it in
two sentences.
The number of seals is indicated by the height of the line from the
bottom running from 10,000, 5,000, 4,000, 3,000, and so on. It is stated
lierfectly correctly that the total area of the diagrams is proportionally
to the total number of seals in the herd. That is stated at page 353.
There is no dispute between the United States representatives and our-
selves as to what these diagrams show. The natural condition of things
shows 13,020 breeding bulls. The artificial state of things shows 1,080
breeding bulls. If you compare the yellow area in the second plan with
the yellow area in the other i)lan, the year sare the same 7 to 19 ; the lines
are proportionate and the breeding bolls are supplied from the young
bulls that are left and not killed or supposed not to be killed after 5
years — the stock for replenishing in the one case is 560 and in the other
case 3,500 — that is just about a seventh left and the breeding bulls
are 1,980 in one case and 13,620 in the other. I want to ask in the first
place u])on what theory such a reduction can be justified of taking
down the bulls which are provided by nature to replenish the stock to
about one-sixth of their number, because you will observe it is 1,980 on
what they call the jiroperly regulated killing in the new condition and
it is 13,020 on what they assume to be the normal conditions'?
Now, Mr. President, you put one or two questions the other day to
my learned friend. Sir Charles liussell,and I think also to myself which
require some notice. You asked if there was any evidence in the Case
of other polygamous animals whether the production of male and
fen)ale is about equal. I may say that there is no difference with
regard to seal life. Both parties are agreed, as far as we can tell, the
births of male and female are about equal. The United States people
say, when they used to kill pups in the autumn for food when they had
the opportunity of selection, they found, if they wanted to kill 2,000,
they had to examine 4,000, in other \\ ords, they generally had to exam-
198 ORAL ARGUMENT OF SIR RICHARD WEBSTER, Q. C. M. P.
ine double the number in order to select the males. I have investi-
gated that matter as well as I could from the sources at my disposal,
such as Bulibn and otlier books ou natural history, and, as lar as I can
fiud out in the case of polygamous animals, there is no instance of a
birth of a laiger number of females than males. As far as I can find
anything from the books of natural history, they appear to indicate,
notwithstanding that animals are polygamous that the birth rate is
equal. If you will only think of the cases which we know, such as
horses, sheep, deer, ])igs, and speaking of wild animals, the buffalo,
which is a very notorious instance and perfectly well known, all the
evidence points to the numbers being equal in those cases, and there-
fore the first observation that you have to make is this, that in reducing
the stock from which the virile males should be chosen, you at once
undertake a resjionsible duty, and you ought to be satisfied that the
data upon which you act are sufficient.
Kow, Mr. President, would you kindly observe at once here that the
data upon which tlje United States proceed is without any autliority in
one respect. They assume the bull to have its virile powers for no less
than 12 years. They assume the bull to be in a breeding condition from
its 7th year to its 19th year. There is absolutely no evidence upon it.
All the evidence which you can collect from those who have studied
this matter for years is that about 0 is the outside number of years that
you can assume that the bull is able pioperly to perform its virile func-
tions. I will read from Mr. Bryant who has made aflidavits for the
United States who was on the Islands up to 1877, but never there
afterwards, and who was and is unquestionably from past experience a
very considerable authority, cited, as Mr. Foster reminded me yester-
day, by Mr. Allen more than once in connexion with this matter in
fact, I am not sure that he did not write this chapter for Mr. Allen
in his book. At page 407 of Mr. Allen's monograph, Mr. Bryant says
this:
As I have l)efore stated, the large surplus of full-grown males existing in 1869
nearly all (lisaj)[)eared in aljont 6 yeart>, and when we consider the fact of their
severe labours during- the breeding season when they i>ass from 90 to 120 days with-
out fo(id, engaged in a constant struggle for their position and performing the most
exhaustive functions of physical life, 6 or 7 years would seem to be the limit of the
active period of their lives ?
Well, Mr. President, interesting information upon some of these mat-
ters of a general kind, if the Tribunal care to discuss it, or ]ny learned
friends desire to discuss it will be found in the British Commissioners'
supplemental Kej^ort and in the Appendix to the British Commission-
ers' supplemental Eeport. 1 am not now on any question of contested
matter at all or any matter which could be sui)posed to be misrepre-
sented by the British Commissioners.
On such questions as deer and very analagous cases, if you care to
examine the books experience will tell you tliat it is believed from two
to three years is the limit of the really virile i)owers of the stag; and
I want to call attention to the hypothesis upon which the United States
proceed, that every bull left is supposed to be fully competent, that
every bull left is supposed to retain its powers as long as it is alive, for
a period of 12 years, and that, as I have said, you are justified in reduc-
ing the stock of viiile bulls of 13, (!()() down to 1,'J80. Now nobody who
has ever studied this matter can be ignorant of what is the consequence
of natural selection. You are aware what ha])[)ens by artificial selec-
tion in stock-breeding, and in utilization of male power for the |>urpose
of improving the breed. The best bull is selected, or the best stallion,
ORAL ARGUMENT OF SIR RICHARD WEBSTER, Q. C. M. P. 199
or the best dog-, or tlie best boar, or the best ram, and for two or three
or four years, and sometimes for more under certain circumstances, they
exercise their functions; but you have here no means at all of selecting
the best bulls — not the slightest. The only method of s(^lection knowu
is that they light for the possession of the females. Under the circum-
stances what is called natural selection goes on. Now I might expand
this subject, without wasting time, to considerable length, but I will,
at any rate, be moderate in that regard, and will only state that which
I know will commend itself to the Tribunal. The extract to which I
will call attention is Darwin's "Origin of Species", at page 69, from the
6th edition i)ublished in 1886, and, in order that my learned friinds
may not be misled, 1 will tell them at once it is not in our Appendix.
It is under the head of "Sexual Selection":
luasnmcli as peculiarities often appear under domestication in one sex and become
hereditarily attached to that sex. so no doubt it will be under Nature. Thus it is ren-
dered possible tor the two sexes to be modilied through natural selection in relation
to dift'ercnt habits of life as is souietimes the case, or for oue sex to be modihed in
relation to the other sex, as commonly occurs. This leads me to say a few words on
what I have called "Sexual Selection". This form of selection depends not on a
struggle for existence in relation to other organic beings, or to external conditions,
but on a struggle between the individuals of oue sex, generally the males for the
possession of the other sex. The result is not death.
I pause to note, in that very interesting passage, — a very graphic
passage from the aftidavit of Mr. Stanley Brown where he has told you
for the tirst time with his one year's experience that the males in au
ordinary herd have nothing to do with the selection of females, but
that it is the female who selects her male, — showing, with great defer-
ence to Mr. Stanley Brown, how little he really studied the matter, — it
is absolutely unique as far as seal-life is concerned and certainly with
regard to other animals.
The result is not death to the unsuccessful competitor, but few or no offspring.
Sexual selection is, therefore, less rigorous than natural selection. Generally the
most vigourous males, those which are best iitted for their places in Nature, will leave
most jirogeny; but, in many cases, victory deix^uds not so much on general vigor as
on having special weapons conlined to the male sex. A hornless stag or a spurlcss
cock would have a poor chance of leaving numerous offspring. Sexual selection l)y
always allowing the victor to breed might surely give indomitable courage length
to the spur and strength to the wing to strike in a spurred leg in nearly the same
manner as does the brutal cock tighter by the careful selection of his best cocks.
How low in the scale of nature the law of battle descends, I know not. Male alli-
gators have been described as fighting, bellowing and whirling round like Indians
in a Wardance for the jiossession of the females; male salmon have been observed
lighting all day long; male stag-beetles sometimes bear wounds from the huge man-
dibles of other males; the male.s of certain hijmenopterous insects have been fre-
quently seen by that inimitable observer, Mons. Fabre, figlitiug for a particular
female who sits by, an ap^iarently unconcerned beholder of the struggle, and then
retires with the conqueror. The war is perhaps severest between the males of polyg-
amous animals, and these seem oftenest provided with special wea])ons. The males
of carnivorous animals are already well armed, though to them and to others si'.ecial
means of defence may be given through means of sexual selection; as the mane to
the lion, and the hooked jaw to the male salmon; for the shield may be as important
for victory as the sw ord or spear.
When 1 show you, as I shall upon the .evidence in this case, that
practically the evidence of the Treasury Agents, the evidence of the
people who had no motive whatever except to tell the truth, is that by
the years 1889 and 1890 lighting for the females had disappeared u[)on
these Kookeries, it will be some sup]>ort of the view that 1 am i)resent-
ing that there is strong leason to believe that the potent cause which
the United States Commissioners themselves recognized as being one
of the causes that might lead to the diminution in seal life was playing
its part in depopulating the Eookeries to which these seals resorted.
200 ORAL ARGUMENT OF SIR RICHARD WEBSTER, Q. C. M. P.
!N"ow, I will, in the first place, as fairly as I can, and as clironologically
as I can, tell you what tlie evidence shows. First, let me refer to the
tignres of the Kussiaii killing. Dnring- the Russian time, which will be
found at pages 132 and 133 of the British Commissioners' Keport, sec-
tion 771, — you will remember that General Foster interposed the other
day to say that they disputed all these figures or some of them, — I
really do not thiidc, after the fullest examination that I can make out
what on earth is meant by that, because the source of every one of these
figures is given, it is taken in the most important iieriod namely from
lb38 to 1800, that is to say, a peiiod of 22 jears, from the corres])ond-
ence printed at Washington in the year 1890. And all 1 say is this,
that no other figures have been suggested. The Tribumil are not to
act on surmise or on the observations of an Agent, however distin-
guished. The authority for these ligures is given in paragraphs 772 to
781. They were referred to by Lord Hannen, 1 think, Avhen the obser-
vation was ujade the other day; and I merely mention that, as far as 1
know, no other alternative figures have ever been suggested for the
Eussian period; and it is the fact that they show, as was mentioned
by the Attorney-( General, an average of less than 40,000. I may men-
tion that in the documents annexed to the President's JMessage, I read
from Executive Document 450 of the 51st Congress, and page 31 will
be found, quoting from Mr. Mclntyre the special Agent of the Treasury
Department, again giving the reference to another Executive Docu-
ment, these figures set out, without any suggestion that they are inac-
curate or not trustworthy. Criticise the figures by all means; let any
deducti<m be drawn from them that can fairly be drawn, and then say
if this is fair or not.
Lord llANNEN. — Do I understand you to say that that is this very
Table?
Sir Richard Webster. — Yes, my Lord. My learned friend, Mr.
Phelps, has it now before him. I do not know how manj^ years it com-
prises. Perhaps iny learned friend, Mr. Phelps, will be good enough
to give it!
Mr. Phelps.— The earliest year is 1817, and the latest 18G0.
Sir Richard Webster. — Yes. I merely mention it from the point
of view of authentic documents. It is possible on some such idea as
this, that this was not accurate that some of the suggestions have been
made about the British Commissioners. The authority is given in
every single case.
Now, what happened afterwards? I wish to treat it chronologically;
though perhaps 1 could make my argument a little more gra])hic by not
doing so, but I prefer to treat it chronologically; and I ask the Tri-
bunal to turn to paragrai)h 809 of the British Commissioners' Report.
From paragraph 809 to paragraph 833 are set out extracts from the
United States documents, almost without exception ; or, if not without
exception, the authority is given. I have, either myself or by those who
have assisted me, verified the whole of these documents; and I can say
(though it must not be taken from my personal knowledge; therefore,
I can only say as far as I know and as far as my information has led
me) that these extracts are perfectly accurate.
Let me take them chronoh)gically, and see if it is true that upon the
information before the United States up to 1884 the first time that
there was any doubt as to whether the sufficiency of the number of
seals or seal herd was being kept up was subsequent to that date.
The other extracts are important; and I will ask the Tribunal at some
ORAL ARGUMENT OF SIR RICHARD WEBSTER, Q. C. M. P. 201
time or otlior to look tliem through; but I think I mig-ht pass to the
year 1874, because it is early enougli. There is an important extract
in 1873, to which attention should be called:
813. 1873. It was now found that the 3-year-olcl seals afforded the best marketable
skins, and tlie killinp: was directed to those. The "reserves" became reduced to
half their former nnnihcr, and each beachmaster had on the average lifteen females.
"When the rookeries broke up at the close of the breeding season, the females lin-
gered instead of leaving them as before. In September and October a few young
were born, showing that some females had not been served at tlie proper time in
1872. The females were still increasing 5 per cent, annually in number.
Then i^aragTaph 815 is :
In 1874, Lieutenant W. M.aynard, U. S. N., investigated the conditions of seal life
on the Pribilof Islands as Special. Governnuiit Agent. He recommended that en-
larged copies of m;!])s of the breeding grounds should be furnished to the agents in
charge of the islands, who should be required to compare these each year with the
respective breedingrookeries. "This, if carefully done, will afford data, alter a time,
by which the tishcVies can be regulated with comparative certainty." Respecting
the number of seals killed, he says: "Since 1870 there have been killed on both
islands, in round numbers, 112,000 young umle seals each year. Whether this
slaughter has prevented the seals from increasing in number or not, and, if so, to
wh;it extent, can only be deduced from their past history, which, unfortunately, is
imperfectly known."' He is inclined to think that no decrease had occurred between
1872 and 1«74, but states that the period was too short to decide whether the killing
was excessive. He adds: "Thcnumbernow killed annually is entirely exi)eri mental,
and we have nothing to start from as a basis." Waynard further states that the
number of bulls in this year was not more than one-tenth that of the females.
Then page 138, paragraph 81C.
816. The killing was this year confined to seals less than 5 years old, and more
2-yea.r-olds were taken than in any year since 1870. This left a large number of
males to mature. Many young were, however, born as late as August. In his offi-
cial Report for this year JJryant protests.
I told you I think that Bryant who made affidavits on these matters
left the Islands in 1877.
Bryant protests against the killing of pups for food, characterizing it as "a great
waste," and adding^ "I can find no precedent for this previous to the transfer of
the island to the United States, only that the former Russian Fur Company allowed,
as an extra indulgence to the natives, after the close of the season's sealing, to take
500 of these young seals for feasting.
You know probably Mr. President that the killing of pups continued
right away till 1890 that is to say in addition to the 100,000 taken for
commercial purposes I think the number was in 20 years 93,000 pups
were taken for killing but this though called to their attention as a great
amount, at the rate of about 4,000 or 5,000 a year, was allowed to continue
till 1890.
Senator Morgan. — Was it stopped after 1890.
Sir EiCHARD Webster. — Not till 1890 but after that it was stopped.
Now in page 138 the end of paragraph 81G.
Bryant also states in the same Report that a residence of seven successive seasons
on the islands had convinced him that the killing of 100,000 annually did not leave
a sufiicient number of males to mature for tlie wants of the increase in the number
of females. He explains his reasons for this in some detail.
Now, Mr. President, it may be right or it may be wrong — that we
will consider presently when I go through the whole of the evidence —
but at any rate I show you this is no imagination of those who have
looked into tliis matter impartially. That as early as 1875 it was
pointed out that from 7 years experience the 100,001) killetl did not
leave a sufficient number of males to mature.
In 1876 the isecoud paragraph of page 817.
202 ORAL ARGUMENT OF STR RICHARD WEBSTER, Q. 0. M. P.
Bryant again states that he believes the miinber 100,000 fixed for killing to have
been too high, and that in his report he had recommended that it be reduced by
15,000.
Then in 1881:—
Lord Hannen. — You are passing over Miller.
Sir KiCHARD Weester:
Our agents report a very considerable increase in the number of females since
1871. We cannot tell that there is much increase in the number of males.
That is Mr. Miller who was President of the Board of Directors of
the Alaskan Commercial Company.
Then 8i'2.
Mr. Carter. — Do not you read 818? •
Sir EiciiARD Webster. — I will read any one my learned friend
wishes, but of course, I am not reading them consecutively.
Mr. Carter. — No, I observe you arc not.
Sir EiCHAiiD "Webster. — Of course we cannot. I am making my
argument and my learned friend will read of course anything that will
support his view when it comes to his turn. I am obliged to my learned
friend, however, for calling attention to this.
818. 1877. Bryant states that this year there was an evident increase in the num-
ber of breeding males. He estimates tha t there were about 1,800,000 breeding seals
on the islands, as against 1,130,000 in 1869.
Then I ought to mention this that at paragraph 821 is a citation
made from his report that I shall read later on.
Colonel Murray, one of the Government Agents, dates tbe beginning of a steady
decrease of seals from this year.
that is from the year 1880.
Then paragraph 822:
822. 1881. Elliott, in his rejiort x)rintcd in this year, strongly protests against the
unnecessary slaughter of piijis for food purposes. He states in the same report that
the breeding rookeries have been gradually increasing since 1857.
W. B. Taylor, Assistant Agent of Treasury Departmeut on St. Paul in 1881, says
that according to information received from those who had been a number of years
on the Island of St. George, tliere were as nianv seals there as ever.
823. 1882. Dr. H. H. M'dntyre, after June 1870 Sujierintendent of the Seal Fish-
eries of Alaska for the lessees, states that since 1870 the number of seals on the
Pribilof Islands had increased every year. Speaking in 1888 (see under, 1888), he,
however, places the beginning of decrease in this year. The same gentleman reports
that at this time the desired number of large skins could no longer be obtained.
Then ])age 139 there are several reports of a glowing character from
Mr. Moulton and Mr. Gliddon, and 1 think there is one in 1880, para-
graph 827.
827. 188B. George R. Tingle, Treasury Agent on the Pribilof Islands, states that a
frequent inspection of the rookeries on the islands showed a decided increase in the
number of cows, with an amjde supply of bulls.
I call attention to this in connection with a case of what was supposed
to be the common observation after 1884.
Then paragraph 830 :
1888. Dr. H. H. Mclntyre, Superintendent for Alaska Commmercial Company at
the time on the islands, states that the number of seals has decreased since 1882;
that the rookeries do not produce enoiigh to bear the killing of "100,000 by ma-
rauders in addition to the 100,000 killed lawfully ". He recommends that the per-
mission accorded to natives of killing seal pups for food should be rescinded, and,
sijeaking particnlarlj^ of 1888, says: " There are at iiresent, in my opinion, too few
bull seals to keep the rookeries up to their best condition."
That is in the year 1888.
ORAL ARGUMENT OF SIR RICHARD WEBSTER, Q. C. M. P. 203
Mr. President, may I pause for a inomeiit to remind the Tribunal tliat
a bull-seal to be any good at all upon the rookeries, must be over seven
years old. According to the best information, the best bull seals are
about 9 or 10 years old; therefore, adding on one year for the birth,
this must date you back to find something that has occurred to dimin-
ish male seal life as far back as IS.sO or 1881; and I will point that
observation presently when I come to the suggestion that pelagic seal-
ing can have been the cause.
Then in the year 1890, at paragraph 832^ the British Commissioners
say:
Colonel J. Murray, First Assistant Government Agent, reports tliat tlie seals on the
Pribilof Islands have been steadily decreasing since 1880, and attributes this to the
excessive slaughter of males 2 to 5 years old.
Would you go back, Mr. President, if you please, to the year 1882.
I did not read the last part of paragraijh 823. This is what I had in
my mind.
The same gentleman. —
that is Mr. Mclntyre —
reports that at this time —
that is the year 1882 —
the desired number of large skins could no longer be obtained.
Showing, as I shall show later on, that they were talking of killing
seals of too small a size as early as the year 1882 to make up the nnm-
ber of 100,000. I suppose this is the evidence that the British Commis-
sioners ought not to have included in their Eeport on the view of their
duties suggested by my friends.
Now, Sir, I have read the do(;uments — (in the great majority of cases,
I believe in every case, the original document is here; they are at my
friends disposal) — and I have read tliem as shortly as I could — I have
read them in chronological order — and what does it point to'? It
points to the circumstance that in 1878, 1880, 1882 and at later years,
the fact that too many seals were being killed was being brought to
the attention of the United States authorities. My friends are entitled
to the benefit of the fact that other peoi)le, possibly from motives in
connection with the Company were not telling the truth — that is to
say that there were couleur de rose reports in tlie year 1885, and in the
year 1880, from Mr. Tingle and from INIr. Moulton. But we are now
considering what the real fact is, and the fact to which I am address-
ing your attention, fact, is that during this time, if these lieports are
true, too many seals were being killed — and there was too little virile
life upon the rookeries in order to keep up the race of seals, attention
was being called to it by jiersons of position and persons whose repu-
tation ought to have attracted more attention than it did at the time
the Keports were made. If you will look at page 139 — I missed out
the end of Paragraph 830, you will see this — that in the year 1888.
The standard weight of skins was lowered from 6 lbs to 5 lbs and to 4 1/2 lbs.,
because of scnrcity of 6 lb skins. Thus, all males from 2 to 5 years old became, and
thereafter continued to be, accounted killable.
Now, Mr. President, that is how the matter stands with regard to
what I may call the concurrent Keports which were being made from
time to time by Treasury Agents, and by inde])endent people, many
of whom are still living. Nobody can suggest that these agents had
any motive for making reports of this kind. Their interest was the
204 ORAL ARGUMENT OF SIR RICHARD WEBSTER, Q. C. M. P.
other way and the United States do not in any way snjigest their
Eeports were not true — because they could not suggest that — they do
not in any way lead any one to the belief that they were under a mis-
take and had formed a wrong- impression.
Now would the Tribunal (before I go to the most important time, that
is 1888 and 1889) kindly turn to a diagram on page 257 of the British
Counter Case, which so far as I know hitherto has not been either
adversely criticised; and when the materials from which it is made up
are examined, I do not think my friends will be able to ini])oach what it
shows. This Diagram shows grajthically the proportion ol small skins
that formed part of the catch. If I may tell you, Mr, President, any-
body fond of mathematics, (and I dare say all the the members of the
Tribunal are), and accustomed to statistics, can make this Diagram for
themselves from the original Table of the Total Sales by the Alaska
Company, which is printed in the Appendix of the British Counter
Case Vol II page 255. This is merely a graphic pictorial illustrati'on
similar to that shewn by the United States Commissioners u])()n another
matter. The years are given — 1873 to 18!)2. Along the toi)-line, the
percentages of suuill and large sized skins is shewn by the green color
as compared with ther^;^? color. It would be convenient, I think, if you
were told at once what are "Large", and what are "Small". Large
sized skins comi)rise "Whigs", "Large Middlings", "Middlings",
"Middlings and Su)alls", " Smalls", and "Large pups". Small sized
skins comprise, " Middling Pups ", " Small Pups", "Extra Sinall Pups",
"Extra Extra Small pups", "Grey Pups", and "Black pups".
Now I do not want it to be thought that you are to attach too much
importance to those particular designations. I am not going to use
this against my friends at all unfairly because these are Trade names
in the London Market.
Lord Hannen. — They convey no idea to my mind.
Sir KiCHARD Websteir. — They convey no idea to anybody's mind
as far as the pu])S are concerned but the importance of it is this —
that every skin above 8 lb, in weight is treated as a large skin, and every
skin below is treated as a small skin. Now if you would kindly look,
I give the Relerence at page 4G of the 10th census Peport of Elliott.
Lord E ANNEN. — Would you give those numbers again ; they seem to
contradict each other.
Sir KiCHARD Webster. — Every skin, my Lord, which is above 81b
is called a large skin.
Lord Hannen. — There seems to be a contradiction.
Sir Richard Webster. — The contradiction was in the way I put it.
It had better perhaps, my Lord, appear on the Record in the shape of
a Table: The various sizes of the North-west Coast Skins correspond
to weight as follows:
lbs. oz.
Large wigs 34. 0
Small wigs 23.0
Middlings 14.6
Middlings and SJiuilLs 11. 3
Smalls 9. 8
Largo pups 8.2
Middling pups 6. 12
Small i)ui)s 5. 10
Extra small pups 4. 11
Extra-extra small pups 3. 13
Grey pups 3. 0
All that is containe<l on the Table wliich is in the Appendix: It
would have been convenient, i)erhaps, if those weights had been put
against those names, I regret it was not done, but one cannot always
ORAL ARGUMENT OF SIR RICHARD WEBSTER, Q. C. M. P. 205
foresee every point. Now on reference to the information that we have
from Elliott's lOth Census Report of 187(5— the one published in 1881 —
from weights ascertained by weighino- a large number of seal skins, the
skin of a seal of 4 j^ears old weighs 121bs; and the skin of a seal of 3
years old weighs Tibs. I merely mention that to show there had been
a largely increasing proportion of comparatively speaking young males
being killed — the Keports show it, and the sales show it. We know in
the year 1882 the standard was lowered in consequence of the difficulty
of getting the full size of skins, and accordingly yoii will find, that the
percentage of small skins runs up from below 50 per cent in the year
1873, to as high as nearly 80 per cent of male skins in the year 1889,
with a temporary downfall (as not nnfrequently happens), in the year
1885, when it fell down to something like the normal condition of mat-
ters. Therefore from that point of view it cannot ultimately be disputed
by my friends successfully in this case, that during this period of years
they were killing many more of the small skins than they ought to have
killed. But will the Tribunal kindly appreciate this for a moment?
The immediate result of pelagic sealing, if that was the cause, would
be to decrease the number of small skins — not the number of large skins.
1 have pointed out to the Tribunal that the breeding bull of course must
be more than seven years old. The killable skins which were supposed
originally to be taken were four or five years old — that is to say, the
bigger skins. The immediate result of pelagic sealing would have been
that when it became prevalent you would have had, in a given number
of seals — 1,000 or 10,000 — a laiger proportion of bigger seals to the
younger seals. When you got to a long series of years that would cor-
re(;t itself and you might get back to the old proportion. I do not think,
if it had been true that pelagic sealing was the main cause in the first
instance, but that it can be denied that you would have expected to find
an increase in the proportion of big skins instead of an increase in the
percentage of little skins. I mention that as a broad general commen-
tary before 1 pass to what I may call more detailed matter in connec-
tion with it.
Now may I call attention to Reports upon this matter to which I sub-
mit (it is entirely for the Tribunal), the greatest attention must be paid.
I can give them all in a very convenient reference on page 241 of the
British Counter Case. You will find, tsir, the references given, in every
instance, in the margin. The original Iveports are set out in full in the
Appendix to the British Case volume III, part 2, running over a num-
ber of pages. I only refer to the Bi'itish Counter Case now in order
that you may have them in compendious shape, and because I think,
as far as I know, all the important extracts, or most of the important
extracts are set out here. I read from page 244 :
In 1890, Assistant Agent A. W. Lavender.
Now this is an Agent still employed by the United States engaged
in assisting in getting up Affidavits for this case to a large extent, and
there are two affidavits from him not contradicting this in any way:
In 1890, Assistant Agent A. W. Lavender writes:
The writer was sur})rised when he tirst visited the rookeries to find no ijoung hall
seals upon them; this looked strange to him, and he began to look up the cause, and
it occurred to him that, from the constant driving of young male seals and the kill-
ing of all the 2,-3,-4 and 5 ye;ir-olds, tliere were no young bulls left to goon the rookeries,
and without young blood the fur-seal industry will be something of the past in a
very few years.
Now that is in the year 1890. Mr. President, I ask the Tril)unal to
remember this : That in that year there was made a detailed report (to
206 ORAL ARGUMENT OF SIR RICHARD WEBSTER, Q C. M. P.
which I am coming presently), at tlie preparation of which, or, rather,
at the notes for the preparation for which this gentleman, ]\Ir. Laven-
der was i)resent ui)on the island. If there had been any mistake about
this matter — if it had been suggested that that Keport was not accu-
rate, there would have been strong ground for calling Mr. Lavender as
a witness to prove the contrary. You know that IJeport was never
forth coming until ordered by this Tribunal; but I call your attention
to this — that in ISOCKan independent Agent of the United States states
that he found no young bull-seals there, and he attributes it to the kill-
ing of two, three, four and five-year-olds. Why, Sir, what as I have
reminded you, is the necessary age for these bulls'? The necessary age
for these bulls is that tliey shall be seven, eight, nine, ten years old.
Nobody can suggest that to the i)elagic sealer is due the killing of bulls
or male seals of an age say of four or five years. On the contrary, if
that had been the charge against the pelagic sealer, my learned friends
would have had no ground for tlieir main comi)laint; and yet we find
in 1890 the United States Agent is reporting that he finds no young
bulls left u])on the rookeries.
Now I will pass, if you will permit me to do so. Sir, all references
there to Mr. Elliott's 1890 Eeport, because I prefer to take that by
itself. I desire to show that independently of Mr. Elliott's Eeport,
there was a body of testimony upon this matter which ought to have
shown the United States authorities what the real truth was with
regard to this matter; and that this allegation that pelagic sealing had
depleted the sealeries could not, if fairly examined and tested by the
real facts, have been seriously put forward. If that were the real case,
after this evidence, I shall submit to this Tribunal that nobody leally
could come to such a conclusion.
Now in 1889 Mr. Goft' reported also as Treasury Agent I must give
you, Mr. President, a different reference for that. It is on page 245 —
you need not turn to it — but the actual Eeport, produced by Mr. Foster
for us, — one Eeport — is to be found at page 8o of the 1st volume of
the Apx)endix to the British Counter Case, but I read from page 245.
Now on page 247 of the British Counter Case appears the Eeport of
Mr. Bryant who left in 1877. He says:
"The whole time I was there" — that is up to 1877:
The -whole time I was there there was an ample supply of fnll-grown vigorous
males sufficient for serving all the females ou the islands, and every year a surplus
of vigorous bulls could always be found upon the rookeries awaiting an opportunity
to usurp the place of some old or Avouuded bull, unable longer to maintain his place
upon the breeding-grounds. 1 should except irom this general statement the seasons
of 1873 and to 1875, when the destruction of young males in 1868, and the error
made by the Company under their misap))rehension as to the character of the skins
to be taken for market, perceptibly affected the males on the breeding-grounds. It
is not certain that the fertilizing of the females was thereby affected, and this gap
was filled up, and from this time on there was at all times not only a sufficiency hut
a surplus of male life for breeding purposes.
That is up to the year 1877. Perhaps, Mr. President, you will be
good enough to make a note in your own mind while upon the page,
that Bryant's Eeport was speaking of 1877 when he left the island and
never returned to it again.
Now that statement is taken from Br^^ant's Affidavit at page 7 of
Volume II of the United States Case. Here was his Eeport which is
an official Eeport of 1875, quoted at page 247 of the British Counter
Case.
At time of writing my detailed Report on the habits of these animals, dated the
30th November, 1869, it was stated to be 100,000. This number was based on the
best information obtainable at that time from the natives of the island and the few
employes of the former Russian Fur Company remalDing in the territory. Since
ORAL ARGUMENT OF SIR RICHARD WEBSTER, Q. C. M. P. 207
then a residence of seven successive seasons on tlie island, in cliarfije of these animals,
has furnished me -nith the desired opjiortnuity for determining this snrjdns product
by actual study of their habits and requirements, and the result is, the killuif/ of lOOfiOO
j)er annum doeti not leave a sufficient number of males ti mature for tlie icanlsof the increase
in the nuniher of females. And as it is desirable to stare some of the niethods by
which these conclusions have been reached by mo, a brief statement of the habits
of these animals and the effect of the killing of 100,000 per year for the past five
years seems necessary.
These, hanling-groinids are swept and driven two or three times a week during the
months of June and July, and the prime seals culled out for killing, and every seal
growing up has to run this gauntlet for his life his second, third, and fourth year
before he escapes to grow up as a breeding bull. Thus it will be seen the method of
killing does not admit of the setting apart of a special number and taking the
remainder for the quota for market, and the only possible way to preserve the requi-
site number for breeding purposes is to restrict the number to be killed so far within
the product as to ensure enough escaping for this object.
I will sliow you, Mr. President, if I may make the observation here,
that after about the year 18S5 or 1888 the difficulty was so great in
getting- large skins — not small pups, but large skins, — that they killed
in the drives every seal that was big enough to kill. There was no let-
ting go of the five or six year olds in order that they might become
breeding bulls. They were all killed.
When the lease was put in practical operation in 1871 there was a very large excess
of breeding males on hand ; since then the surplus has been diminished by the dying
out of the old seals faster than there has been younger seals allowed to escape and
grow up to till their places, until the present stock is insulJticieut to meet the neces-
sities of the increasing numlier of breeding females.
Then occurs a passage on page 248, lower down, to which I direct the
attention of the court. I do not ])ause to read it, as it is under their
eye; but it supports the opinion Mr. Bryant then gave.
In the year 1876 Mr. Bryant was examined by a Committee of Con-
gress, and his answer is given on page 248.
Q. Your opinion then is that the number of 100,000 on the two islands authorized
hy law can be regularly taken without diminishing the crop or number of seals com-
ing to the islands? A. I do not feel quite sure of that, as will be seen in my detailed
report to the Secretary of the Treasury included in the evidence which has been
laid before the Committee. There were indications of diminution in the number of
male seals.
-Then he refers to what happened in 1868.
Mr. Foster. — That is the reason.
Sir Etc HARD Webster.— Tlie United States say that we have not
referred to the whole of the evidence of Mr. Bryant. As a matter of
fact, there is nothing left out from Mr. Bryant's evidence before that
commission that tells in any way against us. On the contrary if the
report to the House of Representatives of the 44:th Cong., numbered
623, page 99, be referred to, it will be found that the further evidence
that he gives is in our favor, with regard to the matter that they had
been killing seals, that they were not allowing a sufficient number of
big seals to be left to become bulls.
At page 249 of the Counter Case, Mr. Taylor, Assistant Treasury
Agent in 1881, is quoted. The reference is given, and my friends can
follow it. I need not give it. He says:
I believe the capacity of the bull seal is limited the same as any other animal; and
I have very frequently counted from 80 to 35, and even at one time 42 cows to one
bull. I think if there were more bulls there would be less cows to one bull, and in
that way the increase would be greater than now.
Then Mr. Mclntyre, in 1882:
I was therefore always alert to see that the 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 became from year to year more difficult as the seals
decreased;
208 ORAL ARGUMENT OF SIR RICHARD WEBSTER, Q. C. M. P.
ITow, I ask what is the fair conchision to be drawn from this, that
after 1882 not that the pups diiniiiished — it may be perfectly true that
tliey were killing too inanj^ for other reasons — but that the breeding
bulls could with difficulty be obtained from year to year. They could
•not get the breeding bulls, and those are the bulls that ought to be
supplied out of the larger seals they killed in the drives.
Mr. Ryan, in 1885 and 188ij, also a Treasury Agent:
As the Report will slunv, we killed but few bulla, though the Company was author-
ized to kuock down all old troublesome bulls comini; in their way to the number of
thirty, the skins of wliinli were wanted by the natives for door mats. The surplus
of old bulls expected to be found did not make tlieir ap})earanee in the drives or on
the rookeries this seasou, and I think now nor last season either.
Mr. President, this is a time when all the persons who have considered
this matter, my learned friends included, are speaking of, a date when
pelagic sealing could have had no effect on the bulls. This is referring
to the years 1885 and 1880, The suggestion they make is that the very
earliest year when pelagic sealing would have had any sensible effect
woidd have been 1884, Even that is earlier than it could have had any
effect, but taking their own case, pelagic sealing could not have had
any effect upon bulls not being there to serve the rookeries in 1885 or
1886; and every one who is accustomed to deal with evidence will rec-
ognize the force of what I say.
ISText is Mr. Palmer, who gives the result of his observations in 1890,
the same year that Mr. Elliott was there:
It will be seen also that by this driving process the two or three year olds, which
are the onl_y ones killed for their skins, are culled out almost completely from the
seals which visit these islands, and therefore that very few male seals ever reach a
greater age; coTisequently there are not enough young hulls growing up to supply
even the yearly loss on the rookeries, much less to provide for any increase.
The United States shut their eyes to every one of these facts. We
know that there was great pressure being exerted. I q note from memory
from one of the affidavits: " We were being pressed to get larger skins,
because the buyers complained that the larger sizes were running down."
I remember that extract. I will verify my recollection before I close my
observations.
In the report of the Congressional Committee of the fur seals of
Alaska, report 3883 to the House of Representatives, Mr. Mclntyre, a
witness vouched over and over again by my learned friends as a witness
of responsibility, gave this evidence, page 118:
Q. I want to know what the regulation has been or how the Company manages
in regard to taking the kind of skins demanded by the foreign market? A. We
always receive instructions from London as to what the market demands. There is
very little variation from year to j'ear. At first, ami until 1873, the agents of the
Company were not fully informed as to what the market rt^quired, and the skins sent
forward were too small; but irom 1873 to 1882 we were able to get exactly the sizes
required, and very little fault was found by the London people. We had then, and
at all times until the marauding was actively engaged in, a large surplus of animals
from which to make our selection. After 1883 the sizes decreased, and have con-
stantly decreased ever since. Last year they sent an urgent appeal to take larger
skins, as the sizes were running down; but we were unable to respond, and during
the ]ir(;sent season the catch averages still smaller in size, as we were obliged to turn
back for rookery service any bulls of desirable size for killing, and had very few
surplus of any marketable size from which to select.
That was in the year 18S8, speaking of the year 1887. How what is
happening? The sizes are running down. They are obliged to kill all
they can in order to get their 100,000, and still the sizes run down, after
what year? After the year 1883. In fairness, upon this issue, what
answer can be given to the suggestion"? Nobody preteirds that at any
ORAL ARGUMENT OF SIR RICHARD WEBSTER, Q. C. M. P. 209
time pelagic vsealing' coiTld make the sizes run down. The sizes running-
down means tliat smaller seals are being killed upon the land; and that
diagram of the very large proportion of small seals which were being
sold in the years ISSo up to 188!) is proof of what actually was occur-
ring with rei:ard to these very seals when the skins were taken. The
consequence is that it was not that there were less young seals, but
there was a much larger ])roportion of the young seals to the old ones.
The old seals were being killed, and that was the stock from which the
bulls were to be drawn.
Mr. President, kindly remember that this case I am now making is
independent of any suggestion or anything based upon Mr. Elliott's
report, although I will show this Tribunal that the suggestion that Mr.
Elliott's report is to be regarded with suspicion or disfavor is an unworthy
suggestion, and never ought to have been made even hypothetically by
any one ajjpearing for the United States.
Then on page lioO Dr. Uall in 1891 — I do not know whether that is
the same Dr. Dall that makes the affidavit for the United States, but I
believe it is :
Dr. Dall attributes the present decline of the fur-seals chiefly to the excessive
killing of young males; there is not now a sufficient number of males; in the breed-
ing grounds to nmintaiu the sjiecies. He admits that the method of driving referred
to by Mr. Pnlmer is also very destructive. The excessive destruction of males began
in 1872 and it has continui d to the present time.
And in a letter written on the 5th of ]S"ovember, 1891, he says further:
Wliat I did say was to intimate that after the killing in the open sea (the most
important fact in the diminution) the second factor was the killing of too mnny
young males rather than tlie injuries caused by driving; the latter being a view
much insisted on by Mr. Palmer.
I will call attention later on, I am afraid I must, say this afternoon,
to the condition of driving; and my learned friends will have also to
bear the brunt of that when they come to deal with this question of
increase. It is in my favor that these gentlemen are opponents of
pelagic sealing. It is in my favor that these are the men who wished
pelagic sealing to be suppressed. From the fact that they did wish
pelagic sealing to be sup])ressed all the more important is their testi-
mony with regard to the other potent cause at work ; and this is a cause
admitted by the United States Commissioners to be one of the causes
which would directly affect the life and the numbers of the seals upon
the islands.
Now, Mr. President, there is a very important piece of evidence in
this matter from Mr. Mclntyre's affidavit on behalf of the United States,
at page 293 of the collated testimony :
The policy of the Alaska Commercial Company during the whole period of its
lease was, as might be naturally expected, to obtain the best possible skins for
market, and at the same time preserve the rookeries against injury; for it was not
only in their interest to be able to secure from year to year until the expiration of
tlie lease the full quota allowed by law, but they confidentlv expected by reason of
their good management of the business and the faithful fultillmeut of every obliga-
tion to the Government to obtain the franchise for a second term. I was therefore,
alert to see tbatthedue proportion of breeding males of serviceable age was allowed
to return to the rookeries. This was a comparatively easy task prior to 1882, but
became from year to year more difficult, as the seals decreased. No very explicit
orders were given to the "bosses" ujion this point until 1888, because the bulls
seemed to be plentiful enough, and bccaiise it was easier to kill and skin a small seal
than a large one, and the natives were inclined for this reason to allow the larger
ones to escape; but in 1888 and 1889 there was such a marked scarcity of breeding
males on the rookeries that I gave strict orders to spare all live year old bulls and
confine the killing to smaller animals.
B S, FT XIV 14
210 ORAL ARGUMENT OF SIR RICHARD WEBSTER, Q. C. M. P.
It will pass the ability of my learned friend Mr. Phelps to suggest
upon any evidence in tbis case that before 18S2 ])e]agic sealing bad the
slightest effect or could have had tlie sligbtest effect upon these bulls;
and yet tbere is the statement of the man who is vouched over and over
again as being a Avitness of accuracy. He says that after 1882 it
became from year to year more and more difficult to get, what? The
bulls. And in 1888 and 1889 every bull above five years old was spared.
Why, Mr. President the very affidavit proves my case. Take five
years off 1888, and where do you come back to? 1883. The bull
which is five years old in 1888 must have been qonceived in the year
1882; and nobody suggests, even in tiie oral, still less in the written,
argument, that up to the year 1882 yjelagic sealing had bad any effect
which could depreciate the number of breeding bulls at any time.
Certainly at that time no suggestion of the kind is made.
Mr. Carter. — That suggestion has been made and will be repeated.
Sir EiCHARD Webster. — Mr. Carter says it, Mr. President, and of
course he is j)erfectly entitled to say it, though it is not germane to
what I was saying. But when the suggestion is repeated, we shall be
entitled to have the place where it has been originally made pointed
out. It is not in the stress of argument, it is not in the pinch of the
case, that counsel can make the suggestion. We can all make that.
We can all say that we do not believe witnesses that are against us;
we can all say we discredit people as to wliose testimony the only
objection is that it is adverse to our case. It is not to make a sugges-
tion ; it is to show upon what original document, where in the case, at
any time prior to reply, such a suggestion has been made. On page 165
of the United States Case it is put in this way:
From tlie year 1880 to the year 1884 and 1885, the condition of the rookeries
showed neither increase or decrease in the number of seals. In 1884 however, there
■was a perceptible decrease noticed in the seal herd at the islands.
That is not a suggestion that the difficulty in getting breeding bulls
was greater after 1882 because of pelagic sealing. But I must put a
restraint upon my argument, whatever the allurements may be that are
held out by my learned friend Mr. Carter.
Mr. I 'resident, in this connection let us approach at once — for I am argu-
ing this case at present quite independently of anything upon which
the slightest suspicion has been cast, — let us take the other limb of the
United States Commissioners argument, that which they thought of
sufficient importance to repeat it twice. It is true that the harems have
diminished in size? They admit that the two causes would be diminu-
tion in the number of virile males, and if there are sufficient virile
males, consequently smaller harems. Is it true that the harems have
diminished in size to each virile bull. I remind you, Sir, that the Com-
missioners rely upon the statement made to them by Mr. Webster that
whereas there used to be thirty now there were only fifteen. Mr. Web-
ster's affidavit will be found at page 179 of the second volume of the
Appeiulix, and tbere is not a reference to the size of the harems from
beginning to end. I give you the page in order that I may be checked
if I am wrong. The most important point, according to the United
States Commissioners own statement, is left unsupported by proof.
But let us see whether there is not some proof on the other side.
The President.— Was it not given as a literal extract?
Sir KiCHARD Webster.— Oh no; not at all. The affidavit had not
been made at the time. Oh no, it is not tliat. They had had a conversa-
tion witli Mr. Webster. If you will kindly look once more at page 349,
you will find it thus :
ORAL ARGUMENT OF SIR RICHARD WEBSTER, Q. C. M. P. 211
It is worth while here to repeat the statement of the latter (hat formerly there
■would be on an average 30 cows to 1 bull; now they would not average 15.
Tills is considered so important, Mr. President, if I am not unduly
troubling you will you look at page 344, you will tind tliere they quote
Captain Webster and they quote Mr. Eeilpatb. Captain Webster is the
only one who is supposed to have said anything with reference to the
size of the harems. Mr. Kedpatb only speaks of the total number of
females, which has nothing of course to do with the point uj>on which I
am arguing, which is to contrast the condition of virile males, and the
condition of females per virile males.
The President. — Where was this declaration made?
Sir Richard Webster. — I should think on the island to the Com-
missioners in the year 1891, when they were there.
The President. — By word of mouth?
Sir Richard Webster. — Yes. A statement made to them on a
vital point by Mr. Webster. Mr. Webster makes subsequently his affi-
davit— the actual date is sometime in June 1892 — and that athdavit does
not refer to the size of the harems or in any way repeat the statement
that has been made. I do not want it to be thought that I am goingto
rely upon negative testimony in this respect, if you will i)ermit me to
say so. I am only calling attention to that to show the absence of
afihrmative testimony on the part of the United States in regard to the
matter.
But there is one observation, before you adjourn. Sir, which I must
make. The Commissioners were there in 1891 themselves. If they
thought as they have said, that it was of vital imi^ortance to ascertain
this fact, whether harems had diminished in size per virile bull, they
would have examined it. Either they did or did not examine it, they
have not given us their results. If they did not examine it they have
failed, as I contend in my submission to this Tribunal, to consider that
question which they themselves by their report put down as being a
test question, and which, at any rate, I have shown my willingness to
meet upon the evidence.
The Tribunal here adjourned for a short time.
Sir Richard Webster. — I had pointed out to the Tribunal that if
the United States could have established a decrease in the number of
cows per virile male it was vital to their case to do so. Now, how does
the evidence stand? I will call the attention of the Tribunal first to
paragraphs 292 to 294 of the British Commissioners' Rei)ort.
292. Though each full-grown male or " seacatch" holding his place on the rookery
ground endeavours to obtain and keep about him as many females as possible, there is
a limit to the number which may be advantageously held by a single male, and when
adult males are found in abundance, it is not easy to pass this normal limit; but, on
the other hand, when, in consequence of a paucity of adult males in proportion to
females, the harems become too large, the females are irregularly served, served too
late in the season, or, in some cases, may altogether obcipe efficient service, with
resulting irregularities in times of birth of young in the i.bxt year, or an addition to
the number of barren females.
293. The proper portion of adult males to females cannot be ascertained by inspec-
tion of the Pribylof rookeries as they are at present, because of the obvious and gen-
erally acknowledged deficiency of virile males; but in the earlier years of the control
of these islands by the United States, Bryant estimated the existing proportion as
about one male to fifteen females, or, as indicated by other statements by the same
writer, as one to nine or twelve. Elliott, a few years later, and subsequent to the
date of certain changes in organization of the seals described by IJryant, writes: — " I
found it an exceedingly difficult matter to satisfy myself as to a fair general average
number of cows to each bull on the rookery; but, after protracted study, I think it
will be nearly correct when I assign to each male a general ratio of fiom fifteen to
twcut}' females at the stations nearest the water, and from there back in order from
212 ORAL ARGUMENT OF SIR RICHARD WEBSTER, Q. C. M. P.
that line to tlie rear from five to twelve." M. Grebnitsky, Superintendent of the
Commander Islands, as the result of his prolouued experieuce, states that the propor-
tion of one adult male to ten females should not, as a rule, be overpassed, and that
one to twenty may be considered as a maximum limit. Captain Blair, long familiar
with the fur-seals of the Asiatic coast, informed us, in speaking of Kobben Island,
that the number of males now existing there, viz., one adult male to twenty-five
females, was far too small. Lieutenant Maynard, again, says: "The bulls are polyg-
amous, having from five to twenty cows each; so that the number of them upon the
rookeries is not more than one tenth of that of the cows."
294. It may tlius be very safely assumed that the ratio of virile males of full age,
cannot be allowed to exceed the pro2)ortion of one to twenty, without serious danger
of harm to the breeding rookeries, and the certainty of grave irregularities on them;
and it is necessary to bear this fact in mind in endeavouring to appreciate the meaning
of the present condition of the rookeries of the Pribilof Islands, where, as elsewhere
poiutetl out, these conditions have, for a number of years, not been realized.
It is not too far to say, Mr. President, tlie result of that collection ot
authorities would put au average of something- like 1 to 10 with a max-
imum of 1 to 15, and in extreme cases 1 iu 20 being thought too high.
Now let me first take the United Htates evidence as to what the state
of things is, or rather 1 should say, as to what the state of things ought
to be; and if the Tribunal will kindly take the 2nd volume of the
Appendix, they will find Mr. Bryant's affidavit at page 6 where, in the
middle of the paragraph with a marginal note of" Bulls," he says : " Here
he " — that is the bull —
gathers about him as many cows as he is able to place within the radius of the area
controlled by him: the average seen at one time Avhile I was on the islands was from
fifteen to twenty to a bull; but as the cows were constantly going to and coming
from the water, it is impossible to calculate accurately the number to a harem. Prob-
ably not all the cows belonging to a bull were on shore at any one time; and I am of
the opinion that a bull could, if necessary, serve seventy -five to a hundred cows dur-
ing a season.
I mention that, as JNIr. Bryant's affidavit made in the year 1892 is
somewhat a strong order after he had left the Island for some 16 years;
but it is important, even with his desire to make an affidavit, as far as
he could, justly in accordance with the United States Case, he puts the
average from 15 to 20.
T would kindly ask you to be good enough to turn to page 14 of the
same book where you will find Mr, Stanley Brown's first affidavit in the
matter; and, reminding you of au average from 1 to 15, on a maximum
of 20, let us look how Mr. Stanley Brown, with his one year's experience,
describes it:
The number of females which a bull is able to gather around him to form his
harem, depending, as it does in some measure, upon topographic conditions, may be
represented by extremes of one a?id 75. The average number of last year was aljout
20 or 25. Unusually large harems were infrequent.
Kow I wish to speak with all respect for Mr. Stanley Brown's opinion,
but it is remarkable to note that referring to this subject with afresh
mind he puts the average at 20 to 25, or 30 or 40 per cent above the 4
or 5 gentlemen of great experience, whose evidence, from their pub-
lished reports, I have already read to the Tribunal; and he mentions
harems he liad seen which ran up as high as 75.
Now there are two accounts made of this matter by Mr. Evermann in
the United States Counter Case at page 264. The first one gives 13
bulls, 90 cows, and 211 pups; and he says that he counted, counting all
the harems, calling one bull and all the cows and pu]»s about him, one
harem. The next one gives 15 bulls, 200 cows, and (iOO pu])s, whicli is
1 in 40; and I desire to point out a very remarkable thing that iu mak-
ing the count of a harem he says.
ORAL ARGUMENT OF SIR RICHARD WEBSTER, Q. C. M. P. 213
A good many cows, aud a great many pups were not counted, as they did not seem
to belong to any particular family. These cows liad been served, and were, conse-
qnently. allowed to wander from their lords. The pups apparently do not long
remain in families where they belong, but soon begin to wander about, and to collect,
for a part of the day at least, into large bunches or pods.
Tbeiefore I point out that it is an estimate not taken in a way that
would create tlie largest maximum number I make no complaint about
it but it cannot be said he counted exceptionally large harems, because
he himself describes before his count he left out some of the cows and
pups that might apparently belong because he thought there were more
than did belong to the harems. But in the evidence as it stands you
have in the year 1891 and 1892 averages according to Mr. Stanley
Brown of 25, aud of Mr. Evermann an estimate given from these cal-
culations which would show even a larger quantity.
Now there is very accurate testimony of this matter given by Mr.
Macoun in page 140 of the first volume of the Appendix to the Counter
Case, which I will ask you to be good enough to follow reminding you
once more, if I may respectfully do so, of the importance of this issue,
as pointed out by the United States Commissioners themselves:
Whenever harems were well defined, and could be readily separated from adjoin-
ing ones, the number of female seals was counted. It was found that though there
were a few cases in which an old bull would have but two or three cows about him;
there were many other bulls which had filty or more one in particular shown me by
Mr. Brown, hadabout him more than eighty females. This was Mr. Brown's estimate.
The average number of females in each harem, according to my count was about
thirty, my figures giving a little over that number. My attention was frequently
drawn by the United States Agents to what they called the great number of mature
bulls that were without harems. Comparing mentally the number of such bulls
with those seen on the rookeries of last year, I decided, while on the ground, that
there were not more than there were in 1891 though an additional number of mature
males must have come upon the breeding-grounds. A comparison of photographs
taken during the two seasons show no change in the number of bulls without
harems. During neither season were there old bulls to be seen in anything like the
numbers mentioned by Elliott and others.
Thus, Mr. S. N. Buynitsky says :
Thousands of old bulls, which have become useless for the purposes of propaga-
tion and are an incumbrance to the rookeries might be killed for their blubber.
Captain Bryant writes:
Diu'ing the latter portion of the landing time there is a large excess of old males
that cannot find room on the breeding places; these pass up with the younger seals
and congregate along the upper edge of the rookery, and watch for a chance to
charge down and fill any vacancies that may occur.
And again:
The number of full-grown males at this date (10th August) may be considered as
three times greater than the number required, or equal to one full-grown male to
every three or four females.
PZlliott says, writing of the years 1872-74 :
At the rear of all these rookeries there is invariably a large number of able-bodied
males which have come late, but which wait patiently, yet in vain for families. All
the surplus able-bodied males that have not been successful in effecting a landing
on the rookeries cannot at any time during the season be seen here on this rear line.
Only a portion of their number are in sight; the others are either loafing at sea
adjacent, or are hauled-out in morose squads between the rookeries on the beaches.
And again:
300 or 400 old bulls were killed to supply skins to furnish the natives with canoes.
Not that number could have been secured in 1892 had the bulls without harems
been driven from every rookery on both islands.
The greatest number of bulls in proportion to the cows on the rookeries were to
be found at North-east Point. I visited the rookeries there in company with Mr.
Brown on the 2nd July. He drew my attention to what he called the excessive
number of bulls without harems and tliere certainly appeared to be a great many
but knowing that their great size renders them couspicioiis, I carefully counted all
that were to be seen in the vicinity of the rookeries at this place.
The bulls near each rookery were counted three times, and the totals of the three
counts were 94, 89, and 92 respectively.
214 ORAL ARGUMENT OF SIR RICHARD WEB8TER, Q. C. M. P.
There may have been a few hidden behind rocks, but certainly not more tlian a
dozen in all placing the total number at 100, and allowing twenty cows for each
bull, there were enough bulls on this rookery to serve 2,000 cows more than there
were.
I do not think anybody would suggest this is not fairly reported :
This is assuming that all were of an age and condition that fitted them for service.
Many of them showed the grey wig which ]>roved them to be not yet fully grown,
while others were without doubt worn-out old bulls no longer fit for service. That
the majority of them were in this condition is proved by the fact that though
attempts of service by grey wigs were not infrequent I never saw one of these old
bulls pay the slightest attention to any females that might pass near them.
Senator Morgan. — Will you allow me to inquire as to your observa-
tion upon the.testimony? Is it a correct description of a seal that is
not full grown to call it a grey wig.
Sir Richard Webster. — I believe so, yes.
At Zapadnie Rookery 3rd July, Mr. Brown, j\Ir. Townsend and I noticed on several
occasions a cow escajie from a harem and lie down at some distance behind it, but
in only one instance was any notice paid them by bulls near by. In this one instance
the cow endeavoured in many ways to attract an old bull's attention, rubbing her
nose against him and striking him playfully with her flippers; he made some faint
response, but after a minute or two lay dov»^n and went to sleep again. Two other
bulls lying near them raised their heads once or twice to observe what was going
on but no attempt was made to serve the female.
There were in 1892, in my opinion, more old bulls without cows in the vicinity
of the rookeries at North-east Point than the combined number on all the other
rookeries.
At Tolstoi rookery (3rd July) but one old bull without a harem could be detected
at the south end of the breeding-ground, where a good view can be had of a great
part of the rookery.
On St. George's Island there were, in proportion to the total number of seals even
fewer bulls than on St. Paul Island. On the 15tli July there were not a dozen along
the whole extent of North rookery, and but two were seen at Little East rookery,
and two at East rookery.
Zapadnie was visited the nest day, and not a dozen were to be seen there so many
statements have been published to the effect that old bulls without harems are
always to be found in large numbers near breeding-grounds that it would seem that
the rookeries on St. Paul Island are nearer their normal condition than those on
St. George.
Now, I ask you only to assume that that Report by Mr. Macoun, which
I have referred to many times before, is a fair statement of what he
saw.
Kow, let me call your attention to the year 1890, when there were no
less than four Government Agents there, who have all made Reports,
besides Mr. Elliott who was sent to make an independent and exhaust-
ive Report. Will the Tribunal kindly take Mr. Elliott's Report,
which was from actual observation as I shall show you from his diary,
and look at xiage 80 tirst.
The arrival op the Breeding seals, 1872-1890. — In view of the changed condi-
tion of the rookeries of St. Paul and St. George last summer, I took great care in
noting the daily arrival of the breeding-seals and methods contrasting these notes
with those taken eighteen years earlier: I can truthfully assert that they come as
they came in 1872, in the same time, same manner, and in every respect comport
themselves as they did, save in two characteristics; the old bulls are disproportion-
ately scant in number, exceedingly so, and the young male life fit to take their places,
is virtually extinct. I reviewed in 1874 my studies of this topic in the following
language :
And then he writes what I need not read at present, except to call
attention to the fact that there was a general ratio between bulls cows
of from 15 to 20 at the stations nearest the water, and at the back from
5 to 12. That is what I read to day.
Thus in 1872, when the rookeries were carefully observed witb reference to this
question, I found a general average of fifteen cows to each bull: (without taking
vnto consideration the virgin females ) : in 1«90, a general average of forty to fifty
ORAL ARGUMENT OF SIR RICHARD WEBSTER, Q. C. M. P. 215
cows to each old bull (no young ones about), as the result of careful investigation:
and single harems in which I have counted over one hundred cows each in the
flimsy charge of an old and weary "sea-catch"; such harems were not uncommon:
this unnatural disproportion of the sexes on these breeding grounds to-day renders
the service there of reproduction quite lifeless — almost impotent, wholly so in a vast
aggregate of cases.
I cannot too often repeat as I have shown you already and will
remind you later on there are no less than four Government Agents,
who knew of these facts, and who have made Eeports, showing that
they observed the same thing; and there is not a shadow of a state-
ment that this is untrue. The only grounds on which it can be said to
be untrue or exaggerated is because it is not the class of testimony
favourable to the IJnited States' contention that the harems had decreased
in number. Would you kindly turn to page 240? This is the extract
made at the time on Ketavie, one of the rookeries:
As this is the time the cows begin to haul out in appreciable numbers, I took a
careful view at this Ketavie Rookery to day from that point of sight in the sketch
opposite.
You know that there were some 30 or 40 in number, which were
photographed by the United States, and the photographs have been
deposited with the Eeport before this tribunal.
I saw but three clusters of cows in all the sweep of this picture, and they in
the fore-ground right between the 1st and 2nd rollers as they come in; these pods
were bevies of from 30 to 50 cows each, all thickly clustered around a single bull
with all the other bulls stretched in somnolence around them, just as I recorded
the state of affairs on Tolstoi yesterday ; and as I go over the field on Lukauuon right
after this I lind it precisely that way there, too; this apathy of the bulls coupled
with the total absence of the " polseecatchie" (or "half-bulls") on these breeding
grounds at this hour is a striking contrast with that din and fury that was so marked
among the swarming bulls of 1872 on this and every other one of the breeding grounds
of the Pribilof Islands.
Then 1 might read page 241, the day before on Tolstoi, which he
refers to —
But the behavior of the old bulls is extraordinary this morning at this time of
the inflowing cows ; they are listless ; three-fourths of their scanty number, stretched
out sound asleep, while right alongside of these sleepers, a pod of 15 or 30 cows will
be closely clustered around a single alert bull, or one that at least is not inert and
stupid. There are three such pods as that right under my eyes as I make this note,
lying at the junction of the sand beach and rocks of Tolstoi rookery; no such scat-
tering of bulls and indifference was ever witnessed on any of these breeding-grounds
in 18'72-'74; then every bull was alert and iurious in his struggles to get possession
of at least one, if not all the females within reach; — now, look at them! Why, it
seems to me that these bulls are enfeebled and sick. At least it is a most remark-
able deviation from the method and order of first arriviil of the females in 1872;
such a picture of perfect listlessness and indift'erence as this is, from the beginning
to the end of the season, never met anybody's eye on these breeding-grounds then.
Now, nobody can read this Report and know that it was a contempo-
raneous record of that which he and many other persons saw at the
same time, without coming to the conclusion at once, if it was possible
of contradiction in fact, it would have been contradicted. I will show
you it is without contradiction.
I cannot help pressing upon you the fact of four respectable Govern-
ment Agents referring to this Keport, knowing it is made and describ-
ing to the same extent though not in such detail the same things, all of
whom must be supposed to be telling a falsehood if this is not a true
story of what is going on. You cannot wonder that the United States
people were not willing that such accurate information should be at
our disposal.
Take page 245, on the 3rd of July. You will remember the principal
hauling out begins on the 20th of June, and there are constant tights
216 ORAL ARGUMENT OF SIR RICHARD WEBSTER, Q C. M. P.
wheu the first cows come iu. I do not know if you have it in your
minds, I read it yesterday, as soon as the cowsbeyin to arrive the fights
are worst of all, — in that time the most dire fights take place to get
possession of these cows; that is, as the Islands used to be.
The hauling of the cows on Zapadnie to-day is extraordinary in contrast with its
appearance here in 1872 at this time, and only a week from the hour of its utmost
limit of expansion. Really, I cannot see much increase since my notes last week,
but snch rusty cows, such somnolent stupid bulls! such an abnormal average as
60 to 75 cows in the harems! while lots of sleeping bulls all around, though only
some 40 or 50 feet away from these harems, where the bulls in charge are so feeble
that they have refused the advances of eager cows repeatedly under my eyes within
less than 20 minutes after I had set a fixed watch on half a dozen right within my
view and near by.
Sir, I have picked those out. That is the same rookery to which one
of the extracts from Mr. Macoun's lieport ai)plies. That is by jio means
an isolated specimen of what the gentleman saw, but may I with
respect, Mr. President, kindly ask the attention of every member of
this Tribunal to this fact: everybody, prior to these years, has described
the tiglits between the bulls as occurring when these cows were com-
ing— as scenes of perpetual fights — the bulls fighting to get their cows.
Would you look at page 385 of tlie United States Counter Case, and
let me read Mr. (Stanley Brown's picture, pofectly fair I dare say, and
you cannot have a better contrast. Ue says :
Any statement to the effect that the occasional occnrrence of large harems indi-
cates a decrease in the available numlier of virile males and hence deterioration of
the rookeries, should be received with great caution, if not entirely ignored. The
bulls play only a secondary part in the formation of harems.
Why, Sir, there is not a single man who has ever been on that island
for four or five seasons who can possibly corroborate that statement.
It is known ])erfectly well; and expert after expert recording the life
of these animals has, for a period of a quarter of a century, negatived
this suggestion.
Senator Morgan. — How could the sleepy lord of the seraglio compel
the allegiance of these great numbers of cows?
Sir KiCHARD Webster. — They do not compel it.
Senator Morgan. — Then what becomes of the question of selection ?
Sir Richard Webster. — If you will pardon my saying so, Senator,
you are not following my proposition. The evidence is that tliey did
not compel it in the year 1890-91, — the evidence is that they used to
compel it.
Senator Morgan. — I thought it was quite their practice.
Sir EiCHARD Webster. — It was their practice. N'ow, they are not
in the condition to do it. The fact of animals — bulls and others —
becoming incompetent for service is perfectly well known, though they
are strong and quarrelsome. All that is perfectly well known. But
what Mr. Stanley Brown is describing is the selection of harems by the
females — not by the buUs at all.
Senator Morgan. — I understood that the evidence and argument
hitherto proceeded on the ground that these old seals compel the alle-
giance of the females.
Sir Richard Webster. — That is exactly so. The whole evidence
is that it was not so in 1890, 1891, 1892. Semitor, I can only submit it
to y(mr judgment on the matter, and I only ask your criticism upon
what I say. The evidence is universal and overwhelming that prior to
the decrease of bulls on these rookeries, the formation of the harems
was by the bulls. The fact spoken to by the United States witnesses
is that in 1890, 1891 and 1892, the bulls did not exercise any promi-
ORAL ARGUMENT OF SIR RICHARD WEBSTER, Q. C. M, P. 211
nent part in the formation of the harems at all. Would you listen to
this afiidavit of Mr. Stanley Brown, the special gentleman sent to
investigate and rei3ort on this matter.
He says:
It ia the cow which takes the initiative. She is in the water beyond the reach or
control of the male, and can select her own point of landiuj:;-. Her manner on coming
ashore is readily distinguished from that of tlie young males which continuously
plav along the sea margin of the breeding grounds. She comes out of the water,
carefully noses or smells the rocks here or there like a dog, and then makes her way
to the bull of her own selecting.
The evidence is that the bull drives her to it, and very often takes
her in his mouth and makes her come and obey him, and chastises her
if she does not lie down.
Mr. Carter. — Where is that evidence?
Sir Richard Webster. — I will give it you in a moment; it has been
given in evidence over and over again.
Lord Hannen. — When on' shore? You seem. Sir Richard, to speak
of it as though the female were out of the water.
Sir KiCHARD Webster. — I think there is actually evidence in some
cases, that the bull even does that.
Now Mr. Stanley Brown says :
In this incipient stage of her career on shore there is but little interference on the
part of the male, but once well away from the water and near the bull she has
chosen, he approaches her, manifests liis pleasure, and greetings are exchanged.
I will not overlook the point, my Lord — I believe instances are given
in the Affidavits of tlie bull even taking the female as she comes to the
edge of the water; but whether that be so or not, immediately on her
coming out of the water, there is as I shall show presently, abundant
evidence. But 1 am dealing now with this statement by way of contrast.
In this incipient stage of her career on shore there is but little interference on the
part of the male, but once well away from the water and near the bull she has
chosen, he approaches her, manifests' his pleasure, and greetings are exchanged.
She then joins the other cows and as soon as dry lies down and goes comfortably to
sleep. I have seen this selective power exercised repeatedly and the result is that
one bull will be especially favored, while those within fifteen or twenty feet will be
ignored.
Senator Morgan. — That brings out the point that I had in my mind :
It seemed to me that an excess of bulls upon the rookeries would be
quite as dangerous to seal-life, pups, and female seals in their battles
and fightings as the proposition you are arguing now, namely, want of
sufficient number.
Sir Richard Webster. — I ask you. Senator, kindly to give your
attention to the matter: when we know enough to be able to say what
is the right and exact proportion so that we may inculcate peace, and
not quarreling among the bulls, and still get the best bulls, perhaps
that is a claim which the United States, from a moral point of view,
may be able to advance. If they are able to advance it, well and good.
But will you kindly, m justice to me remember Avhat the United States
Commissioners have said ? Tlie United States Commissioners have said
that want of sufficient virile males will produce deterioration to the
herd. It is not a question of what ought to be the condition, but what
is the cause of the present condition of the herd?
Senator Morgan. — I do not feel bound by the opinion of the United
States Commissioners or by the opinion of any other man from which I
dissent.
Sir Richard Webster. — Nobody suggests. Senator, that you are
bound by anybody's opinion or view except your own; but I do say, in
218 ORAL ARGUMENT OF SIR RICHARD WEBSTER, Q. C. M. P.
arguing tlie matter I sliould not be performing my duty if I did not
bring tliis into notice.
Senator Morgan. — That is exactly what I am trying to get you to do.
Sir Richard Webster. — My point is this: that when I have shewn
by the testimony that has been read botli by Sir Charles Russell and by
myself, that the selection of the females to form a harem, in the ordinary
life of the seal, was by the male — when I call attention to a respectable
gentleman who describes that in which the male takes no part, I think.
1 am not ill-founded in making the suggestion that the contrast points
strongly in the direction of there not being proper virile power upon
these rookeries.
Senator Morgan. — Neither am I ill founded in trying to find out the
truth about it.
Sir Richard Werster. — I am not conscious of having said anything
which could point in that direction.
Then Mr. Stanley Brown says:
The size of harems, therefore, has of itself,
This is important with reference to the Commissioners' statement.
The size of harems, therefore, has of itself but little to do with the question of the
lack of virile males, but indicates only the selective power of the females.
That is in teeth of the Commissioners' statement which I read this
morning. Now I was challenged by my friends, and quite properly
with reference to what I was referring to.
I refer first to the language of Mr. Bryant, their own witness, at page
385 of Allen's monograph, where says:
Immediately on landing —
that is the females.
they are taken possession of by the nearest males, who compel them to lie down in
the spaces they have reserved for their families. For a few days the females arrive
slowly, but by the 25th of the month thousands land daily.
That is the month of June. Then it goes on :
As soon as the males in the line nearest to the shore get each seven or eight females
in their possession, those higher up watch their op])ortunity and steal them from
them. This they accomplish by seizing the females by the neck as a cat takes her
kitten. Those still higher up pursue the same method until the entire breeding
space is filled. In the average there are about fifteen females to oue beachmaster.
That had already been read. I referred to that when I said evidence
had been already given upon it.
Now in the 10th Census Report of 1881, of which again I say nobody
has ever questioned the accuracy or the truthfulness, from observation,
at page 36, under the heading '^ Organization of the Rookeries",
this is the description of it by Mr. Elliott in his first report.
They
that is the cows
are noticed and received by the males on the waterline stations with attention; they
are alternately coaxed
this is what I had in my mind when I said I thought it pointed to some-
thing which was done almost before the cow left the water, and 1 will
find another reference too.
They are alternately coaxed and urged up on to the rocks, as far as these beach-
masters can do so, by chuckling, whistling, and roaring, and then they are imme-
diately under the most jealous supervision; but owing to the covetous and ambitious
nature of the bulls which occupy these stations to the rear of the water line and
ORAL ARGUMENT OF SIR RICHARD WEBSTER, Q. C. M. P. 219
■waytack, the little cows have a rongh-and-tnmble time of it when they begin to
arrive in small numbers at first; for no sooner is tlie pretty animal fairly established
on the station of male number one, who has welcomed her there, than he, perhaps,
sees another one of her style in the water from whence she has come, and, in obe-
dience to his polygamous feeling, devotes himself anew to coaxing the later arrival,
by that same winning manner so successful in the first case ; then when bull number
two, just back, observes bull number one off guard, he I'enches out with his long
strong neck and picks up the unhappy but passive cow by the scruff of her's just aa
a catdoes a kitten, and deposits her upou his seraglio ground; then bulls number
three and four, and so on, in the vicinity, seeing this higli-handed operation, all
assail one another, especially number two, and for a moment have a tremendous
tight, perhaps lasting half a minute or so, and during this commotion the little cow
is generally moved, or moves, farther back from the water, two or three stations
more, where, when all gets quiet again, she usually remains in peace.
Senator Morgan. — I tliink, only in justice to myself, I should observe
that is the very evidence upon which I ventured to make the sugges-
tion to you that there might possibly be injury to the seal herd from
excess of bulls upon the rookery.
Sir Richard Webster. — I have never, Senator, denied it. It has
no bearing with great respect upon my argument. My argument is
not that there may not be too many, but there may be too few; and I
do not suppose that you Sir would be disposed to question that — that
there may be too few. The point of this is to see whether there are too
few or not, and whether that has been the cause of the decrease.
Now I have read from the evidence with regard to this matter, but
before I go further to Mr. Elliott's report will the Tribunal be kind
enough to oblige me once more by taking volume '6 of the Appendix o±
the British Case. It is part 3. I ask you, Mr. President, to be good
enough to refer to it so that you may see that people were perfectly
conscious of what Mr. Elliott was doing at this Island at the time. I
am going to read, first, from Mr. Goff's Eeport at page 15:
Professor W. H. Elliott, your recent appointee as Treasury Agent has spent the
season here, dividing his time between the two Islands, and giving his entire atten-
tion to the state of the rookeries and the methods used at present in driving and
killing the seals, and his report will, no doubt, be of the utmost importance and of
great value to the department.
Then at the bottom of the same page there is a passage about driving
that need not be read now, but it must be read later on.
And on page 17, the third paragraph:
There is but one authority upon seal life, especially the seals of the Pribilof Islands,
and this is the work of Professor Henry W. Elliott, who surveyed these rookeries in
1872 and 1874, and his work was verified by Lieutenant Maynard and I am satisfied
was as near correct when made as was possible for man to chronicle, but to-day there
is a marked contrast in the condition of now and then.
A little lower down, sir:
To the extreme south-west of the island is the Reef Rookery, reported to have
(by Professor Elliott) 301,000 seals in 1874. It has not over 100,000 seals to-day.
"Garbotch", the adjoining rookery, where the Professor says he stood on Old .John
Rock and saw "10,000 fighting bulls", I can stand and count every bull in sight.
This rookery with the reef is an extending point, etc., on that point.
Then Mr. Murray's Eeport, page 19.
The President. — The figures seem to be excessive, in regard to the
diminution there mentioned.
Sir Richard Webster. — I was not on the question of actual dimi-
nution. I was merely on the question of the knowledge these gentle-
men have of Mr Elliott. Would you please look at page 19? I will
not fail to regard what you say about the actual diminution, Mr. Presi-
220 ORAL ARGUMENT OF SIR RICHARD WEBSTER, Q. C. M. P.
dent. At page 19 is the report of Mr. Murray of the 31st of July 1890,
the last paragraph but two, on that x)age:
The meeting was adjourned from time to time until they had thoronglily discussed
the most important questions raised, and at tlie last meeting, held 23rd May, they
unanimously declared that it was their firm belief and honest opinion that the seals
had diminished and would continue to diminish from year to year, because all the
male seals had been slaughtered without allowing any to grow to maturity for use
on the breeding-ground.
That is Mr. Murray's statement in 1890, perfectly independent of Mr.
Elliott's report, before it had been published, at a meeting, reporting
to his Government from St. George Island of what had been the result
of his investigation in that year, 1890; and that is quite as strong,
though not so valuable in its bearing, and the deductions to which it
leads, as anything in Professor Elliott's report.
The President. — That is not the opinion of Mr. Murray; that is the
opinion of the natives.
Sir EiCHARD Webstek.— I am quite aware of that, Mr. President.
As a matter of fact, it is the opinion of Mr. Murray, too. But I am
not upon that for the moment. Would you kindly look at the next
paragraph :
I made a note of the suggestion on the journal that day, and I am now fully con-
vinced by personal observation that it is only too true, and that the natives were
correct in every particular.
But you, Mr. President, were perfectly right in one sense. I was not
calling attention to it for the purpose of endorsing or proving Mr. Mur-
ray's oj)inion. I do so now because you directed my attention to it.
But the significance of it is this : that long before the report upon which
it has been attempted to throw discredit, had been published, the Treas-
ury agents, reporting independently, had said identically the same
thing in regard to this matter.
Then Lavender. He reported on the 2Gth of July, 1890. You will
find it on page 21. I will not read it again, because I read it this morn-
ing; but I only call your attention to the passage. It begins:
The writer was surprised when he visited the rookeries, to find no young bull seals
upon them.
That was written on the 26th of July, 1890, from St. George's Island
to the Government.
On the 31st of July, at page 48, Nettleton, writing from St. Paul,
says:
In relation to the condition of the seal rookeries and hauling-grounds of this
island, I do not feel called upon to go into details in view of the full and exhaustive
manner in which the subject is treated in your Report of this year, and also in view
of the forthcoming Report of Professor H. W. Elliott, who was sent by the Depart-
ment especially to examine and report upon the condition of seal life on this and the
Island of St. George.
Does any man believe that if Mr. Elliott's report did not represent
fairly what it was, that some of these othei- agents who had been
eyewitnesses of the fact which he had described, and had partially
described it themselves, would not have been called upon immediately
to report as to the real facts by the United States Government? Not
one of these is asked to report — not one of the experienced men, but
an entirely fresh mind is sent in the year 1891, who had no experience
whatever of the seal islands.
The President. — Mr. Nettleton did not make his report to the Gov-
ernment, but to Mr. Goff.
Sir EiCHARD Webster. — He reports to Mr. Golf. From my point
of view it makes no difierence, because it is intended to be forwarded to
ORAL ARGUMENT OF SIR RICHARD WEBSTER, Q. C. M. P. 221
the Government, and it is so forwarded. The duty of each of them is
to report throngli their chief to the Government. I quite admit that
it shoiihl be des(u ibed as a report by Mr. Nettletou to Mr. Goft"; but it
came to the United States Treasury Department.
Now, Sir, as I have touched upon this, will the Tribunal kindly favor
me by letting me call their attention to the character of this report of
Mr. Elliott's s I am making a very great draft uj^on their patience, but
it really is important that it should be understood. I will not refer to
it except in connection with one subject afterwards; but if you, Mr.
President, will be kind enough to take it before you, you will hnd that
in his letter to Mr. '\\'iudom of the 17th of jSTovember, he describes his
appointment, and he says he went there supi)Osing he should find every-
thing* to be occasioned by pelagic sealing; and it is the strongest evi-
dence in favor of the impartiality of this report that nobody condemns
pelagic sealing more than Mr. Elliott does. He is perfectly entitled to
do it from the point of view of regarding what he was reporting, that is
to say, the interest of the United States. At the first page in Eoman
numerals, just underneath the date, the second paragraph begins:
I may as well frankly confess, at the outset, that I was wholly unaware of the
extraordinary state of affairs which stared nie in the face at the moment of my first
landing, last Mav, on the Seal Islands of Alaska. I eniharked npon this mission with
a faint apjirehension of viewing anything more than a decided diminution of the
Pribilof rookeries, caused by ]ie)agic poaching during the last five or six years.
But from tbe moment of my lauding at St. Paul Island on the 2Ist of last May,
until the close of the breeding season those famous "rookeries" and "hauling
grounds" of the furseal thereon, and of St. George Island, too, began to declare and
have declared to my astonished senses the fact that their utter ruin and extermina-
tion is only a question of a lew short years from date, unless prompt and thorough
measures of relief and protection are at once ordered on sea and on land by the
Treasury Department, and enforced by it.
Quickly realizing after my arrival upon these islands that a remarkable change for
the worse had taken place since my finished work of 1874 was given to the public iu
that same year, and the year also of my last survey of those rookeries, I took the
field at once, carrying hourly and daily with me a series of note books opened under
the following heads:
And those you are aware. Sir, are all verbatim annexed to the Eeport.
AVould you let me call your attention to iiage 4. He had cited from his
report of 1872-74. I read from the middle of page 4:
In 1872-74 I observed that all the young male seals needed for the annual quota, of
75,000 or 90,000 as it was ordered in the latter year, were easily obtained every season,
between the 1st of June and the 20th of .luly following, from the "hauling grounds"
of "Tolstoi", "Lukanuon" and " Z(dtoi Sands" — from these hauling grounds adja-
cent to the "rookeries" or breeding grounds of " Tolstoi", "Lukanuon ", "Reef" and
" Garbotch". All of these points of supply being not more than one and a half miles
distant from the St. Paul killings grounds — the " Tolstoi" drive being less than 600
feet away.
Then he refers to his own work, at page 5:
Therefore, when summing up in my published work of 1872-1874, 1 was positive in
declaring that although I was firmly convincetl that no increase to the then existing
number of seals on these Islands would follow any efibrt that we juight make (giving
my reasons in detail for so believing), yet I was as firmly satisfied that as matters
were then conducted, nothing was being done which would injure the regular annual
supply of male life necessary for the full demand of the rookeries. I then declared
"that provided matters are conducted on the seal-islands in the future, as thci/ are
io-day 100,000 male seals, under the age of five years, and over one, may be safely
taken every year from the Pribilof Islands without the slightest injury to the regu-
lar birth rates, or natural increase thereon: provided also that the fnr-seals are not
visited by any plauue, or pests, or any abnormal cause for their destruction, which
might be beyond the control of men.
Therefore I am justified in saying that he starts with convictions,
j)roperly expressed, in favor of the fact that his previous report had
been well founded.
222 ORAL ARGUMENT OF SIR RICHARD WEBSTER, Q. C. M. P.
Then at the bottom of page 5:
Sixteen years have elapsed since that work was finished: its accuracy as to the
statements of fact then published was at that time unquestioned on these islands,
au<l it is to-day freely acknowledged there: but what has been the logic of events?
Why is it that wo find now only a scant tenth of the number of young male seals
which I saw there in 1872? When did this work of decrease and destruction so
marked on the breeding grounds there, begin? And how? This answer follows:
1st. From overdriving without heeding its warning, first begun in 1879, dropped
then, until 1882, then suddenly renewed again with increased energy from year to
year, until the end is abruptly reached, this season of 1890.
2nd. From the shooting of fur-seals (chiefly females) in the open waters of the
North Pacific Ocean and Behring Sea, begun as a business in 1888, and continued to
date.
Mr. Foster.— That should be 1886.
Sir Richard Webster. — I did not know.
Mr. Foster. — It is a typographical error, I mean.
Sir Richard Webster. — Oh, I beg your pardon. I am much
obliged for the correction. I thought Mr. Elliott was referring to the
fact of the small number in Behring Sea, but I am much obliged to Mr.
Foster. I proceed :
Thus the seal life caudle has been literally "burning at both ends" during the last
five years.
That day in 1879, when it became necessary to send a sealing gang from St. Paul
village over to Zapaduie to regularly drive from that hitherto untouched reserve,
was the day that danger first appeared in tangible form since 1870 — since 1857 for
that matter.
The fact, then, that that abundant source of supply which had served so well and
steadily since 1870-1881, should fail to yield its accustomed returns to the drivers —
that fact ought to have aroused some comment.
Then on page 7 :
I can see now, in the light of the record of the work of sixteen consecutive years
of sealing, very clearly one or two points which were wholly invisible to my sight
in 1872-1874.
This does not appear to be a partisan report.
I can see now what that effect of driving overland is upon the physical well being
of a normal fur-seal, and from that sight, feel wamuited in taking the following
ground.
The least reflection will declare to an observer that while a fur-seal moves easier
on land and freer than any or all other seals, yet, at the same time it is an unusual
and laborious effort, even when it is voluntary : therefore, when thousands of young
male seals are suddenly aroused to their utmost power of land locomotion, over
rough, sharp rocks, rolling clinker stones, deep, loose land, mossy tussocks and
other equally severe impedimenta, they in their fright exert themselves violently,
crowd in confused sweltering heaps one upon the other so that many of them are
"smothered" to death and in this manner of most extraordinary efiort to be urged
along over stretches of unbroken miles, they are obliged to use muscles and nerves
that nature never intended them to use, and which are not fitted for the action.
Then occurs another ])assage with reference to driving. I need not
read it through, if the Tribunal will kindly run their eye through it.
There is a passage at the bottom :
When they arrive on the killing grounds after four or five hours of this distressing
effort on their part, they are then suddenly cooled ofl' for the last time prior to the
final ordeal of clubbing: then when driven up into the last surround or "pod" as
the seals are spared from cause of being unlit to take, too big or too little, bitten,
etc., they are permitted to go off from the killing ground back to the sea, outwardly
unhurt, most of them ; but I am now satisfied that they sustain, iu a vast majority
of cases, internal injuries of greater or less degree, that remain to work physical
disability or death thereafter to nearly every seal thus released, and certain destruc-
tion of its virility and courage necessary for a station on the rookery even if it can
possibly run this gauntlet of driving throughout every sealing season for five or six
consecutive years ; driven over and over again as it is during each one of these sealing
seasons.
Mr. Elliott is not alone in this opinion, Mr. President, by any means.
I will show you corroboration of this. I merely mention this for the
purpose of bringing to your mind what will be the effect, the double
ORAL ARGUMENT OF SIR RICHARD WEBSTER, Q. C. M. P. 223
effect, of killing: off all tlie bijrger seals, and at the same time redriving
those that are allowed to grow up, if they happen to escape.
1 ought perhaps to read the last paragraph ou page 8:
Witli this knowledge, tlaen, the full effect of " driving" becomes apparent and that
result of slowly but surely robbing the rookeries of a lull and substantial supply of
fresh young male blood, demanded by nature imperatively, for their support up to
the standard of full expansion (such as I recorded in 1872-LS74) — that result began,
it now seems clear, to set in from the very begiuuiug, 20 years ago under the present
system.
Then lower down on tlie same page:
Naturally enough, being so long away from the field, on reading Mr. Charles J.
Goff's report for the season's work of 1889, I at once,juni])ed to the conclusion that
the pelagic sealing, the poaching of 188B-1889 was the sole cause for that shrinkage
which he declared manifest, on those rookeries and hauling grounds of the Pribilof
Islands.
Mr. Justice Harlan. — Did Mr. Goff make two reports?
Sir EiCHARD Webster. — One has been produced to us. Sir. I
referred to it this morning at page 84 of the hrst Volume of the
Appendix to the Counter Case. Whether he made another or not, I
do not know. If he did make another, it has not been produced; but
I should like, as the Judge has put that question to me, to read a pas-
sage from this very report, where after referring to the pelagic sealers
as pirates, anticipating the argument of Mr. Carter, he says:
If these piratical vessels were allowed to butcher the seals regardless of sex and
age, the seals of Alaska will soon be exterminated. The prospeiity of these world-
renowned rookeries is fast fading away under the present annual catch allowed by
law, and this indiscreet slaughter now being waged in these waters will only hasten
the end of the furseals of the Pribilof Islands.
Therefore I call attention to the fact that the reports made by Mr.
Goft' in the year 18U0 — most careful reports — with regard to the effect
of driving, as you will see later ou, and corroborating Mr. Elliott with
regard to the absence of bull seals, are made by peo])Ie who are cer-
taiuly as desirous as they can be of supx)orting the United States case.
Senator ]\Iorgan. — Sir Kichard, I have made no harsh commentary
upon Mr. Elliott while this case has been going on, and I do not pro-
pose to make any now; but it is a subject that ought to be inquired
into, whether he, having recommended that 100,000 seals could be
taken profitably to the seal herd and to the United States —
Sir Kichard Webster. — In 1878.
Senator Morgan. — In 1878; having recommended that, and the Gov-
ernment having observed the policy which he recommended without
question at all, is he not particularly interested in showing that the
loss of numbers in the seal herd was not due to following his advice,
but was due to some other cause?
Sir EiCHARD Webster. — I should have thought so, and he should
have endeavored to put it upon pelagic sealing; but I beg to observe
that it is because they have gone on taking the 100,000 annually, that
he honestly and candidly said he was wrong.
Senator Morgan. — I do not disi)ute that at all; but it is a little
unfortunate that the Government, having followed his advice, has no
right now to question his statements or opinions about it.
Sir Richard Webster. — It is not a question of no right to criticise
his ojnnions. They have every right. My learned friends have not heard
from me a single word to the effect that they have not the right to crit-
icise his opinions. 1 was prepared to show the circumstances under
which and the knowledge with which Mr, Elliott reported, and you know
what Mr. Phelps said yesterday in regard to the matter. Criticise thia
224 ORAL ARGUMENT OF SIR RICHARD WEBSTER, Q. C. M. P.
report as iiincli as you lilce. Say the oi)iiiions are wroTi,![r; but as a rec-
ord of wliat was seen in the year 189v) it is lioiiest and truthlul, and
being honest and trntht'ul, it must be regared by tliis Tribunal. 1 ha\'e
never suggested, Mr. Senator M(n\gan — I say it "witli great respect, — I
liave never suggested any doubt of the rii;ht on the part of members of
the Tribunal to question the opinions of any of these gentlemen, Dr.
Dawson, Sir G. Baden-Powell, JMr. Palmer, Mr. Elliott, Mr. Goff— any of
them; but at the same time the Tribunal have got to be satisfied that
it is this pelagic sealing which has caused tliis decrease. I will show
that it cannot be. But I ara at present following out the line indicated
at page 34J) of the United States Commissioners Report:
The life of the seal berd, then, flepending as it nnquestionahly does on the con-
stancy of the number of birtlis, can be endangered from two directions: First, from
the killing of fertile females; and, second, Irom the excessive killing of males, car-
ried to sucli an extent as to prevent the presence of the necessary number of virile
males on the breeding rookeries.
That is not suggested to be otherwise than a fair test, unless the
United States Commissioners, who are belauded by my learned friends
in the most glowing terms, are to be thrown overboard at the last
moment. I have read today warning after warning that the 100,0(10
seals were too many. It is no answer to my argument to say Mr. Elliott
made a mistake in 1874. The Tribunal cannot absolve themselves from
any responsibility by saying that it was Mr. Elliott's mistake or any-
body's mistake. I am calling attention to these facts to show that the
absence of virile males on these rookeries has been an all powerful cause
of deterioration of the seal race and of the absence of the uunjber ol
seals from the islands.
Mr. President, I do not know whether you think I am exceeding my
duty if I respectfully ask this Tribunal to be good enough to read this
report for themselves and judge of it; because in my respectful submis-
sion to the Tribunal, the best judgment is obtained by reading the
whole, and I am perfectly willing that it sliall be considered that I am
only calling attention to specimens, and thatanythingthatmay be said
against me, or in any way in wiiich it is thought I have been overstat-
ing the matter, shall be judged by the contents. But there are one or
two passages to which I ought to call attention. If you will kindly
look at page 88, you will see the status of 187li and the status of 181H)
compared in i^arallel columns, showing that the natural incidents of seal
life in connection with the arrival and the dates at which they came to
the island are shown to occur at the same time, and about the same
period in the year 1890 as before:
Status of 1872.
1. On the rookery ground the Bnlls
were all by June 1st.
2. Located on this ground then no
further apart than 6 to 10 leet, and
3. were very active, incessantly fight-
ing with the
4. thousands upon tens of thousands of
"12 bulls " or jjolseacatchie, wliicli were
then trying to laud upon the breeding
provoking and sus-
a constant fight and turmoil
there, but being almost iu\ariably
whipped oft" by the old bulls, stationed
thero.
belt of sea-margin
taiuing
Status of 1890.
1. On the rookery grounds the Bnlls
were all by June Ist.
2. Located on this ground, now from 15
to 150 ieet apart and are inert and
3. somolent: I have not seen a single
fight between tbe bulls yet.
4. Not a single "1/2 biill" or polsea-
catchie atteinptiiig to land and serve the
cows — not a single one liavi^ I been able
to observe — in fact there are none left:
those that exist have been ruined as
breeders from the eliects of driving: and
several thousand of these broken spirited
bulls, old and young now loafing on the
outskirts of these rookeries, and hauling
out with the small holhischickie on the
sand and rock margins.
ORAL ARGUMENT OF SIR RICHARD WEBSTER, Q. C. M. P. 225
Of course, the pliotooraplis in this case corroborate that to the letter,
and the i)ictiire which Mr. Stanley Brown gave exactly corroborates it,
that these bulls were not the tightiug-, quarreling bulls that had been
the typical feature of these rookeries before.
5. Cows began to arrive on the breccl-
ing gronnds by 4tli to 6th of June, all
arrived as a rule by July 10, and were
5. Cows be^an to arrive on the breed-
ing grounds by 4th to 6th of June: and
all arrived in good form by July and
were
6. located on the brecdiug-ground in
compact solid masses uniformly distrib-
uted over a given area of ground no mat-
ter how largo or small.
6. located on tlie breeding grounds in
scattered harems, solidly here, one or two
harems, then a dozen or so families scat-
tered over twice and thrice as much
ground as they should occupy if massed
as in 1872-74. The scant supply of, and
wide stations and feebleness of the bulls
is undoubtedly the reason for this strik-
ing change in their distribution as they
ordered it in 1872-74.
If this is not a fair statement, of the facts, why have not any of the
experienced people been called to contradict it. It is all very well to
send a gentleman, however distinguished and however honest, to make
his observations, which in fact corroborate this; but where are the
experienced agents who can contradict it, and who have not been called?
general average of 45 or 50 cows
7. A general average of 15 cows to 1
bull was the best understanding : once in
a while a peculiar configuration of the
breeding ground enabled one bull the
chance to pen up 35 or 45 cows, but it was
seldom witnessed.
7- A _
to 1 bull is the best estimate that can be
made to-day : there are so many harems
of 60 and 75 cows in charge of one bull
to each, and frequently single harems of
100 to 120 : cows that it makes the gen-
eral average of 45 to 50 very conserva-
tive.
Mr. President, you will not have forgotten that Mr. Stanley Brown,
in the affidavit which I read today, referred to the harems running up
to 75 cows in 1891. Kow here the same statement which, if the alle-
gation had been untrue, persons there in the year 1890 could have
contradicted it. No amount of statement that there are fewer animals
on the islands contradicts the point of this remark, which is directed
to the general virility of the bulls and the attraction that that bull
affords to females who are influenced by the sexual passion.
Would you look, Mr. President, at the last comparison, No. 8, at the
bottom of page 89 1
The President. — We have read it.
Sir Richard Webster. — Then if you will turn back to page 74.
This is in answer to the criticism by Sena.tor Morgan of this man. I
read from the bottom of the page :
I was right in then assuming that no increase could be noted over the record of
1872-74; but I was wrong in then believing that no injury to the regular supply of
young male life necessary for the full support of the breeding grounds, would follow
from the driving and killing of the holluschickie as conducted : also the deadly work
of the pelagic sealer was not suggested in any serious sense sixteen years ago, and
I did not take it into calculation. I have given, in my letter of introduction, the
reason why this driving of the liolluschickie, has been so destructive to young male
seal life — a reason which I could not grasp in 1872-74 since it required time and
experience to develop the fact beyond argument and contradiction. It is easy to see
now in the clear light of the record that had there been no poaching at sea and had
every young male seal been taken in every drive made from the outset in 1871, over
one year old and under five, the annual quota of 100,000 would have been easily filled
without injury whatsoever in less than twenty working days from the 14th of every
June, with only one quarter of the driving necessary uudfsr the past and present
order of culling out the largest seals for slaughter, and releasing the smaller ones
jFrom each drive, when on the killing grounds: — in other words, taking all the young
B S, PT XIV 15
226 ORAL ARGUMENT OF SIR RICHARD WEBSTER, Q. C. M. P.
male seal as driven, over one year old and under five years wonld have saved on an
average for every year the lives of at least 50,000 to 60,000 holluscliickie, while those
spared from the club annually, during the last 20 years have nevertheless perished,
or, surviving, were yet rendered worthless for rookerj' service from the immediate
or subsequent effect of severe overland driving.
When I remind you ag^ain, Mr. President, in this connection that
owing to the complaint with regard to the size of the skins, and the
evidence shows they were liilling during these years every seal that
was big enough to kill.
Tlie President. — Do you mean that according to Mr. Elliott's obser-
vation and impression.
Sir Richard Webster. — In 1890.
The President. — Altogether — in 1800 if you like — that the driving
in the Eussian time for instance, would have been less violent and less
rough than it is now.
Sir Richard Webster. — The evidence is that they have been driven
much further and driven much more frequently. I will not neglect that
point, Mr. President. They have been driven much further and driven
much more frequently, and the same seal has been driven for this long
distance more than once — several times during the same year, and it
follows from this simple reason the Islands were not M'orse from 1830 to
1870 than they were from 1870 to 1890. During the period from 1830
to 1870, ex conccssis, there was no pelagic sealing. The Russian average
is under 40,000. It is a considerable over statement to speak of it, I
believe, as 40,000 over those years, and consequently less driving was
required and excluding the consequences of raids and the taking of the
pups referred to in the evidence to daj'^, it is not that the same driving
had a greater eftect — Mr. Elliott never suggested that for a moment.
The fact is, which Mr. Elliott and other persons equally independent
and equally observant call attention to, that driving has been carried
on in late years in a way that would injure seals to a greater extent
than it has been before.
Now on page 91 you will see the conclusion:
It seems from the foregoing surveys that at the close of the season of 1890, there
are still existing upon the Pribilof rookeries 959,000 seals, old and young and pups
of this year's birth, or about one third of the whole number of breeding seals and
young recorded as being there in -74, how then can they be so near the danger of
extermination, though they arc in danger of it?
The explanation is as follows :
1. There is but one breeding bull now upon the rookery ground where there were
fifteen in 1872: and the bulls of to-day are nearly all old and many positively
impotent.
2. This decrease of virile male life on the breeding grounds causes the normal
ratio of 15 or 20 females to a male as in 1872-74 now to reach the unnatural ratio of
50 to even 100 females to an old and enfeebled male.
3. There is no appreciable number of young males left alive to-day on these ''haul-
ing" or non-breeding grounds to take their place on the breeding grounds, which
are old enough for that jiurpose, or will be old enough if not disturbed by man, even
if left alone for the next five years.
4. Meanwhile the natural enemies of the fur-seal are just as numerous in the sea
and ocean as they ever were — the killer-whale and the shark are feeding iipon them
just as they did in 1872-74.
5. Therefore, we have destroyed by land and by sea the equilibrium which nature
had establisiied in 1868 on these rookeries, and Ave must now restore it, or no other
result can follow save that of swift extermination.
6. That condition of 1868, being restored, then that surplus male life can be taken
again under better regulations than those of 1870, and the pelagic sealing can be
restricted to proper limits, so as to enable the fur-markets of the world to have a
regular supply for all time to come.
The President. — It would be inferred from that that a regular sup-
ply would reach a certain number only — whether it is taken by sea or
by land.
ORAL ARGUMENT OF SIR RICHARD WEBSTER, Q. C. M. P. 227
Sir EiriiAED Webster. — Yes, tliat must be so.
The President. — A limitation of the number. How could you limit
the number at sea.
Sir liiCHAED Webster. — We know perfectly well that that limits
itself to a very large extent, but 1 am sure you will allow your mind to
follow the line on which I desire to argue. I point out that the diminu-
tion of the seal life upon the islands is not due and cannot be due to
pelagic sealing-.
Lord Hannen. — That is with reference to what regulations should be
made, and then arises the difficulty of api)lying it.
Sir llicHARD Webster. — I will point it out, of course, at the end,
but perhaps I may be permitted to make the observations before.
Our contention is it is not intended you are to regulate pelagic seal-
ing so as to enable 100,000 or any other maximum nund)er to be taken
upon the islands. You are not to regulate pelagic sealing to allow au
excessive quantity to be killed upon the islands. You are to regulate
so as to do what is necessary, as far as pelagic sealing is concerned, to
prevent the extermination of the herd. That does not mean that they
are to exterminate them upon the islands; and you, Mr. President, have
been so good as to show you have been following uie. Take this case.
Suppose it is true there is only one breeding bull instead of 15, it means
that a large number of cows will not be effectually served, and a great
many more cows will fail to bear pups, and consequently many of the
cows will not come back to the islands again, by reason of not having
a pup, and therefore not having the instinct which induces them to
return. This has a direct bearing on the question of the maintenance
of sufficient supply of virile bulls. Now page 104 he refers to the
driving:
Ever since 1879-82 tlie siirplxis young male seal life has been sensibly feeling the
pressure of the overland death drive, and tlie club; harder and harder became this
^vrctched driving to get the (luota in 1883-84; linally when 1886 arrived, every nook
and cranny on these islands that had hitherto been visited by the "holluschickle "
in peace was now daily searched out. — close up back of, and against the breeding
rookeries, under every clift" wall by the sea, over to South- West Point, and to Otter
Island, and even the little islet, Seevitchik Kamman, under the lee of the Reef was
regularly hunted out.
I need not have read that passage in such detail, but I will tell you
how 1 will deal with that part of the case. I shall show you by the
reports of Mr. Elliott, I shall show you by the report of Mr. Goff, I shall
show you by the report of Mr. Murray, that instead of being able to
get from 50 to GO per cent killable seals out of a drive they were only
able to get 14, 15, and IG per cent.
They were turning back as much as from 8G toOOper cent of the seals
driven, so that the youngest seals and those less able to bear the strain
of driving were being rapidly driven to force up this quota of 100,000
seals out of the su})ply that was on the islands. I do not hesitate to
put before the Tribunal that that does mean a serious injury to the life
of a seal; and ai)plying all general i)rinciples the seal is not likely to be
such a good bull when he comes to the time of service, as he would be
if not over-driven.
The President. — How do you explain the quota? If there are less
young seals one would think the i^roportiou of those taken and kept
would have been smaller.
Sir EiCHARD Webster. — That is exactly the point to which I desire
to bring your mind. If it was true tliat pelagic sealing year by year was
liilUng the pups, the proportion of the young-, or one-year-oldj to the
228 ORAL ARGUMENT OF SIR RICHARD WEBSTER, Q. C. M. P.
four and five-years-old, would have been lessening, and you would Lave
had more large seals in i3roi)ortion. Now, M'li;it do we find. It is in
evidence that there are fewer four or five-year-old, and a large propor-
tion of pups, and that shows, therefore, that some other cause than the
death of the pups, or the death of the mother and pups, is affecting
seal life.
The President. — It shows something which has iDrevented it, but
if there are so many young ones that i)roves that the old bulls do their
service.
Sir EiCHARD Webster. — May I point this out. If I do not make it
clear I am sure you will ask me to repeat it. I say the evidence shows
pups of one year and two years old are being constantly driven. I say
the evidence shows the increasing difficulty of getting a four or five-
year old seal. They find a much larger proportion of one and two-
year-old seals amongthose driven, that is to say, something has happened
wliich prevents seals reaching four or five years, and it must be one of
two things that almost every seal of that age is killed, if the driving
these young seals prevents them coming to the age of four or five —
there is abundant testimony on this, and do not think it is my imagina-
tion, because I have not imagined a single thing in this case — I am
merely pointing out, supposing in the year 1890 they drive 10,000 seals,
and in order to get enough big seals they turn back 80 per cent; and
suppose in 1891, driving the same number of seals in order to get an
equal number they have to drive them twice and turn back 90 per cent,
I say to you as a proposition of mathematics, if the decrease in the total
number, had been caused by the death of pups, you would have the
proportion of three and four-year-old seals, to the pups, increasing
instead of decreasing, whereas if you find in the following year that
the proportion of three and four year old seals, or larger seals, has
diminished, it means that the one or two year old seals have died or
not come to maturity. I challenge criticism upon that argument.
I say that anybody who will look at this thing fairly and impartially
and judicially will be forced to the conclusion that the killing of 30,000
mothers and 30,000 pups in the year they are born will increase the
proportion of old seals to be found in the herd next year, and that there-
fore, if you find that, instead of it being a larger proportion of 4 or 5
year old or 3 or 4 year old, a constantly diminishing proportion, some-
thing else is diminishing the numbers besides the killing of the pups.
I know I speak to gentlemen who are i)erfectly comijetent to criticize
any argument I may address to them and that is an argument of which
I invite criticism.
The President. — You have made your construction very clear.
Sir EiCHARD Webster. — Now, I will digress for a moment, and you
will not object as it is in consequence of what you have said, in order
to call attention to what Mr. Goff said on this i)articular point; and
the passage I lefer to today, at page 15, is directly in point on your
question. It is the third part, page 15, at the bottom of that page.
Now, in opening the season it is customary to secure all the two-year-olds and
upwards ])ossible before the yearlings begin to fill up the hauling-grouuds and mix
witli the killable seals. By so doing it is much easier to do the work, and the year-
lings are not tortured by being driven and redriven to the killing-grounds. Hereto-
fore it was seldom that more than 15 per cent of all the seals driven the latter part
of June and the first iew days in July were too small to be killed, but this season
the case was reversed, and in many instances 80 to 85 per cent were turned away.
The accompanying percentage examples will show the dis])osition of this year's
drive. The first killing of fur-seals by the lessees was on the 6th of June, and the
scarcity of killable seals was apj)arent to all.
ORAL ARGUMENT OP SIR RICHARD WEBSTER, Q. C. M. P. 229
Kow, tin's is by the geiitleinan wlio Las to inspect the drives and
make the return to the Government in regard to that matter,
I call attention to that. It must be due to the fact that something
has happened to the two-year-old seals of the year before or the three-
year-old seals of the year before. Somehow or other the seals which
have been two and three years old in the year 1889 did not appear in
the same proportion as three- or four-year-old seals in 1890.
Now, what does that point to? It points to a death or diminution of
the older seals in that year.
Mr. Carter. — By redriving?
Sir Richard Webster. — Yes, by redriving.
Mr. Carter. — But there was not any redriving in 1889.
Sir KiCHARD Webster. — Forgive me; this Report is written in the
year 1890, and if there was no redriving in 1889, it is the strongest
corroboration of what I say.
Mr. Carter. — I was not speaking of any argument to be derived
from it, but the fact.
Sir Richard Webster. — In order that I may not appear to be
taking it from Mr. Carter, because I think he will lind that it is not
quite accurate, "we have it now suggested that redriving never began
till 1889.
Mr. Carter.— JSTo; 1890.
Sir Richard Webster. — You said 1889; but 1890 will make it
stronger. Tliat is what Mr. Goft" says. I will not be deflected from
my point. I beg my learned friends' pardon ; I care not when redriv-
ing began. Whatever it was, it was not the death of the piip from
jielagic sealing; it is something which x^revented the three-year-olds
being four-year-olds, and the four-year-olds being five-year-olds.
Would you look, Mr. President, if it is not nnduly troubling you, at
the following passages?
The season closed ou the 20th of July, and the drives iu July show a decided
increase in the perceutaoes of small seals turned away, and a decrease iu the killa-
hles over the drives of June, demonstrating con(lusi\'ely that there were hut few
killahle seals arriving, and that the larger part of those returning to the islands
were the pups of last year. The average daily killing for the season was 400, or a
daily average of 522 including only the days worked.
In 1889 the average daily killing from 1st of June to the 20th of July inclusive
was 1,516, or a daily average of 1,974 including only the days Avorkod. With this
undeniable decrease in meiclmntalde seals, and knowing the impoverished condition
of the rookeries and hauling grounds, and believing it to be inimical to the best
interest of the Government to extend the time for killing beyond the 20th of July,
I adhered to the letter and spirit of your instructions to me, and closed the killing
season ou the 20th of July, against the bitter protestations of Mr. George R. Tingle,
General Manager for the lessees;
he was the gentleman who said everything was going on all right.
His communication to me upon the subject and my reply are enclosed. Had there
been a reasonable probability of the lessees securing their qiiola of 50,000 seals I
should have deemed it my duty to extend the time for killing to the 31st of July.
The killing of the 6th of June, the first of the season, Avas from the Reef Rookery,
with a drive of about 700 seals; the total killed, 116,83 1/2 per cent, being turned
away as too small.
Will any man wlio values his position in arguing suggest that the
larger proportion of smaller seals could possibly be produced by pelagic
sealing? It is obvious that it must have been something which has
affected the length of life of the two- and three-year old seals. That
is perfectly plain.
On the 11th of June, the drive was from the Reef Rookery, about 1,000; total
killed, 574 ; 42 1/2 per cent, turned awiiy. On the, 24tli of June the drive was from the
Reef Rookery and Zoltoi hauling grounds combined, and about 141 were driven;
230 ORAL ARGUMENT OP SIR RICHARD WEBSTER, Q. C. M. P.
total killed, 20G ; 85 1/2 per cent, turned away. This exhausted Zoltoi hauliug grounds
for a period of twenty cue days, and it was not available until tlie 19th of July,
when again, in connection with the Reef Rookery, the last drive was made, and about
3,956 seals were driven; 556 were killed, and 86 per cent turned away. The seals
turned away from the several drives invariably returned to the hauling grounds and
rookery from which they were driven only to be redriven to the killing held and
culled of the few killables that chanced to join them upon their return to the sea
from each drive. By referring to the Table marked D., showing the daily killing
for this year, and also comparing the same with that of last year, yon will see that
from all of the drives the same percentages were turned away as from those I have
cited.
We opened the season by a drive from the Reef Rookery, and turned away 83 1/2
per cent., when we sliould have turned away about 15 per cent, of the seals driven,
and we closed the season by turning away 86 per cent.
I commend this to my learned friend, Mr. Carter.
A fact which proves to every impartial mind that we were redriving the yearlings,
and considering the number of skins obtained that it was impossible to secure the
number allowed by the lease, that Ave were merelj' torturing the young seals, injuring
the future life and vitality of the breeding rookeries to the detriment of the lessees,
natives, and the Government.
The contention is, and it is true, that if you kill a mother with the
pup dependent upon her, the pup will die and will not get to be one
year or even six months old. It is obvious if this is true, that they
find this enormously increasing- proportion of puj)s, something is
hai)pening to the two-year olds.
The President. — Is Mr. Golf still in office on the Islands?
General Foster. — No, he is not.
The President. — He has retired ?
Sir EiCHARD Webster. — ISIow at page 16 he has made an affidavit
for the United States, and there is no suggestion that Mr. Goft" is not
a witness or a gentleman who has told the truth in these Eeports.
Whether or not he may have been too lenient to the lessees I do not
care. It is very likely that the lessees were allowed too much, but the
fact is this, that these facts — and they are facts — could have been con-
tradicted by dozens of persons, if they were not the truth. Would you
let me read to the end of that page, if you please?
It is evident that many preying evils upon seal life — the killing of the seals in
the Pacific Ocean along the Aleutian Islands and as they come through the passes to
Behriug Sea by the pirates in these waters, and the indiscriminate slaughter upon
the Islands regardless of the future life of the breeding rookeries have at last with
their combined destructive power reduced these rookeries to their present impover-
ished condition to such an unequal distribution of ages and sexes that it is but a
question of a few years, unless immediately attended to before the seal family of the
Pribilof group of islands will be a thing of the past.
The President. — I suppose " pirates in the passes" are.
Sir EiCHARD Webster. — The pelagic sealers. It is only a state-
ment that they seal en route, and catch them as they are coming to the
Pribilof Islands.
Senator Morgan. — Caught them in the i)asses.
Sir EiCHARD Webster. — No, not that they caught them in the
passes, but after they have passed throngh. It is a comjjendious
expression.
Mr. President, there is no suggestion of which there is any record in
these papers — unless made in some way which I am not cognizant of —
with reference to Mr. Goff Avhich can affect his testimony. That the
United States did not like Mr. Golf for telling the truth or thought he
was too lenient to the lessees does not militate in any way against the
statement of fact. Mind you, this is s])okei) to by the independent
observer Mr. Elliott who went and saw these things himself and never
wrote his Eeport until long after this was written. I should think there
ORAL ARGUMENT OF SIR RICHARD WEBSTER, Q. C. M. P. 231
could be uo greater testimony to tlie truth of tliese facts than that Mr.
Goft' was no longer in the employ of the United States Government in
consequence.
General Foster. — I do not want my remark to be understood as
meaning he was dismissed by the Government.
Sir KiciTARD Webster. — That is a perfectly fair observation.
General Foster. — In fiict, until very recently he was in the employ
of the Government. I am not sure he is not now, but till recently he
was in another capacity.
Sir Richard Webster. — What I mean is, if there is anything to be
said against the position of this man, it should be said openly, but now
we know that JNIr. Goft' is a gentleman who from his position will be
regarded as telling the truth. This was said in July 1890 and Mr.
Elliotts report I think is the 17th November.
The President. — He Avas writing it probably at the same time.
Sir Richard Webster. — Yes for he refers to things that happened
after this date, and various dates in his diaries, and from the point of
view of corroboration, 1 submit it is extremely important. Now, Mr.
President, I have only to call attention to the driving-, but I am afraid
that I have reached my time.
The President, — You can do it if it will not take too long-.
Sir Richard Webster. — Well, Sir, I am in your hands, but I am
afraid I could not do it under twenty minutes at least.
The President. — Then we will take it on Tuesday, at 11,30.
During- the temporary absence of Mr. Cunynghame the Tribunal
authorizes Mr. Henry Hannen Barrister at Law to x)erform his duties.
[Adjourued till Tuesday the 20th Juue at 11,30]
FORTY-FIRST DAY, JUNE 20™, 1893.
Sir EiCHA_RD Webster. — I bave but one other concluding subject to
touch, Mr. President, in any amount of detail; and you will remember.
Sir, that I had addressed this Tribunal with reference to the existing-
conditions of the Islands, and had argued to the best of my ability,
citing numerous passages of the evidence, that there is the strongest
possible testimony to show that the condition of the Islands in the years
subsequent to 188G, and I niiglit even say earlier than that, was due to
the reckless killing of the male-life for a long series of years. I know
or I believe the Tribunal will be good enough to read fin- themselves the
passages in Mr. Elliott's Keport that bear upon this; but, in order to
complete my statement, I will enumerate the pages that they may api>ear
upon the note.
You will remember, Mr. President, that two features of active male
life upon those Rookeries are figiits among the males and a ]>roportion
as we contend of not more than 15 to 20 females to each male bull as
compared with the condition of things which has been described, and
of which I gave the evidence of tlie other day, — practically speaking
no fighting at all among the bulls, a large number of com.iDaratively
speaking effete bulls and a comparatively few bulls with very large
harems.
I call attention to page 24 of Mr, Elliott's report. 1 will only give
you, so that you may have them on the note, the pages, and I ask tlie
Tribunal to be good enough to read the series of extracts. About the
middle of the page he speaks of the absence of bulls which formed
the striking feature of that changed order of affairs and declares a
reduction of more than one half of the females and fully 9/lOtlis of the
males on this rookery.
Then the third paragraph on that page:
Eigliteen years ago tliese slopes of "Garbotch" and the Reef Parade were covered
■with angry, eager lusty bulls, two and three weeks before the first eows eveu arrived :
they came in by the 5th to the 22ud May in such numbers as to fill the space at close
intervals of from 7 to 10 feet apart, solidly from the shore line to the ridge summit,
and over, even, so far that it required the vigorous use of a club before we could get
upon "Old John Rock" from the rear:
That is the name of the place:
then two, at that time they were fighting in every direction under our eyes.
This season I do not observe a bull here, where I saw at least ten at this time 18
years ago. Now, not a fight hi profjress anjiwhere here, there are not bulls enough to
quarrel, they are now scattered apart so widely over this same ground as to be a
hundred and eveu a hundred and fifty feet apart over ground where in 1872 an inter-
val of ten feet between them did not exist.
Now I remind the Tribunal this is referring to animals of an average
of eight years old, and many of them still more. It is most pointed
testimony and the Tribunal already know that which I have told them
so many times — they will find in Lavender's, Goff"'s, and the other con-
temporaneous reports, the strongest independent confirmation of this
statement. On page 33, the bottom of the page,
On Lukannon this last summer, while there were two fifths as many cows as in
1872, yet the bulls did not average more than ouefifteenthof the number they showed
in 1872. On Keetavie
232
ORAL ARGUMENT OF SIR RICHARD WEBSTER, Q. C. M. P. 233
and so on. I do not pause to read tlie wliole passage. I ask the Tri-
bunal to be good enough to note it for consideration. Tliere are many
more, but I must make a selection, and I want to call attention to the
daily field notes. Would you look at page 232 where they begin, and
you will find under each rookery, and giving the date, JVlr. l^^lliott set
down what he had actually seen on many occasions. \'ou will find that
he refers to the fact of Mr. Goft' being with him at times, and he refers
to other Treasury Agents being there. I aslv the Tribunal to kindly
note pages 232, and 233 and 230. You will see there what I had in my
mind.
In company with Mr. Goff and D'', Lutz I made my plotting of the breeding seal*
as they lay on tlie Reef and Gaibotch to-day.
And then follows a categorical statement of what he saw. I shall
ask the Tribunal to be good enough to read for themselves Mr. Golf's.
afiidavit made on behalf of the United States: not a word of qualifica-
tion of this or a suggestion that this is not a true state of things — not
a word.
Then page 242. " A survey of Tolstoi this morning. That is on the
30th July, and on page 243 on the 7th July. The Tribunal must not
think that these are exhaiTStive statements of all the Keport contains.
The real way to judge of this Eeport is to read it and picture to your-
self what the man was seeing from day to day, and assuming him to be
a man of experience, which cannot be denied — a man who had more
experience than anybody else, and appointed from a knowledge of his
imi)artiality and sent to report that it was pelagic sealing and nothing
else that injured these rookeries — it does enormously strengthen the
value of this Eeport. I pass from that, Mr. President, because I think,
at any rate, the Tribunal appreciated my argument on this the other
day.
I come now to the third cause of injury to these rookeries and agairt
I say, taking it from the testimony on both sides, that on impartial con-
sideration you must come to the conclusion that, driving, overdriving,,
and redriving have for years been injuring the male life on these rook-
eries. I will as briefly as possible put before you the evidence as tO'
this part of the Case, and I will ask the Tribunal to turn to tlie British
Commissioners' Eeport, paragraph 704. This is what the British Com-
missioners reported from what tliey saw themselves before they had the'
corroborative testimony to which I am about to call attention later on..
I read from paragrar)h 704:
One of tlie most important points connected with the method of talcing fur-seals-
on the Priliilof Islands, is that of the driving from the various hauling groumls to
the liilling grounds. However safeguarded or reguhitcd, the method of driving fur-
seals overland for considerable di.stances must be botli a cruel and destructive one..
Active and graceful as a fish in the water, the fur-seal is at best clumsy and awk-
ward in its movements on land, and though it is surprising to note at how goodl
a pace it can, when forced to do so, travel among the rocks or over the sand, it is;
also (juito evident that this is done at tlie expense only of great effort and muchi
vital activity, as well as at serious risk of pliysical injury. A short shuffling run is.
succeeded by a period of rest, and when nndisturbed, all movements on sliore arc
carried out Avith the utmost deliberation and fre((ucnt stoppages. Hut Avlien a lienL
of seals, half crazed with fright, is driven for a distance of a mile or more iVom tlie
hauling ground to some killing place, already pestilential with the decaying car-
casses of seals previously killed, it unavoidably, and however frecjnently the animals
may be allowed to rest, entails much suffering. When the weather is at all warm,
or when the seals are pressed in driving, individuals frequently dro]) out and die of
exhaustion, other's again are smotlicretl by the crowding together ol' the frightened
herd, and it is not iufre(iuent to lind some severely wounded by bites ruthlessly
inflicted by their companions when in a high state of nervous tension. It a]i])ears
also, from information obtained on this subject, that in warm weather seals, during;
234 ORAL ARGUMENT OF SIR RICHARD WEBSTER, Q. C. M. P.
a drive, occasionally pass into a state of violent spasmodic activity, wliicli is aim-
lessly maintained till death eusnes. Under such circumstances, drives have not
infrequently had to Ije abandoned.
On St. Paul Ishmd, the longest drives now practised are those liom Polavina to
the vicinity of the salt-house near Rocky Point, and from Tolstoi to the vi]la.<;e kill-
ing grounds. These are about equal in length, and each not much less than two
miles. On St. George, the longest drives are from the Great Eastern Rookery and
from Starry Artcel Rookery to the village killing grouu<ls, each being about three
miles in length, the time occupied in driving being from four to six hours, according
to the weather. Under the Russian regime much longer drives were made, and in
the curtailment of these a very considerable improvement has been effected, but the
essentially injurious features of the drive remain the same.
On liehring Island, of the Commander gronji, the fU'ives are short, the longest
being about one and a-half miles, from the South Rookery. On Copper Island, on
the contrary, the drives generally extend across the island, and are from three to
four miles long, verj'^ rough, and crossing one or more intervening steep ridges.
These drives nuist be much mote trying to the seals than any now made upon the
Pribilof Islands, and are, in fact, only rendered possible by extreme caution on the
part of the drivers, and by the expenditure of much time.
If it were ])ossible to drive only those seals which it is intended to kill, little
exception could be taken to the method of driving in the absence of any Ijetter
method, but the mingling of seals of varied ages ui)on the hauling grounds from
which the drives are taken, even under the original and more favourable conditions
of former years, renders it necessary to drive to the killing place many seals either
too young or too old to be killed. It is sometimes possible to "cut out" from the
drives many of these unnecessary individuals eit route, and great care is exercised
in this respect on the Conunander Islands, though little appears to have been prac-
tised on the Pribilof Islands.
It admits of no dispute that a very considerable impairment of the vital energy
of seals thus driven, and eventually turned away from the killing grounds, occurs,
altogether apart from the certainty that a proportion of such seals receive actual
physical injuries of one kind or another, but this appeared to have been recognized
on the PribilotF Islands only within the past two or three years.
Then come a citation from Mr. Goffs report which I have ah-eady
read.
'Now, Mr. President, I want to say a word with reference to the facts
of this matter by calhng attention to the citations at page 2(31 of the
Counter Case, passages which have already been read and I will not
trouble yon by reading them again, of a number of people Avith regard
to the cruelty of the drives; but I do want to say one word about Mr.
Palmer. And I will ask you to be good enough to turn to pages 187
and 188 of the British Commissioner's Eeport, where Mr. Palmer's
Eeport upon this matter is set out at length.
Now, what are the facts with regard to this? If you will look, Mr.
Palmer, of the United Stales ISTational Museum, Washington, a geutle-
man whom it is not suggested had either motive or object in saying
what was not true, personally dissected and examined a large number
of these seals. The facts are stated at page 188:
When driven into the water the seals are weak from two causes, the drive and
lack of food; beibre they can secure food they must rest, and rest is only obtainable
at the exp<'nse of that most vital necessity of these animals, their fat. I remember
looking with great curiosity for the cause of death of the lirst dead seal that I found
stranded on tlie beach, l^xternally there was nothing to indicate it, but tlie lirst
stroke of the knii'e revealed instantly what I am contidcnt has been the cause of
death of countless thousands of fur-seals. It had been chilled to death; not a trace
remained of the fat that had once clothed its body and protected the vital organs
within. Since the day that it had escaped from the drive, it had consumed all its
fat in the effort to kee]i warm, and nothing remained but to lie down and die. I
opened many after this, and always discovered the same, but sometimes an addi-
tional cause, a fractured skull perhaps. I have even noted those lelt behind in a
drive, and watched them daily, Avith the same result in many cases. At tirst they
would revel in the ]^onds or wander auu)ng the sand dunes, but in a few days their
motions became distinctly slower, thi! curvature of the spine became lessened;
eventually the poor brutes would drag their hind Hippers as they moved, and in a
few days more become food for the foxes. In every case the fat had disappeared.
ORAL ARGUMENT OF SIR RICHARD WEBSTER, Q. C. M. P. 235
It will be seen also that by this tTriving process the 2- or o-year-olds, which are
tlu- only ones killed for their skins, are culled out almost ct)inpletely from the seals
■which visit these islands, and therefore that very few male seals ever reach a greater
age; consequently, there are not enough yonng bulls growing up to supply even the
yearly loss on the rookeries, much less to provide fur any increase.
I ask, if that is not true, why have not we the evidence of people who,
in 1801 and 1802, opened and examined these seals! There have been
openings and examinations of pups quite properly to make out their
death was due to the pelagic sealer. There was an examination in 1801
of pups to show that there was no trace of organic disease; and I want
to know if it be not true that this driving has this effect, — nobody
suggests that Mr. Palmer is not experienced, nobody suggests that he
is not honest; and he personally opened these seals himself and he
stated, speaking to a scientific society, the result of his own observa-
tions. But it does not rest only on Mr. Palmer though that would be
a very, very strong fact if it stood alone. I remind you again, and I
will not stop to read them because most of them have been read already,
on page 201 of the British Counter Case you will find a collection of
extracts of persons who have spokeu on this matter.
Kow, I will ask you to be good enough to take volume I of the Appen-
dix to the Counter Case, and to look at what was observed in the years
1801 and 1802 by Mr. Macoun. 1 read from page 152 of the 1st volume
of the Appendix to the Counter Case.
When on the Pribilof Islands I was present at four "food-killings", three on St.
Paul Island and one on St. George Island, and was tliui^ enabled to observe carefully
the methods employed by the agents of the North American Commercial Company,
and the natives working under them, in selecting from the thousands of seals driven
to the killing-grounds the few hundreds that were to be killed. I had expected that
the driving and killing of these seals would be under the direct supervision of an
officer of the Government, for while it was well understood that the skins of the
seals killed would be taken over by the Company, the object of the killing during
the modus rivendi was supposed to be not for the purpose of taking skins for the
Company, but to su^iply the natives with food. 1 did not myself accompany the
natives during the whole progress of a drive from the hauling-grounds to the killing-
grounds, but on three occasions on St. Paul Island I accompanied the drive for some
distance before the killing-grounds were reached. On none of these occasions did
an officer of the United States Government see anything of the seals until they were
all driven together near the killing-ground, and once the killing had to be delayed
for some time until the Treasury Agent reached the ground. Once only on either
island did an officer of the Government in my presence interfere in any way with
the natives or the agents of the Company iu their work of clubbing and skinning
the seals, or make to them any suggestion as to which seals ought to be killed and
which spared, and the number of seals killed on every occasion dejiended not upon
the wants of the natives, but entirely upon the number there were in the drive that
were thought by the agents of the Company to be of a size that would give to them
skins of the greatest value. The one instance referred to above was at the killing
on the 1st of July. A seal with apparently a broken shoulder was allowed by the
natives to escape though they noticed its condition. C«donel Murray, —
he was one of the Government Agents, and I have read his Eeport
before,
then ordered one of them to go after it, and it was killed. At this killing less than
300 skins were taken. A careful account was kept by me of the number of seals that
were driven up to the clubbers, and were allowed to esca]ie after having been hud-
dled together on the killing-ground, while those of a kilhiblesize were selected from,
the drive.
But 14.1 per cent, of the whole number of seals driven at this time were killed,
while among those that escaped I counted seventeen that were badly enough bitten
or wounded to bleed considerably, and there were doubtless many more that I failed
to notice. Three of those injured were young seals that had evidently been struck
by the clubbers, as they were badly cut about the head. One seal, about 6 years old,
that had been wounded in the belly, was allowed to escape. I Avent to where it had
rested for a few minutes, and found as much clotted blood as would have filled a
breakfast cup. Another seal had a gash in its back about 5 inches long, and though
236 ORAL ARGUMENT OF SIR RICHARD WEBSTER, Q. C. M. P.
a fonr-yeur-old seal of the size tLat was Leinj^ killed was allowed to go free, as the
skill liad been iujnred. A wounded orbleedinjij seal was to l)e seen in nearly every
small pod of from thirty-live to fifty that passed through tlie hands of the clnbbers.
Tliere were, of conrse, many others that bad blood on them that had come from the
killed or wounded seals, but on the seventeen referred to above the wounds could
be plainly seen.
At the killing of the 25th of July one young seal escaped with a broken nose, and
another with an eye hanging out. Such tilings attracted no attention from either
the natives or the officer of the Gloveninient or Company, being apparently con-
sidered by them to be quite matters of course.
I noticed at every killing on St. Paul Island at which I was present, that as each
little pod of seals was driven from the killing ground to the lagoon 20 or 30 yards
away, one or more lagged behind the others, moving with great difficulty, and by
means of their fore-llippers only, as if their backs or hinder parts had been hurt in
some way. They seemed to revive after the water was reached, and it was not pos-
sible for me to determine whether the injury was of a kind that would affect them
permanently or not.
No Ijotter proof of the injury done to seals by driving could be had than to walk
along the route followed by tiiem when driven from a hauling-ground to the killing
ground. The ground is on all sides strewn Avith bones; and if there has been a
recent drive, many rotting carcasses are also to be seen. The day after a drive from
Middle Hill I walked for about a mile from the salt-house along the route over which
the seals had been driven, and found seventeen carcasses of seals that had become
overheated, and had been killed so that their skins might be saved. I found one
dead seal lying in a small pond of water, about a mile from the killing grounds,
through which the seals had been driven; it had no doubt become exhausted, and,
lying down there, had escaped the notice of the drivers. The fur was still good.
The carcasses referred to above were all of animals of the size of which the skins
would be of the weight required by the Company, and much better able to bear the
fatigue of the long drive than the younger ones.
As actual counting at four fillings show that less than 20 per cent of the seals.
This is very important in reference to wliat was snbsequently dis-
covered as the observations of Mr. Elliott, Mr. Goft", Mr. Lavender, and
Mr. Mnrray in the year 1890, of which Mr. Macoun had no knowledge
when his (Mr. Maconn's) Report was written.
As actual counting at four killings show that less than 20 per cent of the seals driven
were of what the Agents of the Company considered a killable size, the number of
young seals hurt Avhile being driven must be very great, but not, I think, greater
than those injured when the seals are huddled together surrounded liy the clabbers.
With no escape in any direction they draw nearer one another, until they are at last
crowded so closely together that little more than their heads are visible, except when
one of the larger seals struggles out from among the others; if of a killable size, it
is knocked on the head and falls back into the struggling mass. The "pod" is con-
tinually poked and stirred up by the clubber, in order that the seals may be kept
moving and when all that are of the proper size have been clubbed the others are
driven from the killing grounds, with cries from the clubbers and the beating of
pans by the attendant boys. If by chance a "killable" seal escapes with the
younger ones, a club is thrown at it, and though many are struck in this way, I
never saw one stunned or prevented from reaching the lagoon, a short distance
away. Whether such seals receive permanent injury it is impossible to say, but the
throwing of the club at them always appeared to me an act of wanton cruelty or
a sort of pastime to amuse the clubbers while the next "pod" of seals was being
driven up.
While the seals were huddled together on the killing ground the clouds of steam
rising from them shewed plainly the over-heated condition of the animals.
Sir, there are before the Tribunal photographs of these animals while
they are being driven. Yon will find at pages 30 and 31 of the original
Census report of Mr. Elliott the description of the way in which these
animals move, and I must say I think in the face of this evidence the
statement that the pelagic sealer was a man actuated by a taste for
cruelty was rather nnfortunate in the argument of the United States
speaking of this in the knowledge of the evidence we now have before
us I do not think that those who are so enamoured of this method of
killing on the islands, can boast very much on the score of cruelty.
Probably it had better be left out of the argument altogether so far as
ORAL ARGUMENT OF SIR RICHARD WEBSTER, Q. C. M. P. 237
tbey are concerned. But Mr. President in this connection will you be
good enough to look at the corroboration from Mr. Elliott's report of
this matter aud 1 will ask you to look at page 104. Again I am not
pretending- to read all the paragraphs, but there are some here I wish
to direct attention to.
Ever siuce 1879-82 the stirplus young male seal life has beeu sensibly feeling the
pressure of the oveilaud death drive, and tlie club; harder and harder became this
wretched driving to get tlie quota in 1883-84; finally when 1883 arrived, every nook
aud cranny on these islands that hijd hitherto beeu visited by the " holluschickie "
in peace was now daily searched out,— close up baclc of, and against the breediug
roolieries, under every clitf wall by tlie sea, over to Sonth-West Point, and to Otter
Island, and even the little islet, Seevitchik Kamman, under the lee of the Reef was
regularly liiiuted out.
Every three-year old, every four-year old and every well-grown two-year old male
seal has been annually taken here during the last two years within a day or two at
the latest after it showed up ou the beaches, and iu the rear of rookeries, prior to
the 26th-3l8t, July.
In 1872 the killable seals were permitted to " haul up " in every sense of the word;
they hauled out far inland from the sea; in 1890, the few killable seals that appeared
never had time iu which to " haul up" over the land, — they 8im])ly landed, and at
the moment of landing were marked aud hustled into a drive; up to the 20th of July
last summer, from the day of their first general hauling as a body iu June, this class
of seals never had an opportunity to get wonted or accustomed to the laud, — never
were permitted to rest long enough to do so alter lauding.
Then page 118 he is describing the driving which had been i)reviously
spoken of in his old Census Keport.
Such was the number aud method of the young male seals in 1872-'74: it is very
difterent to day: from the hour of the first driving of 1890, May 21st up to the close
of the season, July 20th, all the driving was regularly made from rookery grounds —
from the immediate margins of the breeding animals with the solitary exception of
that one place. Middle Hill, English Bay, St. Pauls Island. Not a drive made else-
where in the course of which cows and puj^s and bulls were not disturbed and
hustled as the young males wore secured.
I call attention to the fact of females being included in the drive with
reference to some further evidence later on. Then follows on page 118
and 119 a passage as to the driving- of cows on which I rely, but which
is not very nice reading.
General Foster. — There is an omission there in the next sentence.
"As long- as the breeding- season was unbroken" — the omission is, "was
at its height, and the compact organization of the rookeries was." —
Sir KiCHARD Webster. — I am much obliged. IS^ow look at the bot-
tom of this page,
Last season, during that desperate effort made then to get the catch of 100,000,
parties were regularly sent over to drive the holluschickie off from Seevitchie Kam-
nien, from Otter Island.
That is not unimportant with reference to the effect on the habits of
seals of this driving on the islands.
When I expressed my surprise at this ferocious driving begun early in .Tune, I was
met by ajiparent equal siujirisc on the part uf the drivers, who Avondering at my
ignorance, assured me that they had been driving seals in this method ever siuce
1885. — "had been obliged to, or go without the seals"!
The driving itself, in so far as the conduct of the natives conducting the labor was
concerned, was as carefully and well done as it could be ; they avoided to the very best
of their ability any uudue urging or hastening of the drive overland from the rook-
eries; they avoided, as nearly as they could, under the circumstances sweeping up
pods of cows and pups — did all that they could to make as little disturbance among
the breeding animals as possible : l)ut even with all their care and sincere reluctance
to disturb the rookeries, cows were repeatedly taken up in their scraping drives on
the margins of all the rookeries aud their puj)s left tioundering behind to starve and.
perish ultimately.
The manner to-day of driving overland to the killing grounds is unchanged from
the methods of 1872, but the regular driving from every spot resorted to by the hoi-
238 ORAL ARGUMENT OF SIR RICHARD WEBSTER, Q. C. M. P.
Inscliickie on Ijotli islands has cansed the establishment of killins? grounds and a
salt liouse as early as 1879 at Stony Point (Toukie JMees), and a slaughter field at
Zapadnie on St. Paul the skins being taken from the latter point by a bidarrah to the
village; (whieh was sent over from there every time a killing ^Yas made) and are now-
hauled down in wagons, (mule teams) from the Ibrmer locality, to the salt houses of
St. Paul.
I^J'ow tliese are facts stated, T admit, to Mr. Elliott on the information
of the people in the islands tliat the change took place as early as 1879,
and. another change later on. If this was to be contradicted it onglit
to be contradicted categorically, and by people who knew. Then if
you will turn to pages 14G and 147 and you will find some imiiortant
percentages showing that which I enforced on the Tribunal on Friday
last, the increasing proportion of small instead of the decreasing pro-
portion of small, which would have been the consequence if pelagic
sealing was at the root or had been the real cause of this mischief.
Thus the bottom of 140.
Average percentage of seals " turned " out from the driven " pods " seasons of 1872-
1874, including nothing l)ut 7 to 12 lb skins taken from the start to the iinish.
General Foster. — It is 1872 to 1874, inclusive.
Sir Richard Webster. — Of course it is.
General Foster. — It is inclusive of years, not of pounds.
Sir Richard Webster. — For this purpose it is not material. The
point is they were taking from 7 to lH pound skins, and not snuill ones.
From June 5th to the 15 inclusive, 5 per cent to 8 per cent of each
driven herd. From June 15th to June 3(>th, 10 per cent tol-J per cent.
From July 1st to the 15th 35 per <!ent to 40 per cent. From July 15th
to July I'Oth, CO per cent to 75 per cent.
Now the corresponding dates in 1890 were up to the 4th July only 7
to 12 iwund skins were being taken; and then 5 pound skins. From
June 5tli, to the 15tli 60 j)er cent to 70 per cent of each driven herd
driven back. From June 15th, to June 30th, 70 to ^o per cent. From
July 1st to July 15th, 85 per cent to 90 per cent. And then, even after
the lowering of the standard from July 15th to July 20th, 90 per cent
to 93 per cent turned back. JSTow these facts are spoken to by the man
who had seen them and are, in my submission to this Tribunal, of more
value than any number of opinions of people who had no previous
experience and simply say what they think with regard to the effect ol
driving upon these animals. Then, if you will kindly turn to page
248, this is with regard to the rookery of Polavina on the 3rd July:
Visited this rookery ground and surveyed the area and position of the breeding
animals in company with ]Mr. Goft\
My final survey of this rookery shows it to be one of the two rookeries only which
seem to have suffered only half in loss of form and numbers. I can not avoid the
conclusion, however, that this rookery like Zapadnie, has been cruelly driven during
the last four or five seasons, perhaps the last eight years, since the chief hauling-
grouuds always laid up behind the breeding lines of Polavina; therefore, when the
shrinking of holluschickie began, the scraping of the large semicircular edge of
Polavina Rookery commenced in earnest, since the young males naturally do here as
they do everywhere else on this island to-day, they lie up closer and closer to the
lines of the breeding seals.
Then, beginning at paragraph 207 going on consecutively to 283, I
press upon the Tribunal the importance of this evidence. There are
tables of the actual counts of the numbers taken, the numbers killed
and the numbers turned away day by day written down as they occurred
in the presence of these very Government Agents, and that extends
from the 23rd June up to the 20th July, the last rlate of an actual record ;
that is 25 days of actual observation— of course, not consecutively, but
ORAL ARGUMENT OF SIR RICHARD WEBSTER, Q. C. M. P. 239
wlieii tlie drives liave occurred, and the Tribunal will find, if tliey will
be good enough to study those tables, corroboration which with great
respect, my learned friends will not be able to dispute. I will call atten-
tion to my point as I pass on briefly. I will take page 273, 78 per cent
rejected; that is the 27th June. Page 275, on the 28tli June, 85 per cent
turned away; page 270, on the 30th June, 84 per cent turned away (I
leave out fractions); page 277, on the 1st Jnly, 00 per cent rejected, or
rather 85 per cent rejected, and 00 i)er cent of those were yearling pups;
page 278, 88 1/2 per cent rejected on the 2nd July; page 271), 91 rejected
on the 3rd July, and on the same day 81 per cent at another ])lace. On
the 4th July, page 281, UO 1/2 per cent rejected; on the 7th July, page
282, 92 per cent rejected. My learned friends will understand that I
will read every one if they wish it, bnt it makes it clear that what was
going on was that there had been a reckless slaughter of the hollu-
schickie, i^erfectly independently whether or not there were suftlcient
male lives on the rookeries, in srpieezing these unfortunate rookeries so
as to get these 100,000 seals j>er annum.
Kow at page 251 of this report occurs a passage which ought to be
read. Yon will remember a man named Webster, whose conversation
with regard to the size of the harems is quoted in the United States
commissioner's report, but his affidavit is absolutely silent as I pointed
out to you the other day with regard to the size of the hiirems subse-
quently but there is a statement on pages 250 and 251, the one I am
referring to which seems to me to be of imj)ortance. It is under the
date of 25th Jnly.
Daniel Webster is the veteran white sealer on these islands; he came to St. Panl
in 1868, and, save the season of 1876 (then on a trip to the Russian Seal Islands), he
has been sealing here ever since, beinc; in cliarge of the work at North East Point,
annually, until this summer of 1890, when he has conducted the killing on St. George.
He spoke very freely to me this afternoon while calling on me and said there is no
use trying to build these rookeries up again so as to seal here as has been done since
1868, unless these animals are ])rotected in the North Pacific Ocean as well as in
Behring Sea; on this point the old man was very emphatic.
That is an imjiortant point as showing impartiality in this matter.
Webster came ashore on St. Paul island in the spring (April) of 1868, an employd
of Williams and Havens, of New Loudon, Ct. He took charge of the sealing then
begun on behalf of this firm at Novastoshuah or North East Point. Hutchinson,
Kohl and Co. had the only other party up there at that time. This was the first
irregular sealing ever done upon this island since 1801.
Webster said that H. K. and Co. and he took over 75,000 young male seals at N. E.
Point alone, that summer of 1868, and only st()]>ped work from sheer exhaustion of
their men, who were not only jihysically " used up," but also they had used up all
their salt and had no suitable means left of saving any more skins.
When, then both parties stopped work he said that no apparent diminution of the
number of holluschickie was evident to any of them ; and that this fact created much
comment; he declares that there has never been so many seals on that ground since
that "although there Avas a fine showing of seal, Mr. Elliott, when you were there
in 1872, yet there never has been so many there as in 1868."
He says that ever since 1876-77 he has observed a steady shrinking of the hauling
grounds at North East Point a ver^- rapid contraction during the last six years,
esiiecially rapid since 1887-'88.
That he never agreed with the statement recently made of the great increase of
seals over my record of 1872-'74; but on the contrary has always said that no increase
ever followed it, and that he always said so to both Treasury and company agents
whenever questioned he declared a steady diminution; he says that when down in
San Francisco last (about 5 years ago, winter of 1885-'86) he was not asked any
questions by anybody as to the incre;ise of seals, and he volunteered no information;
if he had been asked, he would have spoken his mind freely.
Webster says that in 1872-'74 he was then able to get all the hollnschikie he wanted
from that sand beach on the North shore of the ''Neck" at N, E. I'ojut never went
auj" where else for them, or near a rookery.
240 ORAL ARGUMENT OF SIR RICHARD WEBSTER, Q. C. M. P.
'Now world you kindly turn over to page 303. A conversation was
held on the Gtli August in tlie presence of all four Government Agents
Murray, ]Srettleton,Goff the ordinary Agents and Mr, Elliott tbe special
one. Colonel Murray took the notes and lie is the Colonel Murray
whose report I have read. I need not read though I commend to the
notice of the Tribunal the whole of this conversation, but I turn to
bottom of page 302. Where there is an answer by George Booterin
one of the witnesses examined. Their names are given on page 300
and you will find it stated they are the men who had been longest on
the island.
They are Artamonov, Booterin, Sedoolie,Vollkoy,Korchootin, Sedick.
I began to see in 1877 tbat this trouble was abeacl, but whenever I or my people
spoke about it we were told by the company men "Americans" (sic) that it was not
of our business and we must not talk about it. Whenever we talked about the seals
the company men threatened to send us away from the island.
Qi(estion. (By Mr. Golf to Booterin.) Was that the reason you would not talk to
me last year?
Answer. I hardly remember now why I did not like to talk about the seals.
Question. What do you men think of the efl'ect on seal life of xhe driving of the
seals?
Answer. When the old Russian Company drove, and the drives came in here, they
never killed anything over a three-year-old; all over that were either never dis-
turbed, or else spared ; and if the same thing had been practiced ever since, there
would be no scarcity of seals to-day.
Question. How many three-year-olds do you think you can get next year?
Answer. If they were to drive all the seals on this island next year they would
get nothing and would only disturb and injure the rookeries.
(By Kerick Booterin. ) Whenever any killing is allowed, if they never kill any over
three-year-olds, and kill only three-year-olds and under, I believe there would be no
injury done.
Question. Do any of you remember the " Zapooska" of 1834?
"Zapooska" Mr. President means a rest given to the islands.
Answer. Yes, Booterin and Artamonov remember it well.
Question. How many seals were killed alter the first year of that order, and how
were they killed ?
Answer. The first year we killed only one hundred holluschickie, and we increased
the number every year afterwards.
Question. What do you think of another " Zapooska" for today?
Answer. (By Kerick Booterin.) When the Russians ordered their Zapooska, little
by little afterwards, everything grew better, and if the same thing is repeated to-
day, everything will grow better, and if it is not done, no seals will come here. Wo
observed that the men sent here by the Government since old Capt. Bryant, till we
saw you men and talk now with you, took no interest in the seals, but whenever
busy, were engaged in shooting our hogs, in fact they very seldom visited the
rookeries.
Question. Did you men ever talk or attempt to talk about seal life to any of the
Government officers before Mr. Goif's time?
Ansxcer. Yes, on several occasions, and they answered we did not know anything
about it.
Then a little way down by Mr. Elliott
We propose to immediately inform the Secretary of the Treasury of the exact con-
dition of affairs, and we know that he will take care of the seals and the jieople too.
That he is tbe only man who can talk, but that he sent us here to get the facts, and
he will act upon that information. That none of us in Washington knew of tho
true condition of affairs up here; until Mr. Goff wrote down last year to the Secre-
tary of the Treasury not a word has ever gone from here since 1870 which even
hinted at any danger to the seals.
Indicating that that had been occurring which may be better imagined
than described. The Company Agents and the Treasury Agents prior
to 1889 were not telling the Government the truth as to the condition
of the Islands.
ORAL ARGUMENT OF SIR RICHARD WEBSTER, Q. C. M. P. 241
Now, Mr. Presideut, on page 301, I will just read the summary with
regard to this interview.
The foregoing statements are made only by those natives who in 1872-'74 were old
enough then to really observe and think; these men above named are the only sur-
vivors of that age when I was ou the island in 1872; also, when the above interview
was in progress, Xerick Booterin during the whole time held a small note book iu
his hand, open, and not seeing him make any notes or refer to it at the close of the
talk, he was asked by the interpreter what he wanted to do witli the book that he
had there; he then showed us the following written statement (iu Russian) which
he said he made for me, as he was not certain whether we should meet and talk, or
not, before I left the island.
Then this is the statement August 6th:
Pardon me, Mr. Elliott, I never call myself a big man, but now I shall talk what
I know, and will not tell what I do not know.
I think that as the hauling grounds were, they will be if the drives were made and
the killing made from small ones, the large ones spared. If that is done, I think all
will be well. If that is not done, more harm will come to the rookeries so that there
will be no more hauling out on the rookeries. If a "Zapooska" is not made, then
we will lose the land if the Treasury does not look out. If the hauling-gi-ounds
could sustain the company, then the grass and everything like it would not grow
there now. This loss will fall upon us and upon our children. We cannot longer
sit quiet and talk about there being lots of seals.
I speak to every member of this Tribunal, and I say to suggest that
that rei^ort is not the report of truth not by direct attack but by casting
suspicion upon it as was done by Mr. Carter in his original argument
is unworthy; I was about to justify Mr. Elliott's position when my offer
drew from Mr. Phelps the frank acknowledgment he did not intend to
attack Mr. Elliott except by criticism of his report, which he is at per-
fect liberty to do — I say, if you look at that report and apply to it your
exiDerience and knowledge of life, you cannot but come tp one conclu-
sion; and that is that in 1881) the impartial Treasury Agent, Mr. Goff,
who is still in the service of the Government, Colonel Murray, Mr. Eet-
tleton, and Mr. Lavender, as well as Mr. Elliott, came to the conclusion
the bulls had been j)ractically exterminated from this island for some
years before.
Now the evidence in rebuttal of this from Mr. Stanley Brown is rather
curious, and I read from the second volume of the United States
Appendix, at page 18, under the head of redriving:
From my knowledge of the vitality of seals I do not believe any injury ever
occurred to the reproductive powers of the male seals from redriving that would
retard the increase of the herd, and that the driving of 1890 necessary to secure
about 22,000 skins could not have caused nor played any important part in the
decrease that was apparent ou every baud last year.
Now that affidavit was made after a few months' or rather a few week's
examination, of the rookeries by Mr. Stanley Brown. It is not saying
too much to ask this Tribunal not to regard such testimony, in the face
of the body of evidence to which I have been calling attention this
morning, as well as that to which I called attention on Friday last.
But is it true that female seals have been appearing in the catch from
the islands to a much greater extent than they ought to have? I will
ask attention on this point to the British commissioners' Keport, para-
graj)hs 716 to 719, and again I do not hesitate to appeal to the careful
way in which these gentlemen formed their opinions, and to the way in
which they have been corroborated by the subsequent testimony, para-
graph 716.
As already indicated, all the evils incident to " driving" in any form became greatly
intensified when, with a diminished number of killable seals, the attempt is still
continued to obtain a large yearly number of skins. This occurs not only because
B S, PT XIV 16
242 ORAL ARGUMENT OF SIR RICHARD WEBSTER, Q. C. M. P.
of the driving and redriving above referred to, but also in consequence of the fact,
that under such circumstances the remaining killables lie very close to thebreeding
rookeries, so that it is no longer possible to make drives without disturbing the rook-
eries themselves. Thus, it has occurred that, in late years, considerable and increas-
ing numbers of breeding females have been driven to the killing grounds with the
killables, though when recognized there in the process of selecting for killing, they
have been released. The probable special ehect of such treatment of females, as
well as the fact that in the disturbances caused upon the breeding rookeries, a cer-
tain number of the young are almost certain to be killed, have been already noted.
Theu in paragraph 717 is the extract from the original Census Eeport,
and in paragraph 718 is Captain Bryant's testimony Avith regard to the
possible inclusion of females for killing among these driven. But if the
Tribunal will be good enough to take the second volume of the Appendix
to the British Counter Case at page 245, 1 will read the evidence of six
or seven of the fur merchants in the very aflidavits referred to by my
learned friend, Mr. Coudert. This is at paragraph 5 — Mr. Stamp.
A noticeable feature about the consignments from the Pribilof Islands has been
that, while formerly the consignments were entirely composed of male skins, of late
years from 1883 up' to 1890 female skins have appeared among them each year in
increasing numbers.
Now the question may arise as to whether or not you can tell sex very
accurately, but in making this affidavit Mr. Stamp could not have had
in his mind that there would be anything important in the particular
dates he mentioned; and he puts 1883, a date some seven years back,
which would corroborate the statement I have been making this morning
as to the date the driving close to the rookeries actually began.
The President. — It does not appear that this testimony should relate
to seals killed on the islands.
Sir EiCHARD Webster. — Yes.
The President. — You think it does not mean the Pribilof herd alto-
gether.
Sir Richard Webster. — No that is not contended. These affidavits
have been referred to before. I do not wonder, after the lapse of time
it should, have escaped even your memory. Sir, that the skius from the
Pribilof Islands are distinguished from the north-west catch all through
by fur merchants. You will find I am accurate in that respect. Then
at page 246 paragraph 6:
In inspecting consignments of Alaska skins in recent years, I have from time to
time noticed that the number of female skins had very much increased, and in the
last few years in which the 100,000 skins were taken, I personally noticed a very
considerable percentage of female skins. Female skins began to make their appear-
ance about 1883 in this catch, and have increased in numbers each year since reaching,
as I have said, a very considerable percentage in 1889.
Then the next paragraph shows what I had in my mind with reference
to the others.
In examining the consignments of the north-west catch, I have always noticed,
and during the past two years especially, an increasing number of skins which
showed neither spear nor shot marks, and which appear to be identical with Alaska.
He is speaking of the sea catch as the north-west catch, and so they
all do.
Then Mr. Eice at page 246, paragraph 3, says :
Up to 1878 I never remember having seen among the Alaska catch any female skins.
In that year for the lirst time I noticed the appearance of a few female skins, which
I at once drew to the attention of the firm. In the following year there were also a
few of these skins, but what percentage, or Avhat number, I cannot at this distance
of time recall. Since that period I have always noticed amongst the Alaska catch
a certain percentage of skins which were female, and which percentage has slowly
increased, and amounted to, in my opinion (at a rough guess) in 1889 to from 10 to 15
per cent.
ORAL ARGUMENT OF SIR RICHARD WEBSTER, Q. C. M. P. 243
These are tlie same gentlemen who refer to there being 70 or 80 per
cent of the female skins in the sea-catch — the same gentlemen whose
affidavits are relied upon by my learned friend, properly enough, for
that purpose.
Then Mr. Vyse at page 248 paragraph 3.
As refjarrls the Alaslia catch, in former years this was entirely composed of male
skins, but latterly I have noticed amonj^st them a certain percentage of female skins,
which have increased a little in more recent years. It is very diHicnlt to form any-
thing like an accurate estimate of what this percentage is. In my opinion, it is
about 10 per cent.
Then Mr. Bevington, page 249, paragraph 3.
As regards the Alaska catch, I have during the last four or five years noticed
amongst them a small quantity — say from 10 to 15 per cent. — of female skins.
Then Mr. Allhausen on the same page, paragraph 3, says :
There is another feature in relation to the Alaska skins, viz., that they, for the
most part, are entirely composed of male-skins. Of late years, that is to say, from
the year 1883 or 1884, I have noticed amongst this consignment a certain percentage
of female skins, which percentage has increased in later years.
Sir, it is corroboration, and corroboration not of an unimportant kind,
though, of course, not quantitative, showing what you would expect was
happening if males were becoming scarce and if they continued to take
more of the twoyear olds and more of the one-year olds, and they were
obliged to drive closer to the rookeries and so did include some females
who were disturbed from the rookeries.
Now, passing as rapidly as I can over one or two remaining matters,
I Avant to tell you the class of evidence which you have to consider.
Will you kindly take map 7 of the United States Case.
The President. — That is the East Point Eookery Map.
Sir EiCHARD Webster. — That is the East Point Eookery Map. I
desire to call attention to the class of evidence by which the case I have
been making is sought to be met. I call attention therefore to n" 7 of
the maps annexed to the United States Case, the map of East Point
Eookery. I only take this one, without going through them all, because
it best illustrates what I mean, and I think the Tribunal will be surprised
when I tell them how this has been prepared. The thick red colour is
a survey by Mr, Stanley Brown of the breeding ground in the year 1891.
The continuous red line, as appears from the colour is supposed to be the
condition of the rookery in 1882, and the broken red line is supposed to
be the condition of the rookery in 1870; that is to say, this map is sup-
posed to show that it had gone from the dotted line up to the thick line
between 1870 and 1882, and had shrunk from the thick red line of the
hatched colour, as it is called, by the year 1891.
If any maps or records had been kept in the Islands possibly I say
there might have been some value about it but it is somewhat astonish-
ing when I tell you that these marks particularly the thick line and the
dotted line have been put down by people, two of whom have been
absent 14 or 15 years from the islands, from memory not going even
upon the islands again — made either in San Francisco or in some other
place where they were without a note or memorandum of any sort or
kind. I ask you to look at that part by the Sea Lion Point, look at the
lines opposite side of the Islands. Look at the way in which minute
curves are supposed to be drawn from memory and all I say is that that
class of testimony may be of some value to show general increase or
general decrease but can be of no value in order to form an estimate as
to whether or not the condition of the Islands is due to the killing of
females as distinguished from the killing of males. I give my learned
244 OKAL ARGUMENT OF SIR RICHARD WEBSTER, Q. C. M. P.
friends simply the references in each case to the affidavits where they
will find my statement supported, that these lines have been drawn by
people who have been absent in all but one case 10, 12, or more years
from the Island and from memory without notes. It is the United
States Case, Appendix n" 2, pages 3, 44, 00 and 167. Those are the
affidavits of the gentlemen, Mr. Morgan, Mr. Mclntyre, Captain Bryant
and Mr. Stanley Brown, Mr. Stanley Brown, of course, being responsi-
ble only for the plotting of what he saw in the year 1891.
Senator Morgan. — Did Mr. Stanley Brown's report have no reference
to Mr. Elliott's previous surveys"?
Sir Richard Webster. — None whatever, Mr. Senator; it was made
entirely upon his own surveys; in fact, it does not appear from any
reference in Mr. Stanley BroAvn's affidavit, so far as direct reference is
concerned, — you cannot tell if he had it or not.
Senator Morgan. — Mr. Elliott surveyed the same rookeries'?
Sir EiCHARD Webster. — Mr. Elliott surveyed the same grounds;
but no reference is made anywhere to Mr. Elliott's Rei^ort as I said the
other day by Mr. Stanley Brown.
Now, Mr. President, I was challenged the other day with regard to
the Russian figures of killing. I know now they will not dis]mte the
figures, but they say that we made an improper use of them. My point
is that prior to 1867 and 1868 no experience of the Islands would have
justified a killing of anything like 100,000. May I remind you for a
moment of how the matter stands! We say that the average of the
figures given on page 132 of the British Commissioners' Report, showing
the killing prior to 1868, shows an average of less than 40,000 a year.
They do not now dispute the authenticity of the figures so far as they
appear, of course, a few years were only estimates, but all the figures
come from United States sources. But what they say is, that you, the
British Commissioners, have behaved very unfairly and very improj)-
erly in estimating the figures at something less than 40,000 and your
case is an unfair case, because you have made that statement. I desire
to tell the Tribunal that in the United States Executive Documents,
N" 36 of the 41st session, Mr. Mclntyre, the witness referred to many
times by the United States reporting to Mr. Blaine in the year 1809, or
rather reporting to Mr. Boutwell, the Secretary of the Treasury, and
Mr. Boutwell sending it on to Mr. Blaine who was then the speaker of
the House of Representatives, — it is on page 15, — uses this language
with regard to tlie Russian killing, which, at any rate, show that the
British Commissioners were not less accurate thau Mr. Mclntyre, in
fact they have been more liberal.
From the same autliovity (that appears to be Vemianodoff), we learn that during
the lirst few years following the discovery of the Islands in 1781 over 100,000 skins
were annually obtained; but this it seems was too large a number, for the decrease
in the yearly return was constant until 1842, when they became nearly extinct; and
in the next decade the whole nuuiber secured was 129,178, being in 1852 but 6,564.
But from 1852 under judicious management, there a])pear8 to have been an increase,
and, in 1858, 31,8 LO were taken which was the largest catch in any one year until
1867, when, as I am informed, some 80,000 or 100,000 were secured under the supposi-
tion that the territory would soon be transferred to the United States.
Now that was the statement made perfectly impartially in 1869 by
Mr. Mclntyre that the largest annual catch in any year from 1842 down
to 1869 had been between 31,000 and 32,000.
Lord Hannen. — That is not in accordance with all these figures
because some are larger.
Sir Richard Webster. — In the year 1865— Yes — That is the first
that I see-
ORAL ARGUMENT OF SIR RICHARD WEBSTER, Q. C. M. P. 245
Lord Hannen. — There is some in 1859.
Sir Richard Webster. — It is just 32,000.
Lord Hannen. — And in 1865 it is 40,000 odd.
Sir EiCHARD Webster. — But your Lordsliip will notice that those
years 18G3, 1801 and 1865 have a query against them. I quote this not
for the purpose of saying one is as true as the other, but for the i)urpose
of showing the conclusion drawn with regard to the figures by inde-
pendent persons advising the United States many years ago was in
accordance with the independent judgment, made by the British Com-
missioners, and, yet it is in the face of this, that a grave attack is made
by the United States on the unfairness of the British Commissioners,
because they thought fit to say that the average of those years did not
exceed 40,000 seals ^er annum on an average of years.
Now, Mr. President, attention was called by my learned friend Mr.
Carter, or Mr. Coudert, to one or other of the replies from Naturalists.
I think, Mr. Coudert read professor Huxley if I remember and I want
the Tribunal exactly to understand how that matter rests.
Will you be good enough to oblige me by taking the first Volume of
the United States Appendix.
Senator Morgan. — May I enquire. Sir Richard, whether there is
evidence in this case to show that during the time of the rest which
the Russians gave to these Islands that they provided that sealing
might go on on one island while the other was entirely exempt.
Sir Richard Webster. — I do not know Mr. Senator Morgan, but I
think it is quite possible and a very reasonable suggestion. I do not
know how it stands. I do not remember it.
Senator Morgan. — I only called attention to it to have it looked into.
Sir Richard Webster. — It strangely accords with a note that I
have of an observation that I intended to make to this Tribunal as to
what might be reasonable with regard to these Islands, but I mention
this that I do not really know whether the " Zapooska" was sometimes
at St. George's sometimes at St, Paul's or how it is.
Now I want respectfully to caution the Tribunal on this, because it is
clear that these replies of the naturalists must be at any rate consid-
ered with some little caution though many of them are not against me
at all having regard to the way in which their opinion was invited.
W^ould you kindly look at page 415. A statement occurs there, by
Mr. Merriam, of supposed facts, upon which the expert gentlemen are
asked to express an opinion, and, it is not going too far to say, that in
many of these most important facts there was a serious controversy of
fact known to exist at that time. Therefore one must to a certain extent
regard the report and opinion, however distinguished the author of it
may be, with some little caution, having regard to the nature of the
memoranda which was put before them.
I will only call attention to the most important matters, and I will
take them, if you will bear with me, by the numbers. In paragraph
8 — I indicate those which cannot be taken as facts:
The act of nursing is performed on land, never in the water. It is necessary,
therefore, for tlie cows to remain at the islands until the young are weaned, which
is when they ai"o 4 or 5 months old.
Now there is not a passage in the evidence which justifies that state-
ment, that as a matter of fact, the pups are weaned before they are
four or five months old. The evidence on both sides shows that in the
end of July and beginning of August the pups are scattered all along
the islands and apparently weaning, in the ordinary sense of the word,
has taken jdace long before that.
246 ORAL ARGUMENT OF SIR RICHARD WEBSTER, Q. C. M. P.
Senator Morgan. — I believe it is true that the female seal, Sir
Eichard, never nourishes her young in the water.
Sir liiCHARD Webster. — Certainly, but that is not my point. My
criticism is with reference to the statement that it is necessary for the
cows to remain on the land until the young are weaned which is when
they are four or live mouths old. I addressed the Tribunal last Wednes-
day or Thursday on the matter and for reasons which I gave, I con-
tended that apparently the i^eriod of actual nursing by the motlier seal
before the pup becomes to a certain extent independent cannot be put
at the outside at more than five or six weeks.
Senator Morgan. — My question only related, you know, to the fact
that whatever nursing there was and whatever time was occupied was
necessarily on land.
Sir Eichard Webster. — And I never contradicted that.
Senator Morgan. — 1 was not aware Sir Eichard, that you had or
that I said you had.
Sir Eichard Webster. — I will deal with anything I can, of course,
but it does not really bear upon my point. My point of attack is the
statement that they are not weaned till they are four or live months
old. I say that that is not accurate. Then at the beginning of para-
graph 10 copulation takes place only on land, I say that that is not
accurate. Then 14:
Cows when nursing, and the non-breeding seals, regularly travel long distances to
feed. They are commonly found 100 or 150 miles from the islands and sometimes at
greater distances.
It is not too much to say that that is, at any rate, a very disputed
point. Here, it has been treated as an ascertained fact.
Then 17:
• The nonhreeding male seals ("holluschickie"), together with a few old bulls,
remain until January, and in rare instances even until February.
That, again, as a statement of fact, cannot be supported.
Then 18:
The fixr-seal as a species is present at the Pribilof Islands eight or nine mouths of
the year, or from two-thirds to three-fourlhs of the time, and in mild winters some-
times during the entire year.
The breeding bulls arrive earliest and remain continuously on the islands abont
four mouths; the breeding cows remain about six months, and the non-breeding
male seals about eight or nine months, and sometimes during the entire year.
I think that Is a grossly exaggerated — I will not say more than
that — .
Then 20:
In addition to the commercial killing above described, a number of male pups
were formerly killed each year to furnish food for the natives, but the killing of
pups is now prohibited by the Government.
When I remember that this report was written in 1892, and that the
killing of pups continued under protest, up till the year 1890, I think
the fact had perhaps better have been more distinctly stated.
Then at the top of page 417 — (I am only calling attention to the
most pointed ones) — You will see this:
Inasmuch as the number of seals annually secured by pelagic sealing represents
but a fraction of the total number killed, a glance at the above figures is enough to
show that the destruction of seal life thus pi'oduced is alone sufficient to explain
the present depleted condition of the rookeries.
Mr. President, I cannot but wonder whether, when this was written
Mr. Merriam had or had not been allowed the privilege of seeing Mr.
Elliott's Eeport? Those words obviously mean but a very small frac-
ORAL ARGUMENT OF SIR RICHARD WEBSTER, Q. C. M. P. 247
tiou. Of course, if it was 90 per cent, 95 per cent, or even 75 per cent,
there would be no object in i^utting it in — it would have conveyed to
the mind of an ordinary reader that a very small fraction indeed of the
seals that Avere shot at were recovered.
Then at the end of the 4th paragraph on page 417, you will see this:
It is evideut that this killiiif; of uonbreeding males could in uo way affect the size
or annual product of the breeding rookeries unless the number killed was so great
that enough males were not left to mature for breeding j)urposes. There is no
evidence that this has ever been the case.
I do not know now whether Mr. Merriam had seen Goff's Report, the
Treasury Agent Lavender's Eeport, Murray's Eeport which is in the
year 1890 and 1889, stating that 1889 he, Lavender, could not find
enough breeding males uj^on the rookeries that there was none left.
It is a most distinct statement. It may be right or wrong — that I sub-
mit to the judgment of the Tribunal, but, to say the least, it is rather
strong for ikerriam to state if he knew of this report that — there is no
evidence of there being any loss by virile males.
Then further down he says :
Having been selected by my Government solely as a naturalist, and having inves-
tigated the facts and arrived at the above conclusions and recommendations from
the standpoint of a naturalist, I desire to know if you agree or dilfer with me in
considering these conclusions and recommendations justified and necessitated by
the facts in the case.
I am not at all surprised, Mr. President, that gentlemen replying to
that ex parte letter and taking those statements to be facts, you find
some of their Ivei)orts more unfavorable to my contention than you
would j)erhaps have had, if a more accurate statement of the real con-
dition of the evidence had been put before them. But even then there
are certain matters which I think should be referred to. I call atten-
tion to the letter of Mr. A. Milne-Edwards, who is ''Le directeur du
museum d'histoire naturelle", in Paris. At page 419, in the end of the
second paragraph he says :
We know that our migratory birds are, duriug their travels, exposed to a real war
of extermination, and an ornithological international commission has already exam-
ined, not unprofitably all the questions relating to their preservation.
Would it not be possible to put fur-seals under the protection of the navy of
civilized nations.
And then on page 419 he says :
There is, then, every reason to turn to account the very complete information
which we possess on the conditions of fur-seal life in order to prevent their annihi-
lation, and an international Commission can alone determine the rules, from which
the fishermen should not depart.
Therefore he, with prudence and caution is not prepared to endorse
the statement suggested by Mr. Merriam that nothing but the absolute
X)rohibition of pelagic sealing is to be the remedy.
Then I come to the letter of the gentleman who writes from Chris-
tiauia, Mr. Collett. I am only of course taking those from which I say
evidence in my favour can be obtained. At page 421 he says :
My own countrymen are killing every year many thousands of seals and cyato-
2)lior(c on the ice barrier between Spitzbergen and Greenland, but never females with
young; neither are the old ones caught, or and that is the greatest number, the
young seals. But there is a close time, accepted by the different nations, just to
prohibit the killing of the females with young.
That is not in favour of complete prohibition of pelagic sealing.
I next read an extract from a letter from Dr. G. Hartland of Bremen
which will be found on page 422, in which he says:
I sincerely regret that for practical reasons it cannot be thought of to prohibit
fur-seal hunting for a few years entirely, as this would naturally assist numerically
the menaced animal.
248 ORAL ARGUMENT OF SIR RICHARD WEBSTER, Q. C. M. P.
Applying both to land and sea. Then Professor Salvador! from
Turin says on page 423 :
No doubt the fioe pelajiic sealiiijj is a cause, -wliicli will act to the destruction of
the seal herds, and to that it uuist be put a stop as soon as possible.
But at the sauie time, I think that the yearly killing of about 100,000 young males
on the Pribilof Islands must have some iulluence on the dlniiuutious of the herds,
especially preventing the natural or sexual selection of the stronger males, which
would follow, if the young males were not killed in such a great number. So that,
with the stopping of the pelagic sealing I think that, at least for a few years, also
the slaughter of so many young males in the Pribilof Islands should be prohibited.
That is a very remarkable thing showing that his judgment, even in
the face of the statement made that there was no evidence that there
had not been a sufficient number of males left, in Mr. Merriam's letter.
Then Dr. Elanchard who writes from Paris, says, in the third para-
graph of his letter at page 427 :
I will go even further than you, for I think it ui'gent not only to rigidly prohibit
the taking of the migratory Callorliiuue in the open sea, but also to regulate and
limit severely the hunting on land of males still too young to have a harem.
According to your own observations the male does not pair off before the age of
6 or 7 years and the female gives birth to only one pup at a time. It can be said,
then, that the species increases slowly and multiplies with difficulty. These are
unfavorable conditions, which do not allow it to repair the hecatombs which for
several years past have been and are decimating the species.
That points quite as much to the -regulating and dealing with the
matter upon the islands as at sea.
I next read from the letter from the two gentlemen at Stockholm, at
the bottom of page 428. After saying that the facts stated would form
a base for regulations, they say:
These regulations may be divided into two categories, viz — Imo. — Regulations
for the killing, etc., of the Fur-Seals on the rookeries in oriler to prevent the gradual
diminution of the stock ; 2do. — Regulations for the Pelagic Sealing or for the hunt-
ing of the Seals swimming in the ocean in large herds to aud from the rookeries, or
around the rookeries during the time when the females are suckling the pups on
land.
Obviously a very just and proper recommendation. Now I know
there are some others who accept "wholesale", (if may use the expres-
sion), Mr. Merriam's recommendation to condemn pelagic sealing and
pelagic sealing only. It is not doing too much to call your attention
to the character of the letter addressed to them by Mr. Merriam, and,
notwithstanding that, to the very important — statements and opinions
given in reply by some, of those distinguished naturalists.
Mr. President, it is said that pelagic sealing is the only cause that
has injured this race of seals. It is utterly impossible for my friends
even to prove it, I say it is utterly impossible for my friends even to go
near establishing any proof of it. I care not what figures are taken.
I will take the w^hole pelagic sealing up to any date you like to give.
The year they take is 1884, contrary to the facts found by the original
investigation of these matters by either Mr. Goff', Mr. Elliott, Mr. Mur-
ray, or anybody else — for the purposes of their case to day they say in
1884 a decrease observed. Why, Sir, if you took the whole pelagic
sealing up to 1884, and if you assumed that every one of the seals
killed to bear a pup, and if you assumed all tliose pups to live, it could
not have had anything like influence upon the year 1884 as suggested.
But, of course, that would be grossly unfair to pelagic sealing, because
the case made by the United States is that only one-half of the seals
that are born are males — that is to say, one-half are males and one half
females; and only one half of those males return as yearlings — that is
to say one quarter of the total number — and still less as two year olds.
ORAL ARGUMENT OF SIR RICHARD WEBSTER, Q. C. M. P. 249
And wlien I remind yon — taking it not from any Table that i.s disputed,
but from the total pelagic catch — the north-west catch, in and out side
Behring Sea— the numbers in 1879 are 11,090; in 1880, 15,227; and in
1881, 11,655 — if you apply even the tests of the United States Com-
missioners to that, the reduction in the year 1881 in two and three-
year-olds, could not amount to more than between 4,000 and 5,000 seals
if every one of the females produced a pup.
Mr. Carter. — How many do you say"?
Sir EiCHARD Webster. — I give the figures they are in the Talde
page 257 of volume II, of the Ai)pendix to the Counter Case of the total
Pelagic Catch. In 1879 it is 11,090; in 1880 15,227; in 1881, 11,655.
Mr. Carter. — I mean your statement of what it would amount to?
Sir EiCHARD Webster. — I say, if you assume all to be females, and
merely apply the death-rate from the United States table, the utmost
deficiency there could be of two and three-year-old's in the year 1884
would be between 5,000 and 6,000 seals.
But now, Mr. President, will you let me remind you what the condi-
tion of things is with regard to pelagic sealing. It is very well put,
Sir, at page 211 of the British Counter Case and the references are
given to the detail information about it in the Commissioners Eeport.
In the Case of the United States, it is olaiuied that this took phice coucurrently
with increased sealing in Behi'iug Sea and iu consequence of the death of suckling
female seals. But in 1884 only one Canadian sealiug-schooner is known to have
entered Behring Sea.
The first ship to enter was in 1883, the "San Diego", an American
shij).
But in 1884 only one Canadian sealing-schoouer is known to have entered Behring
Sea, and in 1885 but two schooners, and it was not till 1886 that as many as sixteen
vessels entered the sea.
ISTow the case made with regard to the killing and deterioration of
the holluschickie or the males is due to the fact it is said of the nurs-
ing mothers being killed iu Behring Sea. Now I need not do more than
put my point before the Tribunal to show the impossibility of sealing
to that extent inside Behring Sea, up to the year 1886, having had any
sensible effect on the rookeries at all the answer is whatever may have
been the diminution of general seal life unquestionably pelagic sealing
played its part, and I have not for one moment suggested the contrary
but you must look to some other cause to find the very large decrease
and, looking for some other cause, you find it in the evidence to which
I have called your attention.
Now with reference to the fact that in the years 1891 and 1892 that
there is no dimunition of the number of seals found at sea, you will
find at page 29 of the Second volume of the Appendix to the British
Counter Case, the Summary of the evidence of 132 witnesses as to the
seals being as numerous at sea iu the years 1891 and 1892, that so fiir
as you can gather from that testimony there has been no corresponding
decrease in the seals at sea, confirming another matter upon which the
Commissioners and others have expressed an opinion that the effect
of this treatment upon the islands may be to drive a considerable
number of the seals to the sea. I was asked by Senator Morgan whether
there was any evidence at all of these animals suffering from disease?
I expressed an opinion or rather 1 remarked that any race of animals
would indeed be extraordinary which was entirely free from disease to
which, as far as we know certainly all animals that have ever come
under our notice are subjected.
250 ORAL ARGUMENT OF SIR RICHARD WEBSTER, Q. C. M, P.
Senator Morgan. — I assume tliey must be necessarily the subject of
disease.
Sir IviCHA'RD Webster. — But there is very remarkable evidence
about it. 1 ought to have been able to answer it off hand, but I turn
to that which contains more knowledge and truth about Seal life than
anything else, and that is to the Eeport of the British Commissioners
I call attention to jiaragraph 339 of the British Commissioners Eeport:
It can scarcely be doubted tbat the fur-seal of the Noi-th Pacific is also subject to
diseases of various kinds, the prevalence or otherwise of which have their eifects ou
the numbers at each particular period. Inquiries made on the subject have, how-
ever, not brought to light any notable mortality which has been attiituted to dis-
ease, nor do ijrevionsly published reports include any mention of such mortality.
It may thus at least be inferred that no notably fatal disease has attacked these
animals while upon their breeding islands witliin historic times, but it is not safe to
affirm that disease has been wanting, or that epidemic diseases may not, at any given
time, appear, and require to be allowed for in any regulations made respecting the
killing of seals.
In the Report of Mr. C. H. Jackson on the fur seal islands of Cape Colony, already
referred to, he writes: "Upon several islands, esjiecially in the Ishabar group, are
to be found the remains of vast numbers of 'seal', proliably the effects of an epi-
demic disease at some distant jjcriod".
On the same subject and referring to the same region, Mr. H. A. Clark writes as
follows, quoting "Morell's Voyages": "In 1828 Captain Morell, in the schooner
'Antartic', visited the west coast of Africa on a fur-seal voyage. At Possession
Island, in latitude 26*^ 51' south, he fonnd evidence of a pestilence among the fur-seals.
The whole island, which is about 3 miles long, he states, was covered with the car-
casses of fur-seals, with their skins still on them. They a^ipeared to have been dead
about five years, and it was evident that they had all met their fate about the same
period. I should judge, from the immense multitude of bones and carcases, that not
less than half-a-million had jierished here at once, and that they had fallen victims to
some mysterious disease or plague." About 17 miles north of Possession Island are
two small islands not over a mile in length, where Captain Morell fouud still further
evidence of a plague among the fur-seals. "These two islands," he sftys, "have
once been the resort of immense numbers of fur-seals, which were doubtless destroyed
by the same plague which made such a devastation among them on Possession
Island, as their remains exhibited the same appearance in both cases".
Elliott, after stating that ho has observed no disease among the seals of the Pri-
bilof Islands, quotes a recorded instance of a plague affecting the hair seals of the
north of Scotland, Orkney and Shetland Islands, and adds: " It is not reasonable to
suppose that the Pribilof rookeries have never suffered from distempers in the past,
or are not to in the future, simjjly because no occasion seems to have arisen during
the comparatively brief period of their human domination".
At page 62 of the Census Report. I hapjien to know the jilace men-
tioned very well indeed, and some-thing about the seals, too — speaking
of the hair seal, Mr. Elliott puts this in his note :
The thought of what a deadly epidemic would effect among these vast congrega-
tions of Pinnipedia was one that was constantly in my mind when on the ground
and among them. I have found in the British Annals (Fleming's) ou page 17 an
extract from the Notes of Dr. Trail: " In 1833 I inquired for my old acfiuaintances,
the seals of the Hole of Papa Westray, and was informed that about lour years
before they had totally deserted the islands and had only within the last few montns
begun to reappear. . . About fifty years ago multitudes of their carcasses were cast
ashore in every bay in the north of Scotland, Orkney and Shetland, and numbers
were found at sea in a sickly state."
I cannot help thinking that with an enfeebled race for the reasons
which I have been referring to, and with the want of suj^ply of sufficient
virile males such a condition of things is not less likely in the future
than it has been in the past.
Mr. President, on many of the matters upon which I have addressd
you, there is interesting information to be found in connection with the
photographs which are before the court ; but of course I do not want to
stop to occupy time by those being examined, as the Tribunal can ask
lor information upon them if they desire anything further in that con-
nection.
ORAL ARGUMENT OF SIR RICHARD WEBSTER, Q. C. M. P. 251
The President. — May I beg to put a question to you, Sir Eicbard,
in regard to the statement you made a few minutes ago.
Sir Richard Webster. — Wliich is tliat"?
The President. — The statement with regard to the abundance of
fur-seals at sea. You say that the driving and ill-treatment of the seals
on the islands may have driven a great quantity of seals to the sea.
Sir Richard Webster. — Possibly.
Tlie President. — Do you mean to say they would resort to any land
during tbe time they were at sea?
Sir Richard Webster. — Oh no; I think there would be more found
at sea. Of course I do not want to reargue the question. My conten-
tion is that except for the purpose of reproduction, as with the bulls,
there is no evidence of the absolute necessity of going to land at all,
that a large number of the holluschickie do go, possibly by gregarious
habits, and possibly for other reasons ; but that I suggested to you that
it is not a vital necessity except in the cases to which I have referred.
The President. You admit, then, that they must go for those few
purposes.
Sir Richard Webster. — Certainly. It seems to me fair upon the
evidence to point out that in all probability a less number of these
animals would be likely to be found on the islands, and a larger num-
ber at sea if there was the amount of disturbance on the islands to
Avhich attention has been called; but of course. Sir, that they would
go back again in large numbers is equally plain when the disturbing
element was removed.
I was asked to hand in and before I conclude I propose to hand in
the paper of regulations. These, Sir, are the regulations which I, in
conjunction with my learned friend the Attorney General and my other
learned frieuds, submit to the Tribunal as the regulations which upon
the evidence, ought to be laid down by this Tribunal, assuming there
be proper management upon the islands; and I can only repeat that
which he put before you, Sir: these have not been framed as a bid in
order that they may be the subject of further expansion. They have
not been framed from our point of view of considering what is the least
we would oft'er, thinking the Tribunal ought to order more. Rightly or
wrongly, these have been framed with the intention of putting before
the Tribunal what would appear to be fair regulations, having regard
to the evidence as to the seals that ought to be protected in Behring
Sea, by which 1 mean the gravid females passing from through the
Aleutian Passes to the Pribilof Islands and the females in immediate
attendance upon the islands nursing their young. They are as follows :
Regulations.
1. All vessels engaging in pelagic sealing shall be required to obtain licences at one
or other of tbe following ports:
Victoria, in the province of British Columbia.
Vancouver, in tbe province of British Columbia.
Port Toionsend, in Washington Territory in tbe United States.
San Francisco, in the State of California in the United States.
2. Such licences shall only be granted to sailing vessels.
3. A zone of twenty miles around the Pribilof Islands shall be established, within
which no seal hunting shall be permitted at any time..
I do not propose to reargue, Mr. President, that that means a very
much larger zone in reality, because of the absolute necessity of observ-
ing the zone.
Senator Morgan. — You mean, sir Richard, that it shall be estab-
lished by law in both" countries'?
Sir Richard Webster.— Certainly.
252 ORAL ARGUMENT OF SIR RICHARD WEBSTER, Q. C. M. P.
4. A close season from tlie 15tli of September to tlie 1st of July, shall be estab-
lished, during which no ]ielagic sealing shall be permitted in Bebring Sea.
5. No rifles or nets shall be used in pelagic sealing.
6. All sealing vessels shall be required to carry a distinguishing flag.
7. The Masters in charge of sealing vessels shall keep accurate logs as to the times
and places of sealing, the number and sex of the seals captured, and shall enter an
abstract thereof in their official logs.
Probably some members of the Tribunal may not know tlie distinc-
tion between a " Log" and an " Official Log". The official log is that
which the Master is bound to enter up and deposit at certain places at
the end of every voyage; the daily log is only accessible if you can get
access to the ship. The official log is a public document, and must
be deposited under penalty. It is in order to insure that the infor-
mation may be accessible that it is proposed to enforce entries in the
official log,
8. Licences shall be subject to forfeiture for breach of above regulations.
Senator Morgan. — All these eight propositions, as I understand it,
are based upon the assumption that the two Governments, or the Gov-
ernments respectively, shall enact laws to that effect?
Sir EiCHARD Webster. — Certainly.
Lord Hannen. — And I suppose it is for that reason that you do not
go into the question of how these are to be enforced?
Sir Richard Webster. — It is for that reason, my Lord. I suggest
that what I may call the proper determination of this Tribunal would
be a determination of the regulations which ought to be made; from
the point of view of the necessity of preserving seal life and that it
would not be proper for this Tribunal, or just to the United States or
Great Britain, to dictate in what form the local municipal legislation ot
the two countries should be to enforce the observance of the regula-
tions, or what should be the amount of the penalty or the degree of
punishment. As regards clause eight we thought that it would not be
right that where there had been a breach of the regulations the license
should continue as though no such breach had taken place; but with
regard to the form of municipal legislation, I have conceived that the
actual machinery whereby the United States and Great Britain respec-
tively would legislate in order to carry out and enforce the regulations,
is a matter which should be left entirely to them.
Senator Morgan. — Sir Richard, if you please, n° 3 reads, "A zone
of twenty miles around the Pribilof Islands shall be established, within
which no seal hunting shall be j)ermitled at any time." The distance
between the islands of St. Paul and St. George is about 27 miles.
Sir Richard Webster. — Thirty-six.
Senator Morgan. — If you say "around the Pribilof Islands", I do
not know where the centre of that zone would be.
Sir Richard Webster. — The regulation means from the nearest
land, Sir. That is the proper expression. " Around the Pribilof
Islands" like the selvage, or border. It is 20 miles from the nearest
land, and there would be no right to go between the two islands.
Lord Hannen. — You might express it, then, as within twenty miles
of any land.
Sir Richard Webster. — Within twenty miles of the nearest point
of land. It practically is extending the three mile limit for the pur-
poses of this case by convention; because, Mr. President, as you
observe, these regulations which are being suggested, to be determined
by the Tribunal as though by agreement between the two nations;
failing agreement between the two nations, they are being established
ORAL ARGUMENT OF SIR RICHARD WEBSTER, Q. C. M. P. 253
by this Tiibmial. And upon the point Avliich I think Lord naiinen
aud Senator Morgan directed my atrention to, it is not to be supposed,
for reasons that I will say a word about in a moment, that two nations
agreeing with each other, would consent to delegate to the other nation
the form of determination as to what shall be the legislation which the
particular nation would itself lay down. To ijoint my observation:
the United States would never consent to Great Britain dictating
to the United States what would be the form of the United States
legislation.
Lord Hannen. — The regulations cannot be carried out in either
country without legislation.
Sir EiCHARD Webster. — In neither country could the rights of
nationals upon the high seas be interfered with except by municipal
legislation.
Senator Morgan. — And therefore there has to be in both govern-
ments legislation that is as nearly parallel as it can be made.
Sir Richard Webster. — Subject only to the good feeling and good
faith on the part of the Government making the legislation, that the
act or statute shall be eflective for the purposes for which it is intended.
Senator Morgan. — Then 1 understand that if we should adopt regu-
lations, with such amendments as you have proposed to them, that
these regulations would have no sanction for their enforcement except
the fact that this award would make them a part of the treaty obliga-
tion between the two Governments.
Sir KiCHARD Webster. — I consider. Sir, it would be just as though
the two nations had agreed upon regulations and then there would be
a moral obligation upon each country to give effect to that agreement,
and that moral obligation would have as much effect, of course and be
as much respected, as if it were a legal obligation.
Senator Morgan. — Aud in the case you suggest, of either govern-
ment failing to carry into effect by law regulations that were satisfac-
tory to the other.
Sir Richard Webster. — I have not suggested that.
Senator Morgan. — I am suggesting it — or any regulations at all, then
the remedy of the other Government would be only to hold that the
Government failing to carry them into effect had not complied with its
treaty obligations.
Sir Richard Webster. — I should think so. There was one regula-
tion that we did not think it right or proper, Mr. President, to insert,
because it seemed to me it ought to come essentially from the Tribunal,
and that is as to whether or not these regulations should continue for
a definite time or should be supposed to be in perpetuity. Of course,
in one sense the Tribunal could not affect the rights of the nation.
Assuming that the award, being enforced by municipal legislation,
and in five or ten years time either the United States shouUrtake the
view that it was not satisfactory, or that Great Britain should take
the view that in the circumstance then shewn to exist the state of things
was not satisfactory, no award of this Tribunal could limit the right
of the country in the future to say.
The President. — I can hardly think it is permissible that you should
say such a thing before us. We are doing serious business, and the two
Governments have pledged themselves to execute whatever we award.
If they break their word, of course they can do so, but they have pledged
themselves.
Sir Richard Webster. — If you will forgive me for a moment, I was
going to deal with that matter. I ha<l not finished the mere expression
254 ORAL ARGUMENT OF SIR RICHARD WEBSTER, Q. C. M. P.
of tlie proposition. I desire to say that if there was a changed state of
circumstances after the reguhitious were in force that coukl not legally
alter the right of a country to say. " We must make a fresh bargain ;"
but I desire to point out that after this full discussion — that was the
very word on my lips — tliis Tribunal may be of oi^inion that it has suffi-
cient information to indicate that at any rate they can see so far into
the future as to be able to say either that the regulations are so moder-
ate that they will always be useful or at any rate that they ought to
last for a period of years: and it seems to me that if the Tribunal took
that view then they would or might indicate upon the face of tiie reg-
ulations that they ought not to be touched or interfered with or
denounced by either Government for a i^eriod, or not until after the
period of a given number of years, and then that the moral obligation,
as strong as the legal obligation, would be imposed upon those countries
for whatever time the Tribunal should indicate. I hope you will follow,
Mr. President — I apologize for having ventured to interrupt you — that
that was what was in my mind, the sequence of what I desired to put
before you that if the Tribunal desired to indicate that either in all
time or for a period of years which they thought sufficient to indicate,
the regulations ought to be maintained unaltered then the moral obli-
gation would rest on the nations as I have already said. I did not mean
in anyway to suggest that either country ought to do otherwise than
loyally act up to the award. On the other hand, I feel it my duty to
point out that the Tribunal itself cannot tell for certain what the effect
of regulations may be. It may be that the herd of seals will become
so numerous that they will be in such a condition as to be an injury to
the fishing industry of the Pacitic. It may be that the herd will not be
sufficiently protected for all time, and that therefore the United States
may ask for some further protection. According to the best of their
lights the Tribunal should, if I may humbly submit, deal with that
matter; and it is for that reason that I did not think it respectful to
the Tribunal to intimate whether there should be a suggestion by the
Tribunal that the regulations should be maintained for a limited time
or should be indefinite as to time.
The President. — The point was whether it would be wise for us to
foresee a change in circumstances and to legislate for perpetual mainte-
nance of our regulations. That was the question in my mind.
Sir Richard Webster. — Yes sir; I have one or two questions to
notice.
Before any general scheme for the preservation of seal life as a whole,
some opinion must be formed, some mental decision must be come to as
to what is a proper condition of things upon the islands. It is abso-
lutely necessary. You may not say anything about it in your award;
that I have nothing to do with but in making up your mind what regu-
lations are necessary as a restriction upon the rights of the jielagic
sealer you must have formed some opinion in your mind as to what Avill
be the de facto exercise of rights by the United States upon the islands.
For instance, supposing that you were of opinion that the United States
were going to kill every seal within the next five or six years, as they
say in law they have a right to do, and I do not deny their legal right to
do it; supposing you were of opinion that the United States were within
the next five or six years going to kill every seal on the islands, there
would be no necessity of regulations at all. On the other hand if you
were of opinion that the United States were going to be moderate in
the exercise of their so-called rights, then the pelagic sealer, who would
be entirely benefitted by that moderation, ought to have his rights
ORAL ARGUMENT OF SIR RICHARD WEBSTER, Q. C. M. P. 255
restricted. And from that point of view, notwitlistanding the observa-
tions of my learned friends I say the British Commissioners approached
the problem of zone fairly. Whether or not the particular figures they
suggested would be what this Tribunal would think to be fair is entirely
a different question ; but speaking of it as a proposal, it was a perfectly
legal and rational way of dealing with the whole question.
I am afraid my learned friends and those they represent care so little
for suggestions made from Great Britain that they probably will think
it impertinent of me even to make a suggestion; but having studied this
matter, I only put it for their consideration : I think if they were to kill
off a certain proportion of the old bulls, really effete bulls, every year,
and never drive a seal twice, that is to say, kill all they drive, at any
rate, any distance more than a few hundred yards, and periodically
leave certain of the rookeries undisturbed, there would very soon be
an enormous increase in these herds of seals. Of course my learned
friends may suggest that it is impertinent of me even to have made a
suggestion of the kind. They may think that nobody appearing for
Great Britain lias a right to express any opinion with regard to man-
agement u])on the islands. Certainly the experience in the past would
seem to indicate that a little more control is, to say the least of it, desir-
able. Almost as much has been practically conceded by the United
States Case. But, Mr. President, I cannot help thinking that in fixing
any regulations, whether in Behring Sea, and still more, as I will say, if
you will permit me, afterwards, outside Behring Sea — in fixing any regu-
lations dealing with the question of seal life as a whole, nobody could
properly consider the problem without liaving formed in his own mind
some standard idea, as to the way in which the islands will be con-
ducted, and the extent to which the killing will go on in any particular
season.
The Tribunal here adjourned for a short time.
The President. — Sir Richard, we are ready to bear you.
Sir Richard Webster. — Mr. President, tlie Tribunal will notice
tliat tke Regulations that we propose are confined to Behring Sea; in
four respectful contention to this Tribunal looking at the matter as care-
fully as possible, it seems to us impossible to come to the conclusion
that the jurisdiction of this Tribunal was intended to extend anywhere
over the ocean. Our submission is that the area of jurisdiction for the
purposes of Regulations is the same as the area of Right. But I par-
ticularly desire that the position of Her Ma;iesty's Government should
not be misunderstood; Her Majesty's Government, and the Canadian
Government have, from tlie first, been willing, and have expressed their
willingness, to concur in any reasonable Regulations for the protection
of seal-life as a whole — I mean of seal-life generally; on the grounds
we have explained in argument we submit that the jurisdiction of this
Tribunal to make Regulations is confined to the area in dispute — that
is to say that part of Behring Sea, east of the line of demarcation men-
tioned in the Treaty of June 1867.
I cannot help reminding you Sir, of one sentence in passing — that if
that were not so, you would apparently have jurisdiction to make Regu-
lations for the Commander Islands without the presence, here, of Russia,
because those are equally seals in or habitually resorting to Behring
Sea; and therefore it woukl seem to point, of necessity, to tlie original
area which was the subject of so much discussion.
The President. — May I remind you that the Regulations we have to
do with are merely between England and the United States.
Sir Richard Webster. — That is entirely why I pointed it out, if I
may say so.
256 ORAL ARGUMENT OF SIR RICHARD WEBSTER, Q. C. M. P.
The President. — There would be no objection in principle even for
them to bear on the Commander Islands.
Sir EiCHARD Webster. — That is why I ventured to point it out, I
only submit it; I must not re argue it.
Lord Hannen. — You can scarcely say that the seals in the Com-
mander Islands hahitualhi resort to the Pribilof Islands, even tliough
they may sometimes go there.
Sir Richard Webster. — There is nothing about habitually resort-
ing to the Pribilof Islands, my Lord. It is habitually resorting to
Behring Sea.
Mr. Justice Harlan. — But Question 5 speaks of seals frequenting
the Pribilof Islands.
Sir Richard Webster. — I am only too glad to know that my argu-
mentlias been appreciated by every Member of the Tribunal. In Ques-
tion Sit is, "in the fur-seals frequenting tlie islands of the United
States in Bebriiig Sea"; and in Article VII it is " for the proper jiro-
tection and preservation of the fur-seal in, or habitually resorting to,
the Behring Sea". You must not tempt me to reargue this point.
Mr. Justice Harlan. — Then I withdraw my observation.
Sir Richard Webster. — No; the observation must not be withdrawn ;
but owing to the President's unfailing courtesy in making that observa-
tion to me, it did occur to me it was worthwhile noting in passing that
some limitation must be put on those words "in any event". But would
you be good enough to consider the particular ])oint I am upon; and
that is the position Her Majesty's Government took with regard to Reg-
ulations outside Behring Sea.
Senator Morgan. — The jurisdiction over seals that may be found in
the Pribilof herd is not necessarily a jurisdiction over Commander
Islands.
Sir Richard Webster. — There is nothing about "Pribilof herd",
Mr. Senator.
Senator Morgan. — I think, Sir Richard, there is something.
Sir Richard Webster. — Well, if so, it has escaped my attention.
I do not think there is anything about Pribilof herd. •
Senator Morgan, — That is my own characterisation of the class of
fur-seals that resort habitually to Behring Sea.
Sir Richard Webster. — I do not think there is any distinction, for
that purpose, between seals going to the Commander Islands and the
Pribilof Islands.
Senator Morgan. — I merely mention that the jurisdiction exercised
would not be over the Commander Islands, but over the seals.
Sir Richard Webster. — Then, again, though I am being led away
from the point I am closely devoting my attention to, it would be in
favour of the argument I am presenting. If they are to be given that
large area, they Avould extend to other seals, —
Senator Morgan. — If it is in favour of your contention, Sir Richard,
you are welcome to it, so far as I am concerned.
Lord Hannen. — As Mr, Gram has pointed out to me, our enquiry is
in regard to the questions that have arisen between the United States
and Great Britain in these matters; and no question has arisen as to
the Commander Islands.
Sir Richard Webster. — Mr. Gram has put and your Lordship has
put to me again that which I ventured humbly to call the attention of
the Tribunal many days ago, I am sure you will forgive me for say-
ing that, because you will thereby see that I have not overlooked the
point though I abstain from arguing it over again. 1 am assuming
that the Tribunal exercise their own impartial judgment on the matter
ORAL ARGUMENT OF SIR RICHARD WEBSTER, Q. 0. M. P. 257
I am only desirous tliat tlie position of Her Majesty's Government
sliould be" known. AVe submit that it is established that the maximum
number of seals to be killed on the Pribilof Island ought to be limited
in any year to the number which the condition of seal life upon the
islands will permit without unduly reducing the stock.
Senator Morgan. — Have you any number, SirEichard, to state?
Sir EiCHARD Webster. — It must be less than 1(10,000, Mr. Senator.
I should say, if you ask me to make a submission to the Court; the out-
side number, according to the present state of things, would be about
00,000 as a real, regular annual figure.
That such maximum number should be from time to time fixed by
competent inspectors appointed by the United States Government, hav-
ing regard to the observed state and condition of the seals, and that
full and sufficient records should be kept of the number and sexes of
the seals on the islands.
Senator Morgan. — And subject to a reduction below 60,000 in case
of necessity.
Sir Richard Webster. — Certainly, I have indicated that by saying
it should be fixed from time to time by the United States Inspectors,
looking to the observed condition on the Islands.
That all drives on the Islands ought to be carried out under the per-
sonal supervision of competent United States Government ofiQcials who
should be responsible for the due observance of any regulations laid
down by the United States.
The President. — That is a suggestion of yours.
Sir EiCHARD Webster. — I am iiointing out to you what are the con-
ditions that are necessary for seal life as a whole, regarded as distinct
from pelagic sealing in Beliring Sea. I am assuming that what was so
much pressed by Sir Julian Panncefote is being considered, that is to
say, the general welfare of seal life in Behring Sea on the Islands and in
the Pacific.
The President. — Altogether.
Lord Hannen. — Did not I catch from you something about a joint
action between the English and the United States.
Sir EiCHARD Webster. — I was suggesting this, which is only that
which has been agreed to by Eussia, that suitable persons designated by
the Government of Her Britannic Majesty should be permitted to visit
the seal islands from the 15th June to the 15th December to inspect and
take copies of the records and confer with the officials in order to obtain
necessary information as to the real conditions of seal life.
Senator Morgan. — Thatis with a view to further negotiations between
those Governments.
Sir EiCHARD Webster. — Quite so, Senator. It is with a view that
you may understand the position which has been for more than five years
maintained consistently and ])ersistently by Her Majesty's Government,
and that, upon those conditions being assented to or arranged, Her
Majesty's Government are perfectly willing to provide by necessary leg-
islation that there should be no pelagic sealing outside, that is to say
anywhere at all prior to the 1st May on the assumption that the United
States would agree equally to limit their nationals fixing a correspond-
ing date, it may be a fortnight earlier; I do not know. The question was
put to me — San Francisco is about 800 miles lower down, and I should
think that a fortnight/<earlier would be the proper date to take. That
is suggested to me by ]\Ir. Tupper and those who well understand this
matter, that a fortnight would be a reasonable time between Victoria
and San Francisco.
B S, PT XIV— "17
258 ORAL ARGUMENT OF SIR RICHARD WEBSTER, Q. C. M. P.
My position, which at any rate has been made clear, is this: the Gov-
ernment of Her Britannic Majesty has as much at heart the welfare of
the seal race for the benefit of pelagic sealers as the United States can
have for their nationals. It is a more important interest in Canada than
it is to the lessees, and the few dollars that go into the Treasury of the
United States.
The President. — That is what we may derive from the terms of the
Treaty.
Sir Richard Webster. — And we are most anxious that a proper
arrangement should be made, and as I have said, and I wish to repeat.
Sir Julian Pauncefote expressed it over and over again, but that is
perfectly independent of the questions that had arisen as a matter of
controversy and which are, for the reasons we have submitted, to be
arbitrated upon by this Tribunal.
The President. — It being admitted that both nations very sincerely
wish for the preservation of seal life, you will permit me, Sir Richard, to
ask you a question ? I heard you mention, possibly as making an admis-
sion, for it is the general wish of both nations, that you supposed the
fair average number of seals proper to disjiose of on the Islands would
amount to 60,000?
Sir EiCHARD Webster. — I was asked by the learned Senator to
make a suggestion and I believe that is the maximum.
The President. — Will you allow me to ask — it is a theory, and we
can only admit this as a theory, as we are not here to make Regulations
inside the territorial rights of each nation, how many seals would you
suppose nnght, on an average, be taken by pelagic sealing every year?
Sir Richard Webster. — You see Mr. President, that would prac-
tically speaking correct itself, because the character of i)elagic sealing
is tliat only a certain proportion, so to speak, of seals can be captured.
It is not possible, as was suggested by Mr. Coudert, for ships to »rowd
the sea and kill every possible seal. I should have thought in that
respect, a part from questions of discrimination, it is perfectly true that
pelagic sealing contains in itself a self correcting element or safety
valve so to say. — Thatyou cannot kill an exceptional number, but remem-
ber that I have assumed that the original Regulations to which I have
called attention are supposed to be enforced under any circumstances
which imposes the condition of no pelagic sealing at all in Behring Sea
up to the 1st July, and no pelagic sealing at any time within a fixed
limit, rigidly speaking, of 20 miles, which means practically 30 miles.
We assume those to be in force always, and I submit under the circum-
stances that pelagic sealing cannot practically injure the race.
The President. — Though it may take a very large j^roportion, — as
we have seen in the last year — a very large amount of seals?
Sir Richard WEBSTER.—Well that depends, Mr. President, on what
you mean by "proportion". If you only mean " quantity" they may
take a large quantity.
The President. — I mean both.
Sir Rkiiiard Webster. — Well, I should have doubted, with all
respect, if " proportion" was a correct expression. Would you define
first with what you would compare it?
The President.— With the killing on the Islands.
Sir Richard Webster. — I should have doubted if the outside num-
ber of seals that could be killed on the Islands under any circumstances,
would amount to more than something a little over 60,000. I do not
think, or rather I should say I submit it to you that the pelagic sealing
9,t sea will affect that number for this reason, that the seals taken at
ORAL ARGUMENT OF SIR RICHARD WP:BSTER, Q. C. M. P. 259
sea by pelagic sealiug taken on onr submission, to a large extent are a
class of seals not freciueiitiiig the islands at the time. 1 do not refer
to that, but the barren females who will be found away from the islands,
and a large number of otlicrs, have no motive or inducement to go —
take the male seals which are not forming part of the breeding or
producing stock upon the islands.
The President. — We have had the number of seals killed at sea
last year and the year before, and the amount was 70,000.
Sir EiCHARD Weester. — You are speaking, I think, of the amount
of seals killed in 1891.
The President.— 1891 and 1892.
Sir KiCHARD Webster. — To a large extent outside of Behring Sea.
The President. — And Behring Sea is to be added.
Sir EiciiARD Webster. — As a matter of fact there were killed
there, Sir, 500 only.
The President. — It should be added if Behring Sea was left open.
Sir EiCHARD Webster. — Of course, one must have it one way or
the other. It cannot be put against me both ways. All pelagic sealing
up to July 1st is stopped, and you have to contrast the new state of
things with the old; and my submission to this Tribunal is that after
the 1st July in every year sealing in Behring Sea would stand at
about a normal figure. It may be 30,000 or 25,000 or thereabouts, but
it would be directed to and attack a class of seals that to a large extent
would not be going to the Islands, and would never be got by the
people on the Islands at all. I have endeavored to make my point clear
on that, and I hope I have done so.
The President. — You do not say outside Behring Sea there would
not be seals killed also.
Sir EiOHARD Webster. — Outside Behring Sea; the position of Her
Majesty's Government is that upon reasonable arrangements made that
an undue quantity should not be killed on the islands they would be
willing to prohibit pelagic sealing until the 1st of May which would
cut off all the dangerous killiug, outside as well as inside.
The President. — What do you consider not to be dangerous?
Sir EiCHARD Webster. — The killiug of seals south of the Aleutian
Islands after the 1st May, and in Behring Sea after the 1st July, out-
side the 30 mile zone, dealing with the matter as a whole. If I have
not made the point clear. Sir, I would ask you to put the question
again.
The President. — I think you have made it quite clear; but I also
think that the questions I have put have contributed to make it more
clear to me at any rate.
Sir EiCHARD Webster. — I have not the smallest doubt as to that,
of course, Sir.
The President. — And I would like to know the total average in the
killing of seals that is admissible both on sea and on land.
Sir EiCHARD Webster. — The killing of seals, both male and female
altogether would amount to something like 90,000 or 100,000, but you
must not understand me as admitting the absurd contention that killing
a female necessarily reduces the number of a herd. I do not want to
go back on that: it is such an outrageous contention.
The President. — That has been argued very fully.
Sir EiCHARD Webster. — Because if what I say were so, the herd
would have disappeared years and years ago, because hundreds and
thousands are killed every year. If you put it to me what is meant by
the total killiug, I should say a total killing on land and sea of between
260 ORAL ARGUMENT OP SIR RICHARD WEBSTER, Q. C. M. P.
90,000 and 100,000 of which about 60,000 are killed on the Islands and
between 30,000 and 40,000 at sea. I do not refer to the Russian side,
but the catch on the coast and in Behrinj^ Sea. I must not be under-
stood as to be gfoing back from the position that both my learned
Leader and I took up as to what is the function of this Tribunal under
Article VII.
Senator Morgan. — Kow, Sir Richard, as to the License System pro-
posed here ; I wish to ask a question for information, in order to ascer-
tain the attitude of the Counsel for the British Government. Does this
system, as you propose, require that all licenses shall be taken out at
the particular ports, and that other i^elagic hunting is unlicensed?
Sir Richard Webster. — So far as our nationals are concerned, it
would be unlawful.
Lord Hannen, — They would have to clear from those Ports?
Sir Richard Webster. — And be licensed to seal. Our object is to
be satisfied that the country gets full information, and that the vessels
are obliged to be under proj^er control.
The President. — And what as to the Indians sealing on the coasts?
Sir Richard Webster. — If I were to speak of that in the way in
which I think it ought to be spoken of, perhaps my learned friends
would get angry.
Mr. Carter. — No, Sir Richard, please do not hesitate on that score.
Sir Richard Webster, — I assure you I have a very great considera-
tion for it; but the Indians on the coast or many of them have become
and developed into being pelagic sealers. Several of the schooners are
actually owned by Indians, and to suggest that they are to be specially
protected, according to the philanthropic instincts of my learned friends,
paddling their own canoes, two at a time, and wearing the seal-skins, I
do not tliink contributes much to this very interesting discussion.
Senator Morgan. — I suppose, under your system, either Great Britain
or the United States would have to establish a way to prevent citizens
of both countries from obtaining licenses as fictitious traders?
Sir Richard Webster. — I will say a word or two on that in a
moment.
Now, what have I on the other side? The burthen has rested entirely
on Great Britain of arguing this question of Regulations. My learned
friends, Mr. Phelps and Mr. Carter, in their wisdom, on behalf of the
great Country, one of the mightiest countries in the World, have
thought fit to propose to this Tribunal a Regulation which they know
and must know is degrading to my Country. They ask you, this Tri-
bunal, to say this: — Decide every issue of right against the United
States, the issues they themselves selected, — decide them against the
United States; say that British, French, German, Italian and all
countries are to have equal rights upon the high seas; but so far as
Great Britain is concerned the next moment destroy that right abso-
lutely and for ever over an area that never entered into the purview of
the United States Representative or Great Britain's Representative
when it was being discussed. I confess to my country it was somewhat
humiliating to hear the United States suggest that this was the kind
of thing to be enforced on Great Britain by the Award of this Tribunal.
Mind, Sir, you are making an Agreement for the parties; and when I
look at this proposal and at the attitude of the United States, the ships
of Great Britain and under the British flag are to be seized and taken
in by United States cruisers and condemned in United States courts.
Why, it is not 20 years ago, or barely 20 years ago, wlien the United
States absolutely claimed that the United States flag, even if fraudu-
ORAL ARGUMENT OF SIR RICHARD WEBSTER, Q. C. M. P. 261
lently exhibited, was to be a protection against either search or seizure.
When Great Britain protested that, if a fraudulent use of tlie United
States flag was made so that it covered the Slave Trade which was
recognized as unhiwful in both Countries, facilities ought to be given
for the search. "jSTo", said the United States, "our Hag is inviolable
upon the sea"; and yet, in the face of this, it is to be suggested that
you are to impose upon Great Britain the humiliation that you are to
tell Great Britain her vessels are to be seized by American cruisers and
taken into the nearest port. I think a little consideration might have
brought it to the minds of those who instruct ray learned friend that
such a liegulation was not a Kegulation fit to be submitted to this
Tribunal. But I ask the Tribunal to consider it from another point of
view. Will you remember the concluding words of article YIl ?
The High Contracting Parties furthermore agree to co-operate in securing the
adhesion of other Powers to such Regulations.
The Regulations are to be such that Great Britain and the United
States can have a reasonal)le hope of inducing other Powers to adhere
to them on the ground of humanity and of mutual self-interest and
some other grounds which may commend themselves; but, on the
hypothesis that we are discussing, there will be no such inducement
that can be offered. Every other national is to be excluded from seal-
ing over these millions of square miles, an area, as the Attorney General
pointed out, vastly larger than ever entered into the minds of the des-
potic potentates in years gone by; and I want to know how would it
b(f'possible to prevent the very abuse that Senator Morgan called atten-
tion to a moment ago that of sailing under foreign flags, a thing to be
deprecated by every right-minded citizen or subject, — Japan or Russia
to say nothing of the flags of other countries would be, of course, an
ample protection assuming Great Britain to be the only nation whose
nationals were prevented from sealing over this vast area.
But I take leave to say on behalf of Great Britain it is not a regula-
tion at all. Prohibition is not Regulation, and many examples of that
can be given. We know with reference to the liquor traffic — we know
what regulating the sale and manufacture of intoxicating liquors is,
and we know what prohibiting them is. In no Court save in this could
it be possible to suggest that you are under cover of a regulation to
enforce an absolute and positive prohibition. Sir, the United States
say that they will not discuss this question of regulations at all. Noth-
ing will satisfy them but absolute and total prohibition over this vast
area. Would that promote peace? We hoped in all probability that
my learned friend Mr. Phelps might indicate that there was some inten-
tion of discussing the basis of regulations from a more moderate stand-
point. But no: at the invitation of my learned friend the Attorney
General, Mr. Phelps said he should maintain that those were their
rights; that by the form of regulations read by Mr. Foster, at the con-
clusion of the Attorney General's speech, on behalf of the United States
he elected to stand; and, as ptfrt of that, the right claimed by the
United States, for the first time for 50 years, is of searching and seizing
vessels of a friendly flag, in time of peace, on the high seas; taking
them in and condemning them in their own ports, as though they were
pirates, or, to use the phrase actually used in the United States argu-
ment, hostes humani generis. There is not a suggestion of this in the
Diplomatic Correspondence all through these years; no suggestion
made that such a proposal is to be agreed to by Great Britain, and I
remind you with great respect, Mr. President, that this Tribunal is
262 ORAL ARGUMENT OF SIR RICHARD WEBSTER, Q. C. M. P.
only making for tlie parties the a^Teement which, according to the
judgment of the Tribunal, they ought to liave made for themselves.
Could any body suggest in fairness, with any lingering feeling that
there ought to be in the breast of the United States towards the Old
Country, that the degrading prohibition, with reference to the right of
seizure and search by the national ships of the United States, should
be imposed on Creat Britain in the interest of the preservation of seal
life, no necessity for such a thing having been shown, and it being
foreign to any reasoiuible scheme that has hitherto been suggested.
Sir, I hope, at any rate, difficult as my task may have been, and ])er-
formed, without appreciating, i)ossibly, the full weight and proportion
of every point, that I have, at any rate, satistied this Tribunal that the
proposals of the United States are unjust in themselves, and such as
this Tribunal would not in any way enforce. I ask you again to believe
that which has been put forward so clearly by the Attorney General,
that we have approached this question of regulations with the honest
intention of assisting the Tribunal to get at the facts, with no desire
to injure the seal-race, or to require for the pelagic sealer anything that
belongs to the United States. It is a connnon interest to be protected.
Our rights are supposed to be declared. Those rights are to be pro-
tected, and to be interfered with only if it is necessary to prevent the
destruction of seals. If the United States desire to reserve to them-
selves the monopoly of destroying seals entirely, they will always
have that as they have the possession of these islands; but the regu-
lations which this Tribunal should direct, we respectfully submit, are
regulations based upon the fact that the rights of British subjects, and
of all other nations, to seal upon the high seas has been established,
and that those rights are only to be curtailed to the extent that is
necessary in order to prevent their injuriously affecting the seal race.
Sir, it may occur in the rest of this case that some point has escaped
my attention, and should such point be started we may have to ask you
to hear us upon it, but I ask the Tribunal to be good enough to take
into their consideration that which we have addressed to them on this
question of regulations; and we believe, at any rate, that the Award
of this Tribunal, or its determination, will be just and equitable, and
will not be couched in such a way as it must be couched if it adopted
the United States Begulations to destroy at one stroke the rights i)re-
viously declared to exist in British sealers.
The President. — Sir Eichard, with all thanks and gratitude for
your very business-like and useful argument, let me put one question
more to you. According to what you suggest, as to the measure ot
police which might be adopted in your Regulations towards the sealers
of each nation, do you mean to say that the ])olice even during the
close season and within the close area, should belong exclusively to
the public navy of either nation concerned.
Sir Richard Webster. — No, Sir, what 1 mean is this. I only con-
tend for that for which the United States universally contended up to
this point, and which Russia, Great Britain, France, and, as far as I
know, every other civilized country has always contended for success-
fully that if a ship is found infringing the convention by the shii)s ot
another nation it shall be handed over for justice to the Courts of its
own flag.
The President. — You admit of its being arrested by a foreign ship
then.
Sir Richard Webster. — Assuming it to have broken the Treaty
and assuming that Treaty to be in force with the country whose flag
the vessel was flying. Thus it is j)rovided that if British vessels are
ORAL ARGUMENT OF SIR RICHARD WEBSTER, Q. C. M. P. 263
seized by Eussians, tliey sliall be fortliwith liauded over at Yokoliaina
or at auy port in the British possessions for trial by tlie British author-
ities, and I say, with deference to my learned friend Mr. Phelps experi-
ence, and anybody who is acquainted with these matters of international
comity and agreement, that I am aware of no case where a civilized
nation has allowed her ships to be seized and handed over to other
Tribunals except in cases in which the country has practically agreed
to the establishment of Courts, which Courts are to have jurisdiction
over their own subjects. A case very familiar to you, no doubt, Mr.
President, is that of Tunis, where Great Britain, has recognized the
Existence of the French Courts in Tunis and has consented to abolish
her own consular courts there. But 1 am aware of no case where it
has been insisted that the United States cruisers may seize British
ships and condemn them in United States Courts.
The President. — I would ask, Sir Eichard, if it is your opinion that
these matters should be within the sphere of the Eegulations that we
have been called upon to make?
Sir Eichard Weesier. — I should have thought not, Sir, I should
have thought you were intended to determine, and I speak with great
deference, what Eegulations were necessary for the preservation of seal
life and not intended to tell either nation, that is either the United
States or Great Britain, how the Eegulations so determined upon were
to be enforced for their respective nationals. Might I put another case ?
Suppose you should be of opinion a fine of $500 would be i)roper fine
for a breach. I do not think that that would be the kind of thing to
be imposed by these Eegulations.
I think the United States would be entitled to say that we think
$500 is too much or too little. That is a matter that the Tribunal might
have left us to carry out. My reading of these words is Eegulations
necessary for the preservation of seal life — not Eegulations to enforce
the Eegulations wiiich are necessary — and it would reem to me that
the purview of your jurisdiction would be governed by the words,
" what is necessary for the purpose of the protection of seal life", and
not " what is necessary for the purpose of enforcing those Eegulations"
which you have yourself described. I do not know if I make my mean-
ing clear?
The President. — Perfectly. Then in your view we should not be
competent to frame Eegulations which would practically amount to the
same as a convention between both Governments concerning these
questions.
Sir Eichard Werster. — If you mean by that the clause relating
to procedure, I think certainly not. I cannot think a better case than
the United States demand. They demand that no citizen or subject of
the United States or Great Britain shall kill and so on. Then tliat the
foregoing Eegulations should apply to and extend over all those parts
east of the 180th meridian down to the 35th parallel, and so on; and
any boat or craft other than those mentioned and described which may
be found engaged in sealing, and so on, may be seized and captured
by auy armed vessel and condemned in any Court of competent juris-
diction. I on behalf of Great Britain do not ask that such a degradation
should be inflicted on United States citizens.
The President, — That is another question. I understand this sanc-
tion of penalty seems to be too strong and contrary to the dignity of
your Government, but another mode of sanction may be thought of,
the sanction between Eussia and Great Britain for instance — in the
same sense as it is in the j»oye^ of the United States you might accept
of it being brought into Eegulations.
264 ORAL ARGUMENT OF SIR RICHARD WEBSTER, Q. C. M. P.
Sir lliCHARD Webster. — My answer is tliat it is based on the 14tli
article.
The High contracting Parties engage to consider the result of the proceedings of
the Tribunal of Arbitration as a full, perfect, and final settlement of all the ques-
tions referred to Arbitration.
In my submission no question is referred to tlie Arbitrators as to the
way in which Eegulations should be enforced.
The President. — It is referred to us by the contention of the other
side.
Sir EiCHARD Webster. — By the formal paper handed in, yes. Not
by the contention of the other side as appetning from any of their docu-
ments up to that time, neither in the Case, Counter Case, Argument or
Diplomatic Correspondence. I am aware that General Foster, repre-
senting the United States, has made that demand, but that is the first
time tliat such a demand has appeared.
Mr. Gram. — But, Sir Kichard, is it not your contention that we should
include in your Regulations this sentence that the " License should be
subject to forfeiture for breach of the above Regulations?"
Sir Richard Webster. — I suggested that that would be a reason-
able recommendation; it is what I may call a Regulation necessary for
the protection of seal life.
Lord Hannen. — It is a penalty.
Sir Richard Webster, — You must draw the line somewhere. I
take the view that mere machinery for the enforcement of Regulations
was not intended to be referred.
Lord Hannen. — I think to be consistent, you must strike out that.
Sir Richard Webster. — It occurred to me that it might be said to
be going too far, but it seemed also to be very near the line. I looked
at it in tliis view, though I hope you will not think I want to justify
myself, that I thought the Tribunal might think a Captain or an owner
who has broken the license is not a tit person to be licensed a second
time. That was the idea. It does not seem to be quite enforcing the
same thing as procedure, or penalty, or condemnation of a vessel, but
I really did not think very much of the question of consistency in put-
ting it down, but really what w^as a proper Regulation.
The President. — In Article III of the Treaty for the Modus Vivendi,
it is provided :
Every vessel or person offending against this prohibition in the said waters ol
Behring Sea outside of the ordinary territorial limits of the United States, may be
seized and detained by the naval or other duly commissioned officers of either of
the High Contracting Parties, but they shall be handed over as soon as practicable
to the authorities of the Nation ;
and so on.
That is about the same plan as suggested. This is embodied in the
Treaty regulating the Modus Vivendi. You construe it that this Treaty
is, to a certain extent, the form of the Regulations?
Sir Richard Webster. — Well, Sir, I "cannot go back from what I
have said. I do not consider it so, if you ask me; but I must point
out, if that had been the form of the demand, there would have been
no question about it. Assuming terms to be arranged. Great Britain
and the United States would agree that that is reasonable. My j)oint
is, that to impose upon the nationals of another Country such a Regula-
tion is going far beyond any mere question of agreement, and is laying
down a penalty which is to be the consequence of a breach. I admit
it also was open to the observation that we have gone too far in Article
VIII. I accept the criticism, though I do not know that it injures very
much the argument I have been contending for, that I have gone too
ORAL ARGUMENT OF SIR RICHARD WEBSTER, Q. C. M. P. 265
far in tlie Eegulation that I propose. I do not know if there is any-
thing else?
The President. — No.
I only wish to observe that we are not to be limited by any qnestion
concerning the mode of the execution of the liegnlations we may award ;
because that is not our business, but of the interior constitution of each
country. Whether the country requires the interference of Parliament
or of Congress, or does not require it, that is an alfair which concerns
each party; but we are here before Nations, and not before the Govern-
ments. Tlie Government represents the Nation; and it is the business
of the Nations between themselves to see how they divide their consti-
tutional powers; we have not to enter into that.
Sir EicHARD Webster. — No, and I would rather withdraw the 8th
Eegulation than lay myself open to any charge of inconsistency. It
seems such a very minor ])oint.
Sir John Thompson. — The inconsistency could easily be removed by
inserting in section 2 that such licenses shall only be granted to sailing
vessels and to persons who have observed these Kegulations.
Sir Richard Webster. — Yes; but, in all probability, the language
of Article 8 is open to objection.
Senator Morgan. — I was about to say. Sir Richard, that I understand
the position the United States has taken is that this Tribunal has no
Ijower to ordain Regulations to operate within Behring Sea, and the
position of Great Britain is that we have no power to ordain Regulations
to operate outside Behring Sea?
Sir Richard Webster. — I have not heard that contention of the
United States, Sir. It may come in reply, but I have not heard it
hitherto.
Mr. Carter. — That is not our view of our contention, Sir.
Senator Morgan. — Then, the only question as to that branch of the
subject is, whether this Tribunal has jurisdiction to ordain Regulations
to operate outside of Behring Sea and in Behring Sea, as a concession?
I merely want to know the attitude of the parties.
Sir Richard Webster. — Well, I do not think that my learned friend
Mr. Carter would put it as a matter of concession. (3ur view has been
that the United States did claim to prohibit as of right British subjects
from sealing in Behring Sea, and that the right of the Tribunal to make
Regulations inside Behring Sea, which was the alternative of the five
Questions, was obviously not any matter of concession by us. It is
admitted, on the face of the Treaty, the only question is whether or not
Article VII includes a question of Regulations outside Behring Sea on
that point.
Mr. Carter, — Our view is there is no diifereuce between Behring
Sea and outside Behring Sea on that.
Sir Richard Webster. — So I said.
Mr. Tupper. — With your permission, Mr. President, I would inter-
pose for a moment. The Tribunal will recollect that a statement was
prepared, to aid the Tribunal, of the Facts which the British Govern-
ment desired to be found; a Counter-Statement was submitted by
General Foster, for the United States, as to the facts which the Ujiited
States desired should be found, and with the aid of counsel on both
sides. General Foster and I have been able to agree upon this statement
which of course removes the other two statements from the considera-
tion of the Tribunal.
The Findings of Fact upon which we are agreed are as follows.
1. That the severul searches and seizures, whether of sliips or goods, and tlie sev-
eral arrests of masters and crews, respectively meutioued in the Schedule to the
266 ORAL ARGUMENT OF SIR RICHARD WEBSTER, Q. C. M. P.
British Case, pages l,to 60, inclusive, were made by the authority of the United
States Government. The questions as to the vahie of the said vessels or tlieir con-
tents or either of them, and the (luestions as to whether the vessels mentioned in the
schedule to tlie British Case, or jiny of them, were wholly or in i)art the actual prop-
erty of citizens of the United States, have heen withdrawn from and have not been
considered by the Tribunal, it beiiirj understood that it is open to the United States
to raise these questions or any of them, if they think lit, in any future negotiations
as to the liability of the United States Government to jiay the amounts mentioned
in the schedule to the British Case.
2. That the seizures aforesaid, with the exception of the "Pathfinder" seized at
Neah Bay, were made in Behring Sea at the distances from shore mentioned in the
Schedule annexed hereto marked "C".
3. That the said several searches and seizures of vessels were made by public armed
vessels of theUnited States, the conunanders of which had, at the several tinies,wheu
they were made, from the Executive Uepartment of tlie Government of the United
States, instructions, a copy of one of which is annexed hereto, marlvcd "A" and that
the otliers were, in all substantial respects, the same: that in all the instances in
which proceedings were had in the District Courts of the United States resulting in
condemnation siich proceedings were begun by the tiling of libels, a copy of one of
which is annexed hereto, marked "B", and that the libels in the other proceedings
Avere in all substantial respects the same: that the alleged acts oroftences for which
said several searclies and seizures were made were in each case done or committed
in Behring Sea at the distances from shore aforesaid : and that in each case in which
sentence of condemnation was passed, except in those cases when the vessels were
released after condemnation the seizure was adopted by the Government of the United
States; and in those cases in which the vessels were released the seizure was ma<le
by the authority of the United States. That the said tines and imprisonments were
for alleged breaches of the municipal laws of the United States, which alleged
breaches were Avholly committed in Behring Sea at the distances aforesaid from the
shore.
4. That the several orders mentioned in the Schedule annexed hereto and marked
" C " warning vessels to leave or not to enter Behring Sea were made by public armed
vessels of the United States the connnanders of which had, at the several times when
they were given, like instructions as mentioned in Finding 3, above projiosed, and
that the vessels so warned were engaged in sealing or prosecuting voyages for that
purpose, and that such action was adopted by the Government of the United States.
5. That the District Courts of the tlnited States in which any proceedings were
had or taken for the jmrpose of condemning any vessel seized as mentioned in the
Schedule to the Case of Great Britain, pages 1 to 60, inclusive, had all the jurisdic-
tion and powers of Courts of Admiralty, including the prize jurisdiction, but that in
each case the sentence pronounced by the Court was based upon the grounds set
forth in the libel.
Annex "A".
[See BritisL Counter Case, Appendix, Vol. I, p. 72.]
Treasury Department, Office of the Secretary,
WasMngton, April 21, 1SS6.
Sir: Referring to Department letter of this date, directing you to proceed with
the revenue-steamer " liear," under your command, to the Seal Islands, etc., you are
hereby clothed with full power to enforce the law contained in the provisions of
Section 19.56 of the United States Revised Statutes, and directed to seize all vessels
and arrest and deliver to the proper autlioriiies any or all persons whom you may
detect violating the law referred to, after due notice shall have been given.
You will also seize any liquors or tire-arms attempted to be introduced into the
country without proper permit, under tlie provisions of Section 1955 of the Revised
Statutes, and the Proclamation of the President dated 4th February 1870.
Resjiectfully yours,
C. S. Fairchild, Acting Secretary.
Captain M. A. Healy,
Commanding Revenue- Steamer "Bear" San Francisco, California.
Annex "B".
[See British Case, App., Vol. Ill, U. S. No. 2. 1890, p. 65.]
In the District Court of the United States for the District of Alaska, August Special
Term, 1886.
To the Honourable Lafayette Dawson,
Judge of said District Court:
The libel of information of M. D. Ball, Attorney for the United States for the Dis-
trict of Alaska, who prosecutes on behalf of said United States, and being present
ORAL ARGUMENT OF SIR RICHARD WEBSTER, Q. C. M. P. 267
here in Court in his proper person, in the name and on hehalf of tlie said UnTted
States, against the schooner "Thornton" her tackle, apparel, boats, cargo, and fnrni-
ture, and against all persons intervening- for their interest therein, in a cause of
forfeiture, iillcgcs and informs as follows:
That Charles A. Abbey, an otH<'cr in the Revenue Marine Service of the United
States, and on special duty in the waters of tlie district of Alaska, heretofore, to wit,
on the 1st day of August, 1886, within the limit>5 of Alaska territory, and in the
waters thereof, and within the civil and judicial district of Alaska, to wit, within
the waters of that portion of Beliring Sea belonging to the said district, on waters
navigable from tlie sea by vessels of 1() or more tons burden, seizeil the ship or vessel,
commonly called a schooner, the "Thornton," her tackle, apparel, boats, cargo, and
furniture, being tlie property of some ])erson or persons to the said Attorney unknown,
as forfeited to the United States, for the following causes:
That the said vessel or schooner was found engaged in killing fur-seal within the
limits of Alaska Territory, and in the waters thereof, in violation of section l!i56 of
the Revised Statutes of the United States.
And the said Attorney saith tliat all and singular premises are and were true, and
within the Admiralty and maritime jurisdiction of this court, and that by reason
thereof, and by force of the Statutes of the United states in such cases made and
provided, the afore uieutioiied and described sclinoner or vessel, being a vessel of
over 20 tons burden, her tackle, apparel, boats, cargo and furniture became and were
forfeited to the use of the said United States, and that said schooner is now Avithin
the district aforesaid.
Wherefor the said Attorney prays that the usual process and monition of this
honourable court issue in this behalf, and that all persons interested in the before
mentioned and described schooner or vessel may be cited in general and special to
answer the premises, and all due proceedings being had, that the said schooner or
vessel, lier tackle, apparel, boats, cargo ami furniture may, for the cause aforesaid,
and others appearing, be condemned by the detinite sentence and decree of this
hououral)le Court, as forfeited to the nse of the said United States in such cases
made and provided.
M. B. Ball,
United States District Attornei/ for the District of Alaslca.
ANNIiX "C".
The following Table shows the names of the British sealing- vessels seized or
warned by United States revenue cruizeis 1886-90, and the approximate distance
from land when seized. The distances assigned in the cases of the "Carolena",
"Thornton", and "Onward" are on the authority of U. S. Naval Commander Abbey
(see 50th Cong., 2nd Sess., Senate Ex. Doc. No. 106 pp. 20,40,50). The distances
assigned in the cases of the "Anna Beck", " W. P. Sayward", " Dolphin", and
"Grace" are on the authority of Captain Sliepard. U. S.k.N.(Blue Book, United
States No. 3 (16!)0). pp.80-82. See Appendix, vol. Ill, Neah Bay is in the State of
Washington, and the "Pathfinder" was seized there on chargesinade against her in
Behriug Sea in the previous year. She was released two days later.
Name of vessel.
Date of seizure.
Approximate distance from land
■when .seized.
United States
vessel mak-
ing seizure.
Carnlena
August 1,1886...
— 2! — ;;;
July ?. 1887...
— " 9. — ...
— 12. — ...
— 17. — ...
August 10. — ...
— 25. — ...
— 4. — ...
July 31.1889 ..
— 29. - ...
— 11. — ...
July 11. — ...
Aueiist 6. — ...
July 30.1889...
August 13. — ...
July 15. — ...
Marcii 27. — ...
Corwin.
Thornton
70 —
Onward
115 —
Favourite
Warned by " Corwin " in about same posi-
tion as Onward.
00 milt'S
Anna Beck
Bush.
W.P.Sayward
59 —
Dolphin
40 —
Grace
90 —
Alfred Adams
02 —
Ada
15
Bear.
Triumph
Warned by "Kush" not to enter IJehriiig
Sea.
GO miles
Juanita
Eush.
Pathlinder
50 — .
Triumph
Ordered out of Beliring Sea by " Um^x ".
(?) As to position when warned. 35
miles.
06 —
Rush.
Black Diamond
JLilj-
Ordered out of Behring .Sea Ijv "Kusli."
Ditto
Ariel
Kate
Ditto
Rush.
Minnie
65 miles
Pathfinder
Seized in Neah Bay.
Corwin.
268 ORAL ARGUMENT OF SIR RICHARD WEBSTER, Q. C. M. P.
Senator Morgan. — Is that to go in as a part of the Award?
Mr. TUPPER. — This is to go in connection with the discussion of the
questions in order to assist the Tribunal in the preparation of their
Award, and to intimate to them how far we agree upon tlie facts in
disjiute.
Senator Morgan. — Is that to be in any sense part of the Award?
Mr. TuPPER. — It is ibr tlie Tribunal to say in their framing of the
Award; but these are facts upon which we agree, which the Arbitrators,
we submit, must consider, in making their Award.
Senator Morgan. — An interesting i:»oint suggests itself to my mind.
If this is to be a part of the Award, it would imply that this Tribunal
has a right to leave certain matters open for negociation connected with
this whole subject.
Mr. TuppER. — In reply, I may say frankly, the position is simply
this. We found oursel ves in dispute as to certain subjects — for instance
the ownership of vessels and the amount of damages, — and in order to
relieve the Tribunal of dealing with those questions, we took the respon-
sibility (and we take it now), of withdrawing them from this Tribunal
with the understanding among ourselves that neither party will be
prejudiced when those questions come up, by this action on our part,
instead of asking the Tribunal to hear a long discussion first as to the
law touching these questions, and then asking for an examination into
the facts and the contradictory statements that are before them, or
might be before them, in that connection.
Senator Morgan. — That is all very proper, but it suggests to my
mind that the Tribunal of Arbitration i^ossesses (in the estimation of
Counsel on both sides), a power of submitting some of the questions
brought to our attention — I do not say questions submitted — questions
brought to our attention — to future negociation between these two
Governments.
The President. — I believe, Mr. Senator, that it is in conformity
with Article VIII of the Treaty.
Sir EiCHARD Webster. — That is exactly what I was going to call
the Senator's attention to. It says either party may ask for.
The President. — It says: — "the question of the liability of either
government upon the facts found to be the subject of further nego-
ciation."
Senator Morgan. — That would excuse us from saying that it was
to be the subject of future negociation, because the Treaty has so
ordained it.
The President. — May I beg General Foster to give us his official
confirmation of that?
General Foster. — I express my acquiescence in the statement sub-
mitted by the Agent for Great Britain with this explanation : — that the
United States has never asked for any finding of facts. I have sub-
mitted some amendments to the Finding of Facts submitted by the
Agent for Great Buitain, and we agree upon the paper that has been
just now presented.
The President. — Thank you. I understand that these Facts or
Findings are submitted to us merely for our consideration?
Mr. TuppER. — Certainly.
The President, — They are not considered to be necessarily em-
bodied in our final Award — that is what I take from your words?
Mr. TupPER. — I am not insisting on the particular method in which
that Award is to be framed. I guarded myself by stating that so fur
as we could relieve the Tribunal, we have done so by telling the Tri-
bunal upon what facts we are agreed.
ORAL ARGUMENT OF SIR RICHARD WEBSTER, Q. C. M. P. 269
The President. — But according to Article VIII the Tribunal is
called upon to find, —
Sir Richard Webster. — All facts submitted.
The President, — To find questions of fact involved in certain claims
which would be submitted to us, but only if they are submitted to us.
That is why I enquired whether you, Mr. Tupper, submitted them to
us in such a way that we, in making our Award, are to award upon
them, or whether they are merely for our own private consideration?
Mr. TuppEii. — Among the facts submitted were the two facts, owner-
ship and damages. They are now withdrawn and are not submitted.
Sir Richard Webster. — Mr. Tupper put it perfectly clearly, and
Mr. Carter will agree with me I am sure. A number of facts mentioned
here, (which are not in dispute), are questions of fact which are sub-
mitted by Great Britain. With regard to certain other matters, desir-
ing to reserve fairly the rights of the United States, we have simply
stated, upon the face of this, certain other matters which are not sub-
mitted in order that it may not be said that the Tribunal have decided
them one way or the other. — That was all.
The President. — What is the use of submitting to us questions of
fact upon which you both agree *?
Sir Richard Webster. — Because it is desirable that there should
be a record of the matter.
Senator Morgan. — We have to make an award.
Mr. Carter. — The Tribunal of course will understand that it has
been no part of our purpose to supercede the judgment or action of the
Tribunal on these Findings.
Sir Richard Websteb,. — Of course not.
Mr. Carter. — Great Britain desired that certain Findings of Fact
should be made pursuant to the provisions of that Treaty. For that
puri)ose the Agent for Great Britain submitted a form of those, some
days ago. We objected to the Findings in that form, and proposed
certain Amendments to it. At a subsequent interview between us,
inasmuch as we were satisfied as to the tacts which were proved, and
which could not, in our judgment, be disputed, we agreed as to the
form in which this submission should be made by Great Britain — it is
Great Britain's submission ; not ours. But, at the same time, of course
it is not binding upon the Tribunal except so far as they are obliged,
under the terms of the Treaty, to make a Finding upon such questions
as are submitted.
Lord Hannen. — The position of things seems to me to be very sim-
ple: the Counsel for Great Britain ask for a Finding upon certain
Facts. Suppose you [Mr. Carter], disputed them, you would have to go
into evidence ujion the subject. But instead of disputing them, you
admit them. Thereupon this Tribunal is in possession of the materials
upon which to give a Finding.
Sir Richard Webster. — Yes.
Mr. Justice Harlan. — Or if we chose not to accept that Finding of
fact, we could make a Finding for ourselves.
Lord Hannen. — Undoubtedly.
Mr. Carter. — Undoubtedly; that is our understanding.
Senator Morgan. — But if we accept the Finding in the form in
which it has been presented by agreement of Counsel, the form of the
proposition is, that this Arbitration has a right to decree that a certain
matter may be left open and negociated upon.
Mr. Carter. — I do not so understand.
The President. — According to the provisions of article VXII,
270 ORAL ARGUMENT OF SIR RICHARD WEBSTER, Q. C. M. P.
Senator Morgan. — If you leave it to article VIII, tliat is all very-
well.
Mr. Carter. — The fact is simply stated — that certain questions are
withdrawn from the Tribunal, and not jjassed upon by them. If the
Tribunal chooses to accede to that statement, why, it will stand acceded
to. What the consequence of it may be is another thing. That will
have to take care of itself.
The President. — In the name of Great Britain, you, Mr. Tupper,
call upon us to make a Findina,?
Mr. Tupper. — Yes. The Counsel have done so, and I stated upon
what Facts we agreed.
Senator Morgan. — I suppose if we adopt it in the form presented by
the agreement of Counsel, what we do is to affirm that this Tribunal
has a right to leave a matter ojjen to negociation which has been sub-
mitted to us for decision"? •
Sir Richard Webster.— Nothing is left open not contemplated by
the Treaty.
Senator Morgan. — I merely speak of the form in which it is sub-
mitted. I am not adverse to it because I think there are probabilities
in this case in which we miglit find it necessary to leave some matters
open to negociation.
The President. — I think the matter has been cleared in so far as it
can be cleared at present.
FUR-SEAI^ ARBITRATION.
ORAL ARGUMENT
OS
BY
Me. CHBISTOPHER ROBINSON, Q. C,
ON BEHALF OF GEEAT BEITAIN.
271
FORTY-FIRST DAY, JUNE 20™, 1893.
Mr. Robinson. — Mr. President, my learned friends have asked me to
dispose of two or three matters of detail connected witli this branch of
the case; and I think it would be better for me to dispose of them
before I proceed to make such general observations as may seem worth
while to me in regard to the question of regulations generally. Those
points are: The question of the food of the seals; the question of the
waste which is consequent upon pelagic sealing by reason of the num-
bers lost; and the question of raids.
It may be remembered that the question was asked as regards the
food of these seals, what their general food was, where they come to
take it, and whether they are in the habit of living upon salmon. I
think those questions were asked in connection with the subject which,
as the learned President remarked, might become more material when
the question of regulations came up for consideration, namely, the
effect of the seals on the industry of the food fish.
The question is of course a material one. We have the evidence
upon it analyzed and connected so that we can show exactly what the
nature of the proof is which the case affords. I may say generally that
there seems to be little question of this: — That the seals feed to a large
extent upon salmon and upon herring; that they follow the schools of
herring into the interior waters and sounds, and that their movements
depend to a large extent upon the movements of those fish. I think
that is the effect and character of the evidence. I do not think the
seals confine themselves to any special kind of fish; but, as I have said,
salmon and herring are the chief kinds upon which they live. Then
they live very largely upon the squid, and it so happens for some reason
that many of the witnesses speak to that upon our coast — that is to
say, upon the eastern coast — they live very largely upon salmon and
herring, while upon the western coast they live very largely upon
squid. Whether it is that salmon are not to be found there, or what the
reason may be, I do not know; but is so stated.
Senator MoRaAN. — What is a squid?
Mr. EoBiNSON. — I would hardly like to say.
Lord Hannen. — It is a kind of cuttle fish, a small cuttle fish.
Mr. Robinson. — Then, may I ask whether the beaks that are found
are the beaks of squid?
Lord Hannen. — Yes; that is what you may call the skeleton of the
squid.
Senator Morgan. — Do you mean that the seals follow the herring
and the salmon into what we would call the interior waters along the
coast?
Mr. Robinson. — Into the sounds and up the inlets, etc. — Barclay
Sound for instance. Barclay Sound is on Vancouver Island. I am not
quite certain of its exact location.
Senator Morgan. — On the inside or outside?
Mr. Robinson.— Barclay Sound is on the inside. Think it is on the
eastern coast of Vancouver.
273
B S, PT XIV 18
274 ORAL ARGUMENT OP CHRISTOPHER ROBINSON, Q. C.
Senator Morgan. — In the Georgian Cliannel.
Mr. Robinson. — I am not quite certain of tbe position of Barclay
Sound. I know it is a sound on the coast of Vancouver Island.
Senator Morgan. — To go into the Straits of Georgia the seals would
have to go throngh some of the openings in the Pacific Ocean, the
Straits of Fuca, or some other opening.
Mr. KoBiNSON. — Yes; they would have to go through the straits of
Juan de Fuca. I have the location now. I was wrong. It is in the
southwest corner of Vancouver Island, opening on the ocean.
The President. — Do the seals ever go in fresh water"?
Mr. EoBiNSON. — I have never heard of it. I have seen them in
brackish water. I cannot say more than that. It may be known to
some of the members of the Tribunal that tlie water in the St. Law-
rence is brackish until you get a considerable distance down.
Senator Morgan. — Do you refer to the fur-seal?
Mr. EoBiNSON. — Oh no; the hair seals. There are no fur-seals on
the Atlantic Coast that I ever heard of.
The President. — Do they require salt water?
Mr. Robinson. — i!^o; they do not require saltwater. I think that
in the Zoological gardens tliey are not always supplied with it; and I
have seen them high enough up to say that they go into water that is
not quite salt. That is the hair seals. I do not know anything about
the fur-seals.
We have all this evidence collected; and it is given by 27 white
hunters and a large number of Indian hunters — I should think some
30 or 40. Several Indians refer to the fur-seals following the herring
into the bays. All this evidence is to be found in Appendix II to the
British Counter-Case; and I shall read to the Tribunal some few
extracts to show the character of it. I have it all here and I could give
it to the Tribunal either verbally, the whole of it, or put it in writing,
as would be most convenient, so that all of it would be before them.
I do not think it would be wise, or that there would be any sufficient
object in it for me to detain you while I read all the aflidavits. I merely
mean to read one or two or half a dozen as specimens of the whole;
and then I can either give you the names of the others or give you the
printed list, whichever may be found most convenient.
For example, at page 43 of that Counter Case there is a man named
Petit, one of the white hunters. He says:
I have seen seals opened and find in them salmon, cod, and sometimes squid.
At the same page, another man, Abner Sinclair, speaks to the same
effect :
Seals eat cod, salmon and squid; more squid than either of the others from what
I have seen.
A man named Luke McGrath, of the city of Victoria, at page 46, now
a hunter in the "Dora Diewind", a sealing schooner, says:
I h.ave found that seals eat salmon principally along the coast, but squid princi-
pally in Behring Sea ; cod also.
Then Ralph Starrat, at page 48 of the British Counter Case, says:
The jirincipal food of the seal along the coast is salmon; but they eat any kind of
fish.
The President. — Is that in the Counter Case or the Appendix?
Mr. Robinson. — It is in the Appendix to the Counter Case, Vol-
ume II. You will find that our Appendix to the Counter Case is
arranged in this way, may say, Mr. President: From page 43 to 139
ORAL ARGUMENT OF CHRISTOPHER ROBINSON, Q. C. 275
is "Testimony relatiug to pelagic sealing"; but the affidavits relate
to a great many points in regard to pelagic sealing: That is to say,
each man will speak on several points in connection with it.
Then at the beginning of that Appendix to the Counter Case we
have got a collection of the evidence on different points of that kind;
but I do not think we have it collected there with regard to the food.
I have it in a separate analysis of my own here in print with regard to
the food; and that I can give to the Tribunal if it would be convenient
for them. But they are collected very much from pages 43 onward. In
point of fact, all these affidavits of white hunters are to be found from
pages 43 to 08. Then come the Indian hunters, which extend from 140
to 159 or 100.
James McRae, at page 48 says :
Codfish, salmon and squid are the principal food of the seals.
E. O. Lavender, page 54, says:
Salmon, squid and a small black fish.
Two of them speak of a fish " like a mackerel." What that maybe,
I do not know.
Otto Buchholz, at page 58 says:
The food of seals on the coast is mostly salmon. On the Asiatic side mostly squid.
That is one of the persons I refer to for that statement.
Herman K. Smith, at page 61, says the same thing:
Over there (that is to say, Copper Islands he is speaking of) the seals get only squid
and devil fish; largely the latter.
I suppose there are no salmon on that coast.
Andrew Mathison, at page 09 says:
Seals on the southern coast feed principally on salmon ; up north on salmon, and
squid.
Another man says p. 80 :
Shrimps and insects.
John Christian, at page 8G says:
On the coast I have noticed more salmon food in the stomachs of seals than any-
thing else; bat in Behring Sea it is mostly squid.
Walter Heay, at page 87 says the same thing:
On the coast the seals eat principally salmon ; in Behring Sea mostly squid.
Then there are a large number of Indian hunters, who I suppose
would be confined to the eastern coast.
An Indian, Schoultwick, at page 142 of that same Appendix. These
Indians speak more particularly of herring, and I account for that in
this way: The Indians as a rule know more of the coast sealing. That
is to say, they are more accustomed to hunt within shorter distances of
the coast, and their knowledge of seals is more confined to the migra-
tion of the seals along the coast and the interior waters. Of course
many of them are hunters on the schooners; but they have a more inti-
mate knowledge probably of the coast sealing. This man was living
on the coast of Vancouver Islaiid in Barclay Sound, and he says:
Tlie seals are always most numerous when the herring are most plentiful, which
they follow as far as the head of Barclay Sound, and we kill them there every year
if the bait go that far.
That is to say, if the herrings go in as far, as I understand it, as up
to the head of the Sound,
276 ORAL ARGUMENT OF CHRISTOPHER ROBINSON, Q. C.
Senator Morgan, — Within tlie three mile limit?
Mr. KoBiNSON. — I do not know; but if they go to the head of the
sound I suppose it wouhl be within the three mile limit.
At page 146, a man named Charles Hayuks of Barclay Sound says:
When the herring .are plentiful and come in close there are plenty of seals, hut
when the herring are scarce, or do not come in close, we do not get many.
At page 147, a man named Oquaghu says :
Seals come into Barclay Souud every year in the month of January, and are more
plentiful some years than others, and years the seals are plentiful have noticed that
the herring were very plentiful near shore. Seals are as plentiful as ever hnt they
do not come in so close to shore now.
A great many of the Indians say that the guns have frightened them
away from the shore.
Then another man, at page 149, says:
They are most plentiful along the coast and in the Sound when the herring come
in to spawn, and the more the fish the more the seal. All kinds of lish that are got
on the coast are found in their stomachs.
Senator Morgan. — Does this testimony show that the herring do
come in to spawn ou that coast?
Mr. Robinson. — jSTo ; I do not remember that it does, Mr. Senator. I
do not know that it does. That is a fact, of course, that could be readily
ascertained. One of these witnesses speaks of the seals following the
herring in when they go to spawn. Others speak of their following
them in January; but I do not know anj'thing about that.
Senator Morgan. — On the Atlantic coast, you say it is quite different?
Mr. EoBiNSON. — I think it is. The Atlantic Coast and the Pacific
coast have different seasons.
At page 153 another Indian speaks to the same effect:
Years herring are plentiful the seals are very plentiful.
Another Indian, at page 159, says :
Seals come into the Barclay Souud every year, and I have seen them right in here
where the hoat is anchored and saw them in here last spring. Some years ago they
Avere very plentiful; years the herring are very plentiful in the sound and along the
coast seals are very plentiful, ami come in close to land.
The President. — From all these afSdavits it would appear that the
quantity of seals does not merely depend upon the quantity of destruc-
tion, but also upon the quantity of food?
Mr. Robinson. — It nuist to some extent. All wild animals will be
found very much to depend upon the quantity of the food that they
follow. If we are to talk of natural history, there are mysterious things
which cannot be accounted for by us. But I can say at least that the
herring are unusually plentiful every few years and scarce in other
years. One year they will be unusually plentiful. 'No one knows where
they come from ; and the next year there may be very few, and you will
not find another influx, so to speak, for several years.
The President. — Would that be an annual migration ?
Mr. Robinson. — No; they are not migratory tisli at all, according to
the knowledge of my friends. I have seen years, for example, when
black squirrels have been swarming. They would swarm one year but
the next year they would be very scarce.
The President. — We all know that about cockchafers.
Mr. Robinson. — It may be the same with regard to cockchafers. I
am not familiar with that; but there is no doubt that in some years
the herring are more plentiful than in others; and when they are more
numerous, the seals collect there in greater numbers than at other
times. That is all I can say about it.
ORAL ARGUMENT OP CHRISTOPHER ROBINSON, Q. C. 277
I read from page 157. At page 102 there is the statement of an
Indian, conlirmed by eleven others, and he speaks in the same way:
Some years there are more than others, and years that the herring are plentiful
there are more seals.
Several of these -fitnesses refer very particularly to the fnr-seals fol-
lowing the herrings into the bays. One of them, at page 140, refers to
that particularly. He says:
About Christmas time they come into Barclay Sound on this coast among the
islands there, and are seen in great numbers following the run of herring. I have
noticed that when the herring is plentiful on the Halibut Banks tlie seals are more
numerous than when the feed is scarce.
Then a man at page 158 speaks of it in the same way:
Seals are first seen along this coast about Christmas time, and are seen till about
the time the berries begin to get ripe —
I do not know what connection there is between the two.
but we only hunt them for about three months from the shore, when we go away in
the schooners. I have always seen the big ones come first, and towards the middle
of the season the smaller ones come. They are always most ]dentiful when the
herring are thickest, and I have seen them following the herring right in here,
where we now lire — in Ucluelet Harbour — in the night time, and have gone ont and
killed them.
I think there is only one other worth referring to at p. 159, who says:
Some years they were very plentiful; years the herrings are very plentiful in the
Sound and along the coast seals are very jileutifnl, and come in close to land.
That is all the evidence out of 70 or 80 aflidavits that it is necessary
now to call the attention of the Tribunal to ; but I can give you a written
list of them all if the Tribunal should desire to have it; I believe they
prove what there can be no ground to disjiute, that the seals live
largely upon herring and largely upon salmon, that when the herring
and salmon are most x)lentiful the seals are most plentiful, and that
they follow the schools n\) into the inner waters and into the sounds,
wherever the herring go. That I think would be the result of all the
testimony.
The next topic that I desire to touch upon is the question of waste at
sea by pelagic sealing. That has an indirect bearing, no doubt, upon
this question of regulations. It may be said that if there is undue
waste or undue loss by the system of pelagic sealing, the question of
regulations would be afiected by that, and would be framed as far as
possible in view of it. The United States have asserted very strongly
that something like 66 per cent, I think, of the seals that are shot at
sea are lost. That we venture to say is utterly and wholly wrong, some
twenty times an exaggeration, and I propose to speak of the evidence
which we say shows that. Of course there is no question in the world
that the pursuit of every wild animal — I do not care what it is or where
it is — is accompanied by a certain amount of loss. It is inherent in the
very nature of every kind of hunting, every kind of pursuit of wild
animals. I do not know any that is free from it. My learned friend,
Mr. Coudert, at part 4, page 699, exerted his powers of ridicule and
sarcasm upon the sentence in our Commissioners Keport in which they
say this :
The accusation of bntchery laid against those who take the seals on shore cannot
be brought, this pelagic method of killing the seal, which is really huntinf/as distin
guished from slaughter, in which the animal has what may be described as & fair
^porting chance for its life.
278 ORAL ARGUMENT OF CHRISTOPHER ROBINSON, Q. C.
Mr. Coudert, after considering tliat question during luncli time, said
on the reconvening of tbe Tribunal :
Wlien this learned Tribunal adjourned for the recess, I had just read extracts from
the British Connnissioners' Report chiirging butchery against those who killed the
seals on the Islands, and expressing the opinion that the slaughter which I have
described at sea was sportsmanlike in its character, in that it gave the animal a fair
sporting chance for its life. I could not do justice to that by any comment, and I
leave it for the Tribunal without any criticism.
I should infer from tins that my learned friend Mr. Coudert, however
wide his sympathies may be — and I have no doubt they are very wide —
has no sort of sympathy with what is called the instinct of sport. His
idea would seem to be that humanity is the one thing to be considered.
He would approve, for instance, of a man who would sneak up to a
pheasant, get within 20 yards of it, and shoot it out of a tree, or would
shoot it on the ground. He would think that mitch more humane, and
nuich more to be encouraged, than the method of the ordinary sports-
man, who shoots on the wing and does give the bird a chance for its
life. In fact, he would agree with that person of whom I have read a
story, that when he was about to shoot a partridge running in a field,
his friend who was with him put his gun up, and said: "Surely you
are not going to shoot a bird in that way?" His answer was: " No;
I will wait until it stops"; and that was his idea of fair sport.
We maintain that iielagic sealing gives the seal a fair chance for its
life and is in that respect preferable. There is one thing very certain:
if you were to i)ropose to nine men out often to go and join you in the
system by which the seals are killed on the Pribilof Islands, namely,
by knocking them on the head with a club when they are looking in
your face they would probably turn from you with no small degree of
contempt; while if you were to propose to the same men to go out in
the open sea in boats and kill the seals by shooting them, they would
think that a sort of thing to be encouraged, and would have no hesitation
in joining you. Mr. Coudert can have iu)ne of the sportsman's instinct,
or he would not have thought the remark of the British Commissioners
so very ridiculous. It so happens that at the end of one of these books,
vol. IV, App. British Case, there is an article from an American news-
paper, quoting from the London Times, in which they take the same
ground, that it is butchery, and unsportsmanlike, and that it ought to be
condemned on that ground. Every one on the other side of the water
knows of the complaints that are made in regard to the method of pur-
suing deer. They are driven into a, where the pursuers paddle out to
them in a boat and put a bullet through their heads. I think very
much may be said against this system on that hut it ground, that is a
matter of taste. I infer only from my learned friend, Mr. Coudert's
conception of it, that he has not much sympathy or feeling for the
instinct of sport.
Pelagic sealing is spoken of in several places as having been destruc-
tive elsewhere, and I do not stop now to read extracts, because I think
the time has come when we may take it for granted that the Tribunal
have in mind a great deal that has been read and repeated to them in
these affidavits. In the Case of our friends, I find it often stated that
pelagic sealing is in jjart resi^onsible for the extermination of the seals
in the southern hemisphere and elsewhere. As a matter of fact, pelagic
sealing has never exterminated seals anywhere.
Lord Hannen. — Has not that been very fully gone into?
Mr. EoBiNSON. — It has perhaps been very fully gone into, and I am
not going into it any more. All that I was going to do was to point out
the sentence of the British Commissioners, paragraph 65, I think it is,
ORAL ARGUMENT OF CHRISTOPHER ROBINSON, Q. C. 279
where tlie fact is stated. I say this pelagic sealing has iievei^ been
practised elsewhere aud never was known until it was practised in these
waters,
JSow the statement in the United States Case at pages 195 and 196 is
that 60 per cent are lost out of every 100 killed, and the probability is
the percentage is even moie. In the British Counnissioners' Eeport,
paragraph 6li7, you will find a table given, and I think the better way
of treating this is not to trouble you with special affidavits, but to give
the result of the analysis which we have here of a large number of affi-
davits, putting together some 50 or 60 affidavits of different people who
speak to the number they have killed. We have aggregated that num-
ber, and we have 9,337 skins taken and a loss of 4 per cent. That is in
the table appended to paragraph 627 of the British Commissioners'
Eeport.
If you look at the British Counter Case Appendix, vol. 2, page 6, Mr.
President, you will see a farther table. Of course, between the prepa-
ration of the Case and Counter Case we were collecting evidence, and
there is a large list of affidavits by different people tabulated in this
way, giving the names of the deponents, names of the vessels they
belonged to, the number of skins obtained, and the number of seals lost,
the percentage, and the different years, with remarks.
Now in those affidavits we have 39,879 skins taken, and we add to
that the 9,000 odd in the previous table, making together 49,216, or say
50,000; with a up of 1,602, making a loss of 3-2 per cent. From page
7 to page 10, we have some 80 witnesses, or an abstract rather of their
testimony, which forms the evidence which has been tabulated and
analysed, as I have mentioned. It would seem to be impossible to
present that kind of evidence more satisfactorily. There is no doubt
evidence on the other side both ways; that is to say, witnesses called
on behalf of the United States who say that they have lost a good many,
and witnesses called on behalf of the United States who say that they
have lost but very few, and you must collect from the evidence ^ro and
con in that matter what you may take to be the reasonable inference from
it, taken as a whole. That is treated of again in the British Counter Case,
pages 191 to 193, in the British Commissioners' Report at paragraphs
616 to 626, and in the Counter Case at pages 158 to 159. I do not think,
though it is tempting to read some of these affidavits, that it would be
worth while to detain the Tribunal while I call attention to any of the
details. The net result is that we have tabulated them all, and have
the statements of different people of the number they state, by actual
count, amounting to 10,000. We have the statement of the number
that those people swear to as having lost, and it comes to 3-2 per cent.
That is the total, if you recollect on the first 9,000 odd. Then we get
39,000 more, making ciose on 50,000 which was a total of 3-2 per cent.
Now I desire to call attention to the affidavit of Mr. Behlow in the
Appendix to the United States Case, on another question, volume 2,
page 402, which we think must certainly be a mistake. I call attention
to it more particularly because it seems worth while to call attention to
anything that this gentleman says, with regard to which we conceive
him to be inaccurate, for he is a gentleman who has made no less than
11 or 12 affidavits on behalf of the United States. His statement is
that he examined 1,342 salted fur-seal skins, ex schooner "Emma and
Louisa "from the North Pacific Ocean; and he undertakes to tell you
what kind each skin belonged to, tliat is to say, whether pup, male, or
female, and to give an analysis of the whole.
280 ORAL ARGUMENT OF CHRISTOPHER ROBINSON, Q. C.
Now in answer to that, if you will turn to volume 2 of the ai^pendix
to our Counter Case, page 173, you will iind first the affidavit of Mr.
Belodo, who says he is the managing owner of that vessel; that she did
bring the 1,342 skins, that he was there when Mr. Behlow came to
examine them; that he only lifted a few up from the pile, not exceed-
ing five or six, and looked at them, and then went upstairs; and the
time that they were down there would not be more than five minutes.
On the same page, 173, that is followed by an affidavit by Mr. Barber,
who was a clerk in the employ of Mr. Ladd, the owner of the sealing
vessel "Emma and Louisa"; that she returned on a certain day.
Having on board 1,342 skins, and these skins were delivered at the place of busi-
ness of the afore mentioned C. D. Ladd on the 12th day of the same month.
In the forenoon of the day following, that is, on the 13tli July, Charles I. Behlow
of this city, came into the atoi'e of the aforesaid C. D. Ladd and asked to see the skins
which had Ijeen brought from the vessel " Emma and Louisa", and I took him to the
basement where they were all lying in one pile in the elevator. I made no objection
to his seeing the skins, as I had been informed that all seal-skins of the pelagic catch
had to undergo inspection before any disposition could be made of them, and at the
same time had been told that the tirm of H. Liebs and Co. had been appointed by the
Government the inspectors for that purpose, and I knew the said Charles I. Behlow
as a member of the firm of H. Liebs and Co. for many years.
On being shown the skins which, as I before stated, were all in one pile, the
said Charles I. Behlow remarked to me that he had to say he had seen them, for it
did not pay to inspect them as he was only paid 5 dollars a day for doing it; and
on saying this picked up and looked at a few skins, not exceeding 5 in all, but gave
even these no such scrutiny as would be required to determine the sex. The whole
time the said Charles I. Behlow was so employed did not exceed five minutes.
Then we have also the affidavit of Mr. Wester at pages 175 and 176,
and Mr. Wester is the Captain of the vessel. He describes Mr. Beh-
low's visit, and then he says that the skins were immediately trucked
up; the time occupied was not more than 3 1/2 hours in landing, and it
was impossible to tell what the sex was — it was only a matter of guess
work. Then in case it should be said that 3 1/2 hours was sufficient,
we refer the Tribunal to the evidence of Mr. Phelan, at page 518 of the
United States Case Appendix, volume 2, who says he spent 4 days
going through a lot of skins, working about 7 hours a day, so that if
even 3 1/2 hours is supposed to be the time, it is impossible that Mr.
Behlow could have examined these skins with any such attention as
would enable him to give the information he professes to give. This is
material when we find the same deponent making 11 or 12 affidavits.
Then the only other point that I desire now to touch upon is the
question of raids. That is a material question from two views — mate-
rial as regards the protection given to tlie Islands, and material as test-
ing the opinion of those who have si)oken on the part of the United
States, and who have said that in their judgment raids are too unim-
portant to play any part in the question they are considering.
Mr. Stanley Brown, in volume 2 of the Api^endix to the United States
Case, at page 18, says with regard to that :
The statistics which I have examined, as well as all the inquiries made, show that
in the raids upon the rookeries themselves by marauders the loss of seal life has been
too unimportant to play any part in the destruction of the breeding grounds. The
inhospitable shores, the exposure of the islands to surf, the unfavourable climatic
conditions, as well as the presence of the natives and white men, will always pre-
vent raids upon the islands from ever being frequent or effective.
Now, we have not treated that question in our Eeport in that way at
all. The British Commissioners Eeport is in an entirely different sense,
and gives evidence which, in our view, it is impossible to disregard or
to displace by mere assertion of opinion or as even the result of enquiry.
ORAL ARGUMENT OF CHRISTOPHER R0T5INS0N, Q. C. 281
The cliapter on ''Eaids" is to be found in tlie British Commissioners'
Eeport, parag-raphs 727 to 770. I do not propose to read from that at
all at any length; but you will find at paragraph 762 they say:
The evils of raitlinaj are very great. It is by far the most destrnctivo form of seal-
ing, combiuing all the disadvantages and none of the advantages of the other forms.
The killing is chiefly of breeding females, as the raiders cannot penetrate far enough
inland to obtain the young bachelors or immature females.
And so on.
We ourselves noticed, tbe great ease with which, under present arrangements, raids
might be successfully carried out.
— and they give particulars of that.
For instance, we steamed into the anchorage of the settlement at St. Paul, close
past the Zapadnie and Tolstoi rookeries, one bright moonlight night (14th Septem-
ber), and moved early the next morning by daylight round the Garbotch and Reef
rookeries to the otherlanding, without our presence becoming known in any way at
the settlement.
In short they say under present regulations and arrangements, there is no difficulty
or danger whatever to vessels raiding along shore any night, or in any of the fre-
quent fogs at several of the best rookeries, except when a revenue-crnizer chances
to be close by, an occasional occurrence well known to every marauding schooner.
If you look at the British Counter Case, the Appendix Volume I,
pages 153 to 154, you will find Mr. Macoun's report on that subject,
which is very definite and specific. He says:
During the months of July and August, 1892, no guard was stationed upon any
rookery on either island with the exception of North-east Point on St. Paul Island,
and Zapadnie on St. George. Polavina and Zapadnie Rookeries on the former island,
and Great East and Starry Arteel Rookeries on the latter, were left without a guard
of any kind, and three of these four rookeries are known to have been raided in recent
years.
On the 16th of July I walked on St. George Island from the village to Zapadnie
Rookery with the two natives who were going to relieve the watchmen there. One
was a young man about 20 years of age, the other a boy of 12 or 13. When we
reached the guard-house, I found that the guards to be relieved were an elderly man
with but one arm, and a boy of about the same age as the one referred to above. I
was afterwards told by Dr. Noyes, the manager on St. George Island for the Com-
pany, that when the killing season was at its height this one armed man was the
only guard kept at Zapadnie. He was unable to assist in any way at the killings,
so was employed as a watchman.
Two or three meii were kept at North-East Point, St. Paul Island, and this place
is connected with the village by a telephone line. Early in August, 1892, however,
the receiver or transmitter at one end of the line got out of order, and it was ren-
dered useless as a means of communication between these places.
At the time of my departure from the island on the 12th of September it was still
in this condition, and there was apparently no prospect of its being rejiaired before
next spring. More than two hours would he required by the watchmen to reach the
village were a raid to be made at North-east Point, and the same time to return
with assistance. This, with the time consumed in rousing the people at the village,
would give any raiders ample opportunity to do their work, as I have been assured
by several men who have actually r<aided the islands that four hours is the time
usually required to make a successful raid, so that North-east Point was in 1892
practically without protection.
Polavina rookery is 5 miles from either the village or North-east Point, and any
night the wind served, or even on foggy days, raids might be made there and nothing
be known of them at the village. Although Zapadnie rookery can be seen from the
village, and on this account is supposed to be safe, it was at this very place that the
skins taken by the crew of the " Borealis", late in 1891, were procured. I was told
by one of the men engaged in the raid that, at the time it was made, a revenue-
cutter was lying at anchor near the village, and less than 2 miles from the rookery,
that the night was clear, — so clear that they could see from the schooner not only
the lights of the cutter, but the vessel itself. They were desperate, however, and
sailed in close to the rookery, landed, and secured 400 skins without being seen or
heard.
"282 ORAL ARGUMENT OF CHRISTOPHER ROBINSON, Q. C.
While on St. Paul Island, in 1892, three different rookeries were named to me as
the one on which this particular raid was marie. Nothing was known of it on the
islands until the arrival of the revenue cutters the next sirring, and the ohicers on
these vessels had heard of it through the raiders themselves.
While in Victoria, British Columbia, in May, two of the schooner "Challenge"
gave me particulars of the raid made on Great-East Rookery, St. George Island,
late in 18'J1 ; and when on St. George Island in .July, I asked Dr. Noyes, the Manager
of the North American Commercial Company on that Island, for an account of the
raid. He told me that the morning after the raid, a native who had been collecting
wood came in with the report that there were dead seals on Great East Rookery,
but that no vessel was in sight. The number of seals killed was not ascertained, aa
they did not wish to disturb those still on the ground. A man was sent across the
island, and came back with word that a schoouer was anchored iu Garden Cove.
Guards were put on all the Rookeries, but no further attempt at raiding was made,
and nothiug more was seen of the vessel.
Then:
In this connexion, Mr. Wardman, United States Treasury Agent on the Pribilof
Islands for several years, may be quoted: " I asked a man one day if he would shoot
if we took after a pirate, and he said he would not. It was only with great persua-
sion I could get him to pull me off in a boat. It is no use putting guns into their
hands. I asked him why he would not shoot, and he said he did not want to kill a
man. They are very cowardly."
Then they go ou to point out:
Even were native guards placed on every rookery on both islands, they would thus
afford no real protection against raids. They might be bribed by the raiders, or
might neglect their duties and not patrol the rookeries ou dark or foggy nights, and
even were good watch kept and the presence of raiders detected they would be use-
less, and at the most would bat hurry to the village for help. It is assumed that if
a revenue-cutter were kejit at each island, no further protection would be necessary.
and so on.
All the revenue-cutters habitually come to anchor at night-fall when near the
islands, if possible at the village, so that practically the whole island excepting that
part of it near the village is open to the raiders. Vessels are known to have anchored
to the northward of St. Paul Island for v^eeks, running in to the island at night to
kill seals on the rookeries. A proper guard stationed at each rookery might prevent
such raids, but a vessel anchored at the village can never do so.
Then in the British Counter Case, Ap])endix, vol. 2, pages 41 and 43
the Tribunal will find an analysis of all the affidavits relating to raids
made on the Pribilof Islands.
They are 8 in number, and particulars are given as to the raids they
themselves are aware of.
On one occasion.
(A Mr. Folger says) :
We once ran in too near the village and saw a cutter there and went away again,
but we found the coast clear the next night and got al)Out 500 skins. We could see
the light at the village.
We knew very well the natives did not keep a good watch. We got about 2,000
skins that year off the Islands.
And John Kraft speaks of the same thing. I am not certain if Mr.
Folger is a citizen of the United States. I thiidc so, however, for the
simple reason that it is stated in several places there is no instance of
a Canadian vessel having raided the Islands and, therefore, I assume
these persons like Mr. Folger are American citizens. I find, that he is
so described at p. 88.
Then we have very direct evidence of the manner in which these raids
were carried out, in the British Counter Case page 297; ami in the
Appendix to that Counter Case volume I page 154 and page 293 specific
evidence is given as regards a great many raids which have occurred
ORAL ARGUMENT OF CHRISTOPHER ROBINSON, Q. C. 283
and wLicli have not been mentioned by the Treasury Agents. I will
conchide this, I think, by referring to the evidence of one Lenard, a
Witness called for the United States, or one of the deponents whose
afBdavit they give in the A]>pendix to the United States Case, volnnie
2, page 217; and I refer to him to show the conseqnence of such raids
more than any thing else. I am not quite certain for what reason they
put ill his evidence.
He says:
I reside at Belkofsky, Alaska Territory. I have been a sea-otter hunter for forty
years, and have occasionally raided the Russian seal islands. Vv'hen on a raid we
■would watch for a favorable opportunity to make a landinjj; and thi'n kill male and
female fur-seals indiscriminately. Probably for every 500 marketable skins secured
double that number of pups were destroyed.
That is practically what from the habits of the seaLs and what we have
read you would imagine. These men proceed with no care, and they
probably create a stampede among the older animals, and the pups are
killed in that way and in others.
Senator Morgan. — That leads me to enquire, Mr. Eobinson, for the
purpose of obtaining information, if it is correct that the rookeries
occupy the sea front, and in rear of those come the older seals and hol-
luschickie. Is that correct!
Mr. Robinson. — No, I think not. I think the holluschickie haul out
on a different place.
Senator Morgan. — Some of the witnesses speak of open ways being
left. That is what I meant.
Mr. Robinson. — That is seals on the rookeries. You will see in the
evidence that the hollnschickie haul out at a diflerent place.
Senator Morgan. — Entirely independent?
Mr. Robinson — Yes, because the old seals will not let them come
near the breeding section, so to speak.
Mr. Carter. — That error ought not to be allowed to go uncorrected,
because it is in evidence that the holluschickie haul out in the rear of
the rookeries as well.
Sir Richard Webster. — But not in the same place.
Mr. Robinson. — Perhaps Mr. Carter is right in this way: what I
mean to say is this, that they land at a different place. I do not say
they do not spread round and get to the rear.
Senator Morgan. — There are witnesses who speak of open ways for
the seals to pass through.
Mr. Robinson. — I do not think that is connected with the hollus-
chickie, but I will not put my recollection, where I do not recollect
clearly, against anything that Mr. Carter thinks is correct. Mr. Fol-
ger, in the Appendix to the British Counter Case, Volume 2, page 89,
refers to one of these occasions when he is speaking of a raid.
He says :
I was at Robben Reef at the time the Alaska Commercial Company sent a vessel
there — the "Leon", Captain Blair — to destroy the seals. They had tried their best
to protect the island, but we were too much for them. We had the guard in our
pay, and when the "Leon", which had been sent there to guard the place would go
away, lights would be put out aiid we would come over from Cape Patience, where
we had men on the look-out constantly, or if we got impatient the fastest sealer in
the fleet would go there and be chased by the "Leon" (a sailing vessel), and the
others would make the raid; we worked together, and the schooners would divide up.
It is hardly necessary to suggest in conclusion that it is only natural
to suppose these raids must have been frequent. The price then paid
for seal skins was an object of temptation. The natives are not to be
depended upon, and the United States cared little about it j it was a
284 ORAL ARGUxMENT OP CHRISTOPHER ROBINSON, Q. C.
matter for the lessees; and unless a very strict guard was kept, tliis
locality, witli constant thick fogs and a class of men not by any means
timid in tlieir operations of that kind, would be almost certain to be
subject to raids. Given natives to watch, and given white men to want
what the natives are watching, the white man will get what he wants.
Those three points I have now dealt with.
The President.— Any others we shall be happy to hear you urge in
the morning,
[Adjourned till Wednesday the 21st June at 11.30 o'clock A. M.]
FORTY-SECOND DAY, JUNE 21^1", 1893.
Sir EiCHARD Webster. — Mr. President, before my learned friend
Mr. Eobiusou begins, you will remember that wlien the Attorney Gen-
eral communicated to you the fact of a communication having been
made from the Foreign Ofiflce as to the Eussiau seizures, objection was
taken by my learned friend, Mr. Phelps, that the communication was
not public or official; and you were good enough to call attention, when
I was addressing you, to the fact that however much you might, of
course, believe what we had stated in the matter it was not a public
document and, therefore, reference could not be made to it properly. I
told you I had no doubt the Papers would be presented to Parliament
in a few days. They were presented yesterday, and I have handed my
learned friend copies. Copies will be supplied to the Tribunal, though
we have not sufficient at preseut I believe, and I may state on page
5,
Mr. Carter. — One moment; do you read the contents as evidence?
Because if so, we object to the reception of this matter. The ground
of our objection. Sir, is that it is new evidence designed to prove some
new fact or other; and, therefore, does not come within provisions of
the Treaty, that the only way in which the Treaty contemplates evi-
dence is to be received by this Tribunal is that it should be incorporated
in the Case or Counter Case, and that this, therefore, is not admissible.
The President.— I would say that we do not admit fresh evidence,
and it is not as evidence that we would like to take it. I do not believe
it is within our proper power, however, to prevent anybody from read-
ing anything that may be read in the newspapers of what happened
that day or the day before. We simply take it as a newspaper commu-
nication; I do not say more than that.
Mr. Carter. — With great deference, Sir,
The President. — Do you object to that?
Mr. Carter. — I should think it was in the power of this Tribunal
to prevent the reading of any newspaper in evidence, or to prevent the
reading of anything which is intended to bring before the Tribunal
any additional fact (that is, evidence) in reference to what may have
been done between Eussia and Great Britain in the way of adjustment
or settlement of a controversy. Our learned friends on the other side
have a way, which we are deprived of, by which they can bring those
matters before the Tribunal.
If the objection is that they are of an unofficial character, they have
an easy method by simply laying them in the first instance before the
British House of Parliament now in Session, and having them printed
to give them an apparently official character. But the objection is to
the admission of new evidence, and lies as well to evidence of any offi-
cial character as any other. The impropriety, as I conceive it, is this;
it brings a fact i)artially before the attention of the Tribunal; and how
can we complete the record, and how can we furnish the additional
information that is necessary for its proper understanding unless we
have access to all the documents, which we have not? How do we
know what oral interviews may have been indulged in by the Eepre-
Bcnttvtives of Great Britain and Eussia in this matter? How do we
285
286 ORAL ARGUMENT OF CHRISTOPHER ROBINSON, Q. C.
know what oilier facts never disclosed by these records may have
transpired"? It is permitting one party to lay before the Tribunal a
partial view when it is not in our power to comi)lete the view. That is
the objection, and it is a serious one; and that is the reason why it was
provided by the Treaty that the place, and the only place, in which evi-
dence was to be contained is the Case and Counter Case. It is, on
that that we ground our objection; that we ought not to be put to the
trouble, that we ought not to be put to the injustice, that we ought not
to be pat to the inequality, of having a partial fact laid before this
Tribunal when we have had no opiiortuuity and can have none to lay
before the Tribunal such other additional facts as may belong to it and
which must be regarded in order to arrive at a proper understanding.
Sir KiCHARD Webster. — I do notintend to answer the observations
that have been made, Mr. President, except to remind you of what the
circumstances are. In the United States Case they asserted that
Russia had claimed to exercise the jurisdiction of seizing ships outside
the three mile limit. That correspondence between Russia and Great
Britain respecting the modus vivendi has already been admitted, and,
not onlj^ admitted, but referred to by Mr. Phelps, he stating he intended
to argue upon it.
The President. — Facts already incorporated in the documents before
Tribunal, which is not quite the same thing.
Sir EiCHAED Webster. — These were papers not incorporated in the
documents. It was a Parliamentary paper handed in last week and to
which Mr, Phelps referred, saying he intended to rely upon it. We
informed the United States that at no time had Russia made this claim
the Attorney General made a statement to the Tribunal publicly with
reference to the fact that Russia had agreed to indemnify ships that
had not been inside the territorial waters, and that statement being
made, Mr. Phelps got up and said — he will endorse what I say — that
in the previous debate in the House of Lords, not a week ago, Lord
Rosebery had not referred to it — was he at liberty to refer to that debate
and I said Yes, to any documents public or otherwise supporting his
contention Mr. Phelps might refer. You interposed. Sir, and said I had
gone too far and it was only j)ublic documents that ought to be referred
to, and called attention to the fact that the telegram to the Attorney
General was in the nature of a private document and not public I then
informed you. Sir, feeling the weight of what you said, I would ascertain
if the papers were going to be presented to Parliament.
They have been presented to Parliament, and I, having given copies
to my learned friends, make good my promise by presenting them before
the Tribunal, I say that it is not new evidence at all. It is simply to
show the Tribunal the real facts respecting the action of Russia.
Lord Hannen. — Suppose Russia are under some terms with reference
to compensation, has that any bearing on the enquiry we are going
into.
Sir Richard Webster. — It has no bearing at all.
Lord Hannen. — Then why go into it?
Sir Richard Webster. — If your Lordship will pardon me except
the United States have introduced into their argument a statement that
Russia has claimed to exercise these rights outside territorial waters.
It is not a question of bargain at all. .1 told the Court before, the mat-
ter was investigated by a special commission, and the documents will
show what the actual claims of Russia have been in regard to the mat-
ter. It is only to prevent the Tribunal being under a misapprehension
in consequence of an inadvertent statement made the United States,
ORAL ARGUMENT OF CHRISTOPHER ROBINSON, Q. C. 287
The President. — i must say, as there has been an objection raised,
that I cannot allow you to proceed without a consultation with my col-
leagues in a matter which I, for myself, should have conceived was open
to every body; but, perhaps, that is because I am more accustomed to
the French procedure which enables you to bring- before the judges any
new fact that luay arise, with the object of haviug before them every
thing that has taken place. As the history of the world goes on, every
day brings forth new facts, and we do not shut our eyes to what goes
on, but then the rules of English Common Law, such as are enforced
both in England and America, are more severe, as concerns evidence,
than anything I have been accustomed to even in theory.
Mr. Carter. — Which rules have been adopted in the Treaty and the
prei)aration of these Cases.
Sir Richard Webster. — I may be allowed to say, Mr. President,
that I should not have kept faith with the Tribunal had I not brought
these documents before them, because in re])ly to the statement made
by yourself, with the concurrence, as I understood, of the other mem-
bers of the Court, that the public documents passing between the
countries can be referred to, I said recognizing that if the pai)ers were
made public and were presented to Parliament, they should be laid
before the Tribunal; and therefore I should not have kept faith if I had
not presented them.
The President. — We thank you for your intention. Sir Richard,
which is very loyal indeed, but we must consult between ourselves
before we allow you to go any further.
Sir Richard Webster. — Might I point out tliat the United States
cannot be allowed to f(mnd an argument that Russia has taken this
action, without our being in a position to put the true facts before you.
The President. — Of course, that is a thing we shall consider.
The Tribunal then consulted for a short time.
The President. — I wish jiersonally to explain what I meant when I
spoke of newspai)ers. I meant to say, of course, it is not the reading
of a newspaper which might be the embodying of an argument, but I
want to say, as men are naturally brought to take heed of all public
events which take place and such public events, we considered, are in
the reach of everybody, aiul that we might take heed of them. Of
course, if we were to hear by some commotion of nature that all the
seals had disappeared oft the face of the globe, it would be strange if
we could not take heed of it.
Mr. Carter. — Our own law contemplates a certain amount of infor-
mation which the Court might take note of, but not so far as you go.
The President. — It was only with reference to such an observation
of that kind, and I should not like to be misunderstood with regard
to it. So far as regards this particular case, after consideration, we do
not deem that it would be tit, at the present moment, to stop the pro-
ceedings of this Tribunal, and we therefore will raise no objection to
hearing the docuuient; but we will reserve to ourselves to consider
whether we will take it as evidence or reject it, when we have more
leisure to deliberate about the matter. It is only under that reserve
wow that we Avill ask Sir Richard Webster to proceed with his reading.
Sir Richard Webster. — I quite understand, Mr. President, that it
was subject to all reserves of that kind. I will read nothing but official
documents. On the 29th May (10th June) 1893, Mons, Chichkine writes
from St. Petersbourg — and my learned friends have copies of this:
288 ORAL ARGUMENT OF CHRISTOPHER ROBINSON, Q. C.
I have had the honour to receive the notes -which your Excellency was so good as
to address to the Imperial Ministry, dated the 17th (29th) November, and the 4th
(16th) and 9th (21st) December 1892, relative to the seizure in Behriug Sea of Cana-
dian schooners and fishing boats by Russian cruisers.
A special Commission having been appointed by Imperial Decree to examine into
the circumstances under which those seizures were made, the Imperial Ministry did
not fail to lay before it the depositions (affidavits) of the captains and crews of the
schooners concerned which accompanied the above-mentioned notes.
In reply to these commuuicatious I make it my duty, M. I'Ambassadeur, to transmit
to you tlie two reports inclosed.
Your Excellency will observe from the perusal of the first of these documents that
it deals with the assertions of the Canadian crews as to the privations alleged to
have been inflicted upon them at Petropavlovsk. In the opinion of the Imperial
Government the Commission has fully elucidated this matter. Nevertheless, if the
interested parties consider it necessary, they have the power to avail themselves of
the regular course provided by law in order to present their claims either to the
superior naval authorities or to the proper Tribunal.
Then follow two paragraphs about the treatment of the captain and
crew that are not material :
The second of the accompanying reports contains a detailed examination of the
circumstances which accompanied the seizure of the schooners and their boats. In
considering the legality of the captures effected by the Commanders of the Russian
cruisers and by the District Governor of the Commander Islands, the Commission
was guided by a principle the justice and equity of which cannot be disputed. It
recognized as lawful seizures of all vessels whose boats were seen or captured in our
territorial waters. It cannot, indeed, be, denied, that the boats constitute, jurid-
ically, an appendage of the schooner to which they belong. Consequently their
seizure in territorial waters renders the capture of the vessels, of which they in some
respects form part, perfectly legal.
If it were otherwise, a schooner could with impunity pursue seals on the coasts
by sending her boats there, and thus infringe the inviolability of territorial waters,
although herself remaining outside the said waters. Taking this view of the mat-
ter, the Commission recognized the legality of the seizure of the schooner "Marie",
"Rosie Olsen", "Carmolite"' and "Vancouver lielle" but was unable to do so in the
case of the seizure of the schooners "Willie McGowan" and "Ariel". There can,
however, be no question as to the serious nature of tlie indications which induce the
Commanders of our cruizers to institute a search on board these last-named vessels.
The " Willie McGowan", took flight as soon as she had sighted the Russian cruiser,
and she refused to heave to at the summons of the "Zabiaca".
Though the Commander of the Russian cruizer did not, see the boats of the
"Willie McGowan" engaged in the illegal pursuit of seals in our territorial waters,
he had been informed of it by the inliabitants of the coast. The search revealed
the presence on board of implements used for sealing on the coast, as well as of
seventy-six skins, of which sixty-nine had been taken from female animals, who
must therefore have been killed close to the shore; 90 per cent of the skins found
on board the "Ariel" had probably also been taken from nursing females, and
belonged to seals caught in Russian territorial waters.
The importance of this evidence was fully recognized by the Commission. It was
not considered, however, as amounting to jjositive proof such as would justify the
seizure of the schooners, owing to the absence of an essential condition: their l)oat8
had not been sighted in actual pursuit of seals in Russian waters.
In bringing what precedes to your knowledge, M. I'Ambassadeur, I consider it my
duty to inform you that, in view of the findings of the Commission as described
above, the Imperial Government would not reliise to proceed to an assessment of
the indemnity to be paid to the owners of the schooners "Willie McGowan" and
"Ariel".
I need not trouble the Court by reading the other papers which are
before the Tribunal. They are the detailed ])articnlars goiug into each
ship, and all the papers are at my learned friends disposal.
The President. — But we do not admit that the papers are before
the Court, because they are not here.
8ir EiCHARD Webster. — I understood they were before you, Mr.
President, or I would not have begun to read it. I was not aware they
had not been handed in and I apologize.
Lord IlANNEN. — It was quite right not to hand them in till it was
decided they were admissible.
ORAL ARGUMENT OF CHRISTOPHER ROBINSON, Q. C. 289
Sir Richard Webster. — Except that I understood tbat the Presi-
dent rather comphiiued of my statement that they were not before the
Court. I thought they were on the table or I wouhl have waited. I
do not wish to read the hist page. It is the same thing, and, again,
any passage in the papers will be at the disposal of my learned friends.
There is nothing to qualify w^hat I said in any way.
The President. — Now, Mr. Robinson, will you proceed?
Mr. RoiuNSON. — Sir, there is one matter as to which I wish to give a
reference in order to clear up what has been a misconcei)tion. There
h;Ks been a misapprehension with regard to a letter of Mr. Tupjier, to
which Mr, Coudert referred at pages 092 and 093, and he founded an
argument upon it, and read it with considerable emphasis as against my
learned friend. He spoke of it as the Couroune de VEdifice., but he read
only a letter at pages 90 and 91 of K*^* 3 (1892), volume 3 of the Appen-
dix to the Britisli Case. He was asked to read a letter at page 105, and
he said he would do so if he had time. Unfortunately, it escaped his
attention, and he did not read it. That shows exactly what was Mr.
Tupper's meaning, and does not at all bear the construction which my
learned friend, Avith considerable triumph, pointed to as bearing against
the view that we were advancing on a question that was i^ractically more
a matter of damages than anything else.
The Government is of the opinion that The total cessation of sealing in Behnng's
Sea will greatly enh.'iuce the value of the produce of the coast fishery, and does not
anticipate that British sealers will suffer to any great extent by exclusion from
Behring's Sea.
Xow, if you will turn to page 105 of that same part, in the same
Appendix, you will see that in a letter by Mr. Tup[)er of the 19th of
September some eight days later, to the Victoria Sealers' Association,
he says:
I will, however, repeat that Her Majesty's Government has intimated that, while
they incline to the Itelief that tlie closiue of Behring's Sea to all scaling operations
both on land and at. xea will so enhance the value of tlie catch that the prices realized
will compensate the sealers for their loss of the Behring's Sea catch, they will be
prepared to consider claims to recompense where it can be shown that actual loss has
accrued by reason of the legislation under review.
This shows that the cessation Mr. Tui)per was referring to was the
cessation on the Islands and elsewhere, and not the cessation merely at
sea; and that the argument assumed to be founded on his letter is not
well founded.
I have done now with all the matters of detail connected with this
question of Regulations which I desired to refer to, and I wish only to
refer to two other general matters before proceeding to those fewremarks
which I desire to make with regard to the subject of Regulations in
general. These are tlie conduct of Canada in this matter, and the
conduct of the Commissioners.
The conduct of (3anada has been made the subject of very severe
stricture by my learned friend, Mr. Phelps, in the United States Argu-
ment on pages 177 to 179; and you will also tind that Mr. Blaine in his
despatch of the 29th of May, 1890, volume I, Apjiendix to the United
States Case, page 212, and in the same volume at i)age 218, complains
I may almost say bitterly of the conduct of Great Britain, practically
because Great Britain had taken the advice of Canada and consulted
the interests of Canada in this matter, and had not concluded an
arrangement for a close time, as to which there was some misunder-
standing between my learned friend, Mr. Phelps, and Lord Salisbury.
B s, PT XIV 19
290 ORAL ARGUMENT OF CHRISTOPHER ROBINSON, Q. C.
Now I venture to say, in the first place, that Canada did simply what
it was her duty to do; and, in the second place, that for what she did
is entitled, not to the strictures of the United States, but to their thanks.
What Canada did, and what they complain of, as you will see by refer-
ence to the pages I have just given the reference to — 177 to 170 — is that
she i)reveiited the arrangement for that close time being consummated.
Mr, i'helps says at page 177:
It will be seen from the fom'spoiidence between the governments of Great Britain
and the United States, printed in the Appendix to the Case of the United States, that
a convention between the two conntries was virtually agreed upon as early as 1887,
"vvith the full concurrence of Russia, under which pcdagic sealing in Beliring Sea
would have been ])rohibited between A]iril 15 and October 1 or November 1 in each
year, and that the consummation of this agreement was only prevented by the
refusal of the Canadian (Jovernment to assent to it. The propriety and uecessitj' of
such a repression was not doubted, either by the United States, Great Britain, or
Russia. This convention, if comjik'ted, would liave fallen far short both of tlie just
right and the necessity of the United States in respect of the protection of the seals,
as is now made apparent,
and so on. And then they speak of the conduct of Russia, which we
have been speaking of just now, and they say
Instead of taking its defence into its own hands, the Government of the United
States has refrained from tlie exercise of that right, has submitted itself to the judg-
ment of this Tribunal, and has agreed to abide the result. Its controversy is only
nominally with Great Britain, whose sentiment and whose interest concur in this
matter with those of the United States. It is really with a province of Great Britain,
not amenable to her control, with which the United States Government has no
diplomatic relations, and can not deal independently.
And so on.
Now let us see for a moment what was the proposition that was made,
and what were the circumstances at the time. The seizures had taken
place; and Great Britain had protested against them, and had set out
the grounds on which she conceived those seizures to be illegal. You
will find Lord Salisbury's despatch in the third volume of the British
Appendix at page 88. Tlie trial, as you will remember, had taken ])lace
sometime in the autumn of 1887. The brief is to be found at page 112;
and Mv. Bayard on the 7th February, 1888, had written a letter suggest-
ing this close time from the 15th April to the ]st October or November.
On the 17th February, 1888, Mr. Phelps had submitted that letter of
Mr. Bayard to Lord Salisbury, and the misunderstanding arose between
these two gentlemen as to the question whether Lord Salisbury had
really definitely assented to such a close time or not. Now what was
the close time that was suggested ? You remember that the controversy
had been as to the right of Great Britain to take seals in Beliring Sea.
We had been disputing about this matter, and, substantially, the propo-
sition was this: "You have been taking seals in Behring Sea; you
assert that you have an equal right there with us; we assert that your
action there is illegal; let us settle it all amicably by ])roviding that you
shall never go into Behring Sea while there are any seals there to be
taken ". Now I venture to think, as the learned Attorney General said,
this is not a propositicm which either Mr. Bayard or Mr. Phelps, if they
had known the facts of seal life, would have advanced, because practi-
cally it was a suggestion to give up everything Great Britain had been
contending for from the beginning. As we all know now, to say that
no vessel shall enter Behring Sea and that there shall be a close time
for seals between the 15th April and the 1st October is practically to say
that there shall be no sealing there at all. because there is no other
time except between those dates when you can take seals there.
ORAL ARGUMENT OF CHRISTOPHER ROBINSON, Q. C. 291
Then that letter was submitted by Mr. Phelps, as yon will find at
page 181 of the Appendix to which I liave been referring, with these
observations, as they are reported by Lord Salisbury to Sir Lionel West:
The United States Minister called to-day at the Foreign Office and spoke to me
about the question of the protection of the fur seals in Beliring's Sea.
He said that the difficulties in regard to the seal fisheries in that sea were mainly
connected with the question of the close time, and that no attempt had been made
by the authorities of the United States to stop the fishing there of any vessels at the
time when it was legitimate.
Surely that contains a plain inference that there was in Behring Sea
a legitimate and an illegitimate time, that is to say, other than the one
proposed: in other words, that there was a time when it was legitimate
to take seals in Behring Sea and there was a time when it was illegiti-
mate to take seals in Behring Sea; and I suppose that Mr. PheliJS
thought that those were the lacts.
i^ow what was done upon that was that this offer, as is usual and
right, was referred to the Colony which had the most important inter-
est in the matter by the Foreign and Colonial Office in London. On
the 3rd March, as appears at p. 182, the Foreign Office transmitted to
the Colonial Ofhce a copy of Mr, Bayaid's letter. Lord Kuutsford,
having received that, on the 12th March says, p. 183 :
It will be necessary to consult the Canadian Government on the proposal to estab-
lish a close time for seals in Behring Sea before expressing a final opinion upon it.
Showing that neither he nor Lord Salisbury at that time had the
knowledge of seal life which was necessary in order to enable them to
see the effect of this proposal.
Mr. Phelps. — What was the letter you referred to?
Mr. EoBiNSON. — It is shewn it was submitted, and Lord Knutsford
at page 183 says it will be necessary to consult:
Mr. Phelps. — That is Mr. Bramston's letter I believe, on behalf of
Lord Knutsford.
Mr. Robinson. — Yes, he was one of the Secretaries.
In reply, to your letter of the 3rd instant, I am directed by Lord Knutsford to
acquaint you for the information of the Marquis of Salisbury, that he thinks it Avill
be necessary to consult the Canadian Government on tlie proposal to establish a close
time for seals in Behring Sea before expressing a final opinion upon it.
A copy of your letter and its inclosure has been forwarded to the Governor General.
That was Lord Lansdowne at the time
with a view to obtaining an expression of the views of his Ministers upon it.
I am to add that Lord Knutsford is inclined to view the proposal of the United
States Government with favour, but that he presumes that it will be made quite
clear, should Her Majesty's Government assent to it, etc.
The rest is not very material and does not affect the subject matter
of the controversy. Then, the proposal having been sent out in accord-
ance with that view, on the 7th July, 188S, referring to page 213 of that
same Appendix, the Government of Canada, having considered it, sent
a memorandum expressing their view ui)on it, and citing the despatch
or conversation referred to by Lord Salisbury. In this memorandum
it is said.
This clearly implies that Lord Salisbury had been led by the United States min-
ister to believe that there is a fixed close and open season for the killing of seals in
Behring's Sea which is common to all vessels of all nationalities, and that during the
open season these may legitimately and without molestation pursue the business of
catching seals.
The facts of the case appear to be that within the limits of the Territory of Alaska,
R'hich by the United States cnritcntion includes the waters of Pehring's Sea as far
westward as a line drawn li-om a point in Behring's Straits South-west to the merid-
292 ORAL ARGUMENT OF CHRISTOPHER ROBINSON, Q. C.
ian of lonoitiide 173° west, the killing of fur bearing animals, amongst ■which the
seal is included, is prohibited by law; that repeated warnings to this effect have
been given by the United States authorities, and that vessels both of Canada, and
the United States have within the past two years been seized and condemned for
killing seals within these waters. It also appears that in the Ishmds of St. George
and St. Paul during the mouths of June, .July, September and October of each year,
the United States Government allows theslaugliter of seals to the number of 100,000
by certain citizens of that country known as the Alaska Commercial Company, for
which monopoly the United States Government is paid a yearly revenue of more than
300,000 dollars. At no season of tlie year, and to no other persons whatever, is it
permitted to kill a single seal within what is claimed as the limits of the Territory
of Alaska. It is evident, therefore, that there is no part of the year when citizens
of any country, with the sole exception of the Alaska Commercial Company, can
legitimately kill seals within the limits named; and when Mr. Phelps stated to Lord
Salisbury tluit "no attempt had been made by the authorities of the United States
to stop the tishing there of any vessels at the time when it was legitimate" his state-
ment should be read in conjunction with the fact that there is no period of the year
when it is legitimate for any vessels to fish for seals in the waters of Alaska?
And then, after citing some other things to show the killing on the
Islands, it proceeds to say :
The time proposed as close months deserves consideration, viz., from the 15th April
to the 1st November. For all practical purposes, so far as Canadian Sealers are con-
cerned, it might as well read from the 1st .January to the 3lst December.
And then it explains the reason, and says:
But the United States Government propose to allow seals to be killed by their
own citizens on the rookeries, the only ])laces where they haul out in Alaska, during
June, July, September, and October, four of the months of the proposed close sea-
son. The result would be that while all others would be prevented from killing a
seal in Behring's Sea, the United States would jjossess a complete monopoly, and the
effect would be to render infinitely more valuable and maintain in perjietuity the
seal fisheries of the North Pacific for the sole benefit of the United States.
It is to be noted that tbe area proposed by Mr. Bayard to be affected by the close
season virtually covers the whole portion of the Behring's Sea in which the exclu-
sive right of sealing has, during 1886 and 1887, been x^ractically maintained by the
United States Government.
To this is added a pan of the North Pacific Ocean, north of 50° of north latitude,
and which commands tbe approach of the seals to the passes leading into Behring's
Sea. By the adoption of this area and close season the United States would gain,
by consent, what she has for two years held in defiance of international law and the
protests of Great Britain and Canada.
And while this area Avould be held closed to all operations except to those of her
own sealers on the Pribilof Islands, the north-west coast of North America up to the
50th parallel of north latitude and the sealing areas on the north-eastern coast of
Asia would be open to her as before.
Then:
It is to be borne in mind that Canada's interest in this industry is a vital and
important one, that she lias had a very large capital remuneratively employed in it,
and that while l)y the proposed plan the other Powers chiefly interested have their
compensations Canada has none. To her it would mean ruin so far as the sealing
industry is concerned.
Upon that, of course, when received by England any idea of accepting
that proposal was rejected.
Now I ask again is there any i-eason why the United States should
find iault with the course Canada took? Is there not ou the contrary
every reason to say that Canada rather deserves their thanks, because,
if that proposal had been made with knowledge of the facts, could it
have been termed a fair proposal? If they had said to England, or
l)roposed to England, instead of putting it in that form, what it really
and inevitably means, — " Let us settle this matter amicably by pro-
viding that you shall never seal in Bebring Sea at all", — the proposal
would liave been a mockery. That is all tlint Cnnada did and pointed
out. It is for this that Canada seems to be blamed as she has been;
ORAL ARGUMENT OF CHRISTOPHER ROBINSON, Q. C. 293
aTicl I therefore desire, so far as it is within my j)ower, to present the
facts before this Tribunal, to endeavor to set it ri<>lit. It does seem
strange to one of us to tind the United States complaining of the con-
duct of England in consultino" and deferriuo- to the wishes of one of her
most important colonies: and certainly the existeiiceof their own great
country is not a very appropriate iHustration of the advisability of a
different course on the i)art of the Mother Country. If she had known
long ago what she knows now, and had been as well advised as now,
the circumstances might have been very different; and from wliatever
source such a reproa(;li might come, it does not seem to us to come very
appropriately from my learned friends.
Now I wish to say a word as to the conduct of the Commissioners,
which has been also very severely commented upon in different places
by my learned friend.
Senator Morgan, — I do not know whether it is stated any where in
the papers, IMr. Kobinson, but, if so, can you give us the date of the
tirst official act of Canada in claiming the right for her citizens of pelagic
hunting in Behring Sea?
Mr. Kobinson. — From the beginning, in 1886.
Senator Morgan. — I vranted to know the beginning.
Mr. Kobinson. — The moment that the vessels were seized.
Senator Morgan. — Not before that"?
Mr. Kobinson. — No there was no object in asserting it till somebody
interfered with it. As you know, we had been fishing in Bcdiring Sea
for some years. If I recollect rightly the first vessel entered Behring
Sea to seal in 1884.
Senator Morgan. — Tlie first Canadian vessel?
Mr. Kobinson. — The first Canadian vessel.
Senator Mokgan. — Can you inform me if the vessel went in under a
fishing license'?
Mr. Kobinson. — No, I cannot.
Senator Morgan. — You do not know what the clearance was?
Mr. Kobinson. — No, but I should have thought not.
Mr. TUPPER. — There was no license required.
Senator Morgan. — But there is a clearance in every case that states
the destination of the ship.
Mr. Kobinson. — Yes, I should suppose there would be.
Lord Hannen. — Are vessels of that size required to make any such
declaration? I should doubt it.
Mr. Kobinson. — I cannot say.
Sir John Thompson. — They do not make any declaration, I thiidv.
Mr. Tupper. — They clear for any place, and they would say "North
Pacific".
Sir KiCHARD Webster. — Simply where they are going to sad for;
that is all.
Senator Morgan. — But every ship that carries a national flag is
bound to have a destination when it leaves a j)ort.
Mr. Kobinson. — I find in a memorandum that I have made that
pelagic sealing began in Washington Territory and British Columbia
in 1809. There were only four schooners, in 1878 to 1879, and the first
vessel that sealed in Behring Sea was the " Mary Evans" in 1881. That
is the first British vessel. The " San Diego" was there before, but she
was American. Those are the facts.
Now, with regard the conduct of the Commissioners, as to which I
desire to say a few words, I wish to speak of that for this reason; those
Gentlemen have been subjected to very severe strictures, and I venture
294 ORAL ARGUMENT OF CHRISTOPHER ROBINSON, Q. C.
to say strictures absolutely and utterly uufounded. I do not know that
it would be possible to speak in terms more severe of Gentlemen pre-
tending to any character in the scientitic world, or to make charges
which, if true, would be more certain to ruin their reputation and
standing there.
Now, let us see if I am justified in saying that? In the first place, I
refer to the United iStates Argument, at pages 72 to 75, concerning the
Reports of the Commissioners; but I do not desire to read more than
is necessary; and I will, therefore, only read from page 74.
Sncli being the view which the Commissioners of Great Britain took of their own
functions, their report should be regarded as partaking of tlie same character, and
such it appears to be upon inspectidu. There is in no part of it any purpose dis-
cernible to discover and reveal the true cause which is ojieratiug to dimiiiish the
numbers of the fur-seal, and to indicate the remedy, if any, which science points out.
It is apparent throughout the report that its authors conceived themselves to be
charged witli, the defense of the Canadian interest in pelagic sealing; and it conse-
quently openly exhibits the character of a labored apology for that interest, par-
ticularly designed to minimize its destructive tendency, and to support a claim for
its continued prosecution. This being its distinguishing feature, it is, with great
respect, submitted that any weight to be allowed to it as evidence should be con-
iined to the statements of facts which fell under the observation of its authors, that
these should be regarded as the utterances of unimjieachable witnesses of the highest
character, testifying, however, under a strong bias ; and that the opinions and reason-
ings set forth in it should be treated with the attention which is usually accorded to
the arguments of counsel, but as having no value whatever as evidence.
Then, at page 206 of the same Argument, they are spoken of in these
terms :
The Commissioners of Great Britain have in their report studiously avoided the
real problem which it was their business to solve. That problem, according to their
own view, was to devise some scheme of pelagic sealing which would preserve that
pursuit, and at the same time not be fatally destructive to the herd of seals.
Then it proceeds to say to what they should have done; and then :
The fundamental error of the Commissioners of Great Britain, as of all who either
deceive themselves or attempt to deceive others, with the illusion that it is possible
to permit in any degree the indiscriminate pursuit of a species of animals like the
seals, so eagerly sought, so slow in increase and so defenseless against attack, and
at the same time to preserve the race, consists in assuming that the teachings of
nature can be replaced by the cheap devices of man. The first and only business of
those who, like the Commissioners, were charged with the duty of ascertaining and
declaring what measures were necessary for the preservation of this animal, was to
calmly inquire what the laws of nature were, and conform to them unhesitatingly.
It would then have been seen by them that no cajdure whatever of such animals should
be allowed except capture regulated iu conformity with natural laws; and that all
unregulated capture was necessarily destructive, and a crime.
Then they go on to say :
This error is not imputable to ignorance on the part of the Commissioners. It does
not arise from any failure to take notice of the nature and habits of the animal.
There is, indeed, in their report an avoirlance, which appears to be industrious, of
any special inquiry into the nature and habits of seals, with the view of ascertaining
and reporting for the information of this Tribunal whether they really belong to that
class of animals which are the tit subjects of property, or that of which ownership
cannot be predicated, and \yhich can consequently be protected against excessive
sacrifice only by the rough and ineffective expedient of game laws; but, neverthe-
less, they fully admit that jierfectly effective regulation of capture is easily possible
at the breeding places and there alone.
They say :
It is, moreover, equally clear from the known facts, that efficient protection is
much more easily afforded on the breeding islands than at sea. The control of the
number of seals killed on shore might easily be made absolute, and, as the area of
the breeding islands is small, it should not be difticult to completely safeguard these
from raiding by outsiders and from other illegal acts.
ORAL ARGUMENT OF CHRISTOPHER ROBINSON, Q. C. 295
That is a quotation from what the Commissioners vsay.
What is the avowed ground (the word "is" being in italics) aside from the
assumed right of individuals to carry on pelagic sealing, upon which these Commis-
sioners felt themselves not warranted in yielding to the decisive facts thus stated by
them, and declaring that a perfect protection would be given to the seals by simply
prohibiting capture at seal It is, to shortly sum it up, that the power thus pos-
sessed by the occupants of the breeding places has been abused in the past, and
probably will be in the future, by an excessive slaughter of young males.
In other words, these gentlemen ask, as if it was something they were
unable to comprehend, the Commissioners having found it was easy for
those wlio own the Islands to kill the seals under efficient protection,
what was there to prevent them from simply saying that the rights of
all others, if they had any, should be taken from them, and all tlie rights
over the seals given entirely to those who own the Islands? They did
not take the same view of rights as my learned friends, that the owner-
ship of these Islands gave them a right to slaughter the whole race of
seals and take away all rights from others. That is a matter which my
learned friends, with the one sided view which they take of their case,
seem unable to comprehend. Then they go on to say:
We are reluctant to make any reference to motives; but, where opinions are, as in
this case, made evidence, the question of good faith is necessarily relevant. Why is
it that these CommiMsiouers have chosen to disregard the plain dictates of reason and
natural laws which they were bound to accept, and to recommend some cheap devices
in their place, when they so clearly perceived those dictates? We are not y)ermitted
to think that this was in conscious violation of duty, if any other explanation is pos-
sible. The only apology we can find comes from the fact, clearly apparent upon
nearly every page of their report, that the predominating interest which they con-
ceived themselves bound to regard was not the preservation of the seals, but the
protection of the Canadian sealers.
And then they proceed somewhat further with what I need hardly
continue to read, Kow if the Tribunal will turn to page 251 of the
same argument it speaks of the "wild assertion" of the commissioners
about some other matters, and say that nothing can justify it. Let us
see w^hat that "wild assertion" is.
It would seem from the testimony in the Case quite certain that the pregnant
females would lose their young if they were on the point of delivery when reaching
the islands, and if driven off by man, or by accident, they certainly would be exposed
to great danger while looking for another home, even assuming this exercise of sound
judgment in extremis to be probable. Such difficulties do not, however, trouble the
Commissioners, wlio are satisfied that if they were to be debarred from reaching the
islands now chielly resorted to for breeding purposes, they would speedily seek out
other places upon which to give birth to tlieir young. (Report of British Commis-
sioners, Sec. 28,)
This is based upon "experience recorded elsewhere." We fail to find any such
recorded experience which would justify so wild an assertion.
I venture to ask any Member of this Tribunal, has any one the
slightest doubt that if you were to line the Pribilof Islands witli men
and prevent the seals landing there, the seals would not as soon as
possible And another place to haul out upon? Does anybody believe
that if the Pribilof Islands were submerged to-morrow the seal race
would disappear? Our Commissioners did not believe it; and yet it is
asked what can justify their wild assertion that the seals would find
some other place?
Tlien, if you will turn to my learned friend, Mr. Carter's, oral argu-
ment, he says, after speaking of what he conceives to be the course
they took, at page 421 :
That is a pretty decisive fact. In what category does it put them? Why they
are partisans, just right off, just as much as my friends on the other side are here.
They are defending from the beginning to the end the interests of pelagic sealing.
296 ORAL ARGUMENT OP CHRISTOPHER ROBINSON, Q. C.
How ilops that operate upon tlie. fonfidence T^liicli tliis '!'i ilmiial onolit to plare on
their com'lnsioiis? It iseutirely dostriK tivc, — tlial is the yimplc matter of it, — exce])t
as to a very limited extent. Where these gent] enien speak and testily as to tacts
which they say felJ nnder their personal observation, of coin se they are to be treated
as witnesses of those fa<ts of the most nnimpeaeliable cLaraeter,'but, nevertlicless,
Avitnesses acting under a strong bias. "Where, on the other hand, they proceed to
give ns their opinions as to what tJie facts are, their opinions are to be discarded
altogether as being the opinions not of impartial but of partial observers, which are
like the opinions of Counsel, and dilfer in no respects from them.
At page 595, Mr. Condert speaks in mucli the same way. He says
tbey seem to assume tliat:
There was a rivalry between the Canadian sealers on the one side and the United
States on the other; ;nid that it Avas their ])atiiotic duty to su])]iort ]Hdagic sealing
whatever miglit be tlie results to the seals. jNly friend Mr. Carter has already
alluded to this, and 8i)oken upon it, and, in answer to a question from the learned
President, has stated that he attaches no importance whatever to statements in the
report.
In another sense I attach a great deal of importance to the statements in therejiort
whenever they may be construed as admissions. 1 say it now, and I say it fraukly,
I consider these gentlemen as hostile witnesses; 1 am at liberty to dispute their
statements whenever thej" are against the side which I am advocating, — of course
not statements of what they have seen themselves, for I accept their assurances
without hesitation; but whenever they testify against me I have a right to dispute
it; and whenever they testify in my favour I have a right to accept it as an admis-
sion; and when I am able to produce an admission from the British Commissioners
that squarely, flatly, emphatically covers a certain point, I shall consider my func-
tion fulfilled as to that, and assume that my friends on the other side are satisfied
with that kind of evidence. And this derives an additional force from the fact that
it is a part of the case. These gentlemen have received the very hi;;!! honour (and
their zeal, if nothing else, entitled them to it) of having their report incorporated
into their Country's Case, and treated as part of it.
At another page of that learned gentleman's argument, page G38,
he mates use of perhaps as strong an observation as could Avell he
used, in its result and effect, when he says:
They are our seals. That is conceded in this way: the British Commissioners
themselves say (and, as I have said, the value of a concession from them is enor-
mous, I conceive it to he more valuable than one from my learned friend, Sir Charles
Eussell).
In other words, these gentlemen were absolutely blinded by preju-
dice, and incapable of performing their duty or of understanding wliat
tlieir duty was.
Now, let us turn to page 229 of the printed Argument, which is, if
possible, even stronger. Tlielieport is spoken of in these terms:
But they have presented a great mass of statements of their own, evidently based
in a great measure upon conjecture, much of it directly traceable to luanifest ]>ar-
tiality, and marked, to a singular degree, by the exhibition of prejudice against the
one party and bias in favor of the other. The extent to which this has been carried
must, in the eyes of all impartial persons, deprive it of all value as evidence.
Now, at some place, they speak of their own Commissioners by
contrast.
Mr. Carter. — I tliink that is on page 75.
Mr. lioBiNSON. — Yes; I am mucli obliged. It is on page 75. They
speak of their own Commissioners, and contrast the view which they
took of their duty with the view the British Commissioners took. It
says:
They are not, indeed, to be presumed to be less interested in behalf of their own
nation than their associates on the side of Great Britain.
Mr. Carter. — You should begin a little earlier if you want the
whole of it.
Mr. Robinson. — I will begin where you like.
ORAL ARGUMENT OF CHRISTOPHER ROBINSON, Q. C. 297
Their couceptioTi, however, of the ihities imposed upon them was widely difTerent.
They regarded themselves as called upon simply to ascertain the truth, whatever it
migiit he, concerning seal life in Behring Sea, and the measures necessary for its
proper protection and preservation. This seemed to them essentially a scieutitic
inquiry, and not to emhrace any consideration of national rights, or of the freedom
of seas, — a class of questions which they would prohaldy have deemed themselves
ill qualified to solve. They are not, indeed, to he presumed to be less interested in
behalf of their own nation than tlieir associates on the side of (Jreat Britain ; but
as they did not conceive themselves charged with the duty of protecting a supposed
national interest, they could remember that Science has no native country, and that
they could not defend themselves, either in their own eyes or before their fellows
of the scientific world, if they had allowed the temptations of patriotism to swerve
them from the interests of truth.
In otlier words, that is a cliarge, almost as plain as if made directly,
that while that Avas tlie character of their Coniinissioiiers, the British
Commissioners cannot de!eiKl themselves in their own eyes, or in the
eyes of the scieutitic world, because they have allowed the temptations
of patriotism to swerve them from the interests of truth.
Now, it is worth while to see what our Connnissioncrs were charged
to do, and what they did do. One thing is plain: these charges are
either well-founded or ill-founded. If there is a shadow of foundation
for them, these Commissioners ought not to have been appointed; they
were unfit for their duty; they misunderstood their duty, and ought
not to be employed again, because their patriotism, or temperament, or
bias, unfits them for any such functions.
aSlow you will find on looking into the Commissioners' Eeport, — and I
do not know that I need trouble the Tribunal with reading any of it
because I do not understand it to be charged against them that they
have reported upon any subject that they were not instructed to report
upon : in other words, I do not understand — at all events, I understood
Mr. Carter to say, that that was not what he did charge when we
thought that he made such an accusation — that they have repjrted
upon what they were not instructed to report u))on, or have expressed
opinions connected with seal-life which they were not authorized to
express, — you will find, at page V of the first part, of their Keport,
they are directed to enquire
What international arrangements, if any, are necessary between Great Britain and
the United States, and Kussia, or any otlier Power, for the purpose of preserving the
fur-seal race in Behring Sea from extermination?
Her Majesty's Government have jirojiosed to the United States that the investiga-
tion should be conducted by a Commission to consist of four experts, of whom two
shall be nominated by each Government, and a Chairman, who shall be nominated by
Arbitrators.
If the Government of the United States agree to this proposal, you will be the
Delegates who will represent Great Britain in the Commission.
But, in the meanwhile, it is desirable that yon should at once commence your
examination of the question, and that for that purpose you should ))roceed as soon
as you conveniently can to Vancouver, from whence the Lords Commissioners of the
Admiralty have been requested to provide for your conveyance to the various seal-
ing grounds and other places which it may be expedient for you to visit.
Application has been made to the United States Government for permission for
you to visit the seal islands under their jurisdiction, and a similar request will be
addressed to the Russian Government in the event of your finding it necessary to
visit the Commander Islands and other Russian sealing grounds.
Your attention should be particularly devoted to ascertaining —
1. The actual facts as regards the alleged serious diminution of seal life on the
Pribilof Islands, the date at which such diminution began, the rate of its progress,
and jiny previous instance of a sinular occurrence.
2. The causes of such diminution; whether, and to what extent, it is attributable
(a.) To a migration of the seals to other rookeries.
(&.) To the method of killing pursued on the isl;nids themselves,
(c.) To the increase of sealing- upon the high seas, and the manner in which it is
pursued.
298 ORAL ARGUMENT OF CHRISTOPHER ROBINSON, Q C.
I need scarcely reminfl you that your investigation should be carried on with strict
impartiality, that you should neglect no sources of information which maybe likely
to assist yuii in arriving at a sound conclusion, and that great care should be taken
to sift the evidence that is brought before you.
Now, tliey certainly liad no n^\\t to inisapprehend their dnty. They
were expressly directed to conduct this investigation with great impar-
tiality. The charge is that they have conducted it with nothing but
partiality, have left out of consideration every duty which imi)artiality
made incumbent upon them, and have been guided only by their bias
and partiality.
Then I do not know that there is anything else, except that in their
report they say their main object was to en(]uire what international
arrangements were necessary, and describe the course they took and
Avhat they did.
Now let us see what it is they reported upon. Having been directed
to go to the Islands, and the United States having concurred in that,
and having offered all facilities for theii' making that investigation, we
must assume that they came to their conclusions either honestly or dis-
honestly. If in their Judgment, as is the fact, they found the methods
pursued on the islands were defective, and were, to a large extent,
accountable for the present defective or injurious state of the seal herd,
were they to say so, or were they not. Would it have been consistent
with their duty if, having enquired and found certain defects, they
omitted to report them? If for example, they came to the conclusion
(and, as my learned friend put it to you, it was the sim])lest thing in the
world) all you have to do is to stop killing on the islands or improve
your methods there, or stop pelagic sealing on the other hand, and then
the seals will not be destroyed, they might have said that after this
investigation, or indeed without any investigation at all; but was that
their duty? When they found you could kill on the islands with dis-
crimination was it their duty to say, and is it incomprehensible that
they should not say at once: "As they discriminate on the islands, and
can kill with care what they choose to kill, you should, therefore, take
away such rights as have been exercised from time immemorial to kill
at sea." If not, they have performed the exact duty they were sent to
perform. As thecommissioners have in another place said, undoubtedly
the best remedy would be to i)rohibit all killing; but they were aware
of the existence of these rival interests, and that it was that which led
to this enquiry, and they could not but be aware that the object of their
being sent to make the investigation was, as a matter of fact, that these
rival interests had come to a certain extent in collision, and the diffi-
culty was to reconcile them.
For that purpose they had to enquire into these matters, and report
the conclusion they had arrived at. I do not desire to say more than to
ask the Tribunal to refer to, as I have no doubt they will, and read the
respective reports, on both sides. I desire the Commissioners to be
judged, not by what any person may say or think of them. I do not
speak of their character, because personal knowledge and personal feel-
ing might influence what one might say; but I speak of their work as
it is presented to this Tribunal, and I ask the Tribunal to judge of
them by their work. 1 will venture to say this. 1 am glad indeed that
on our side there has been no such tone adopted or charges made. I
am willing to say that I think we should not have been justified in mak-
ing them; but I assert that we have, at least, as much justification for
making such charges against the United States Commissioners as they
have for making them against the Commissioners of Great Britain; and
ORAL ARGUMENT OF CHRISTOPHER ROBINSON, Q. C. 299
I will endeavor to justify that by a Comparison of the two reports.
What have our Commissioners reported"? They have gone there and
examined, and rejjorted not only the facts they uelieved to be true,
but the evidence upon which they came to those conclusions; and when
they found it impossible to come to a positive conclusion, I think the
Tribunal will bear me out in saying, they have indicated those matters
upon which, in their judgment, the evidence is yet so incomplete that
doubt must remain.
Now what is it that the United States Commissioners have done?
As a matter of fact our Commissioners spent more time in the enquiry,
and paid three visits to the islands, and visited the Commander Islands,
and, on the whole, made a longer investigation, though whether it was
more thorough or not must depeiul on the judgment of those who read
the detailed Report of what they did given by each body; but the
United States Commissioners, having investigated, have expressed
positive opinions on almost every thing, and positive opinions on noth-
ing in a direction that is not in favor of the United States. I do not
charge them with being blinded by bias, patriotism, or prejudice, I
simply point to facts. They say, for example, in the United States
Case, page 362 :
The assumption that driving is seriously injurioiis to the reproductive powers of
the male is doubtless unfounded, being quite contrary to the declared belief of
Captain Webster and other sealers of long experience. Against every assertion
of this kind it is only necessary to put the fact that there is no evidence of a lack
of virility on the rookeries,
and so on.
Now then I ask — you have heard all the evidence — is that a Eeport
that carries value in the eyes of an impartial Tribunal ? What becomes
of the statement of Messrs. Lavender, Elliott, Palmer and Goft", who all
state to the contrary from personal observation. I do not deny there
are others who differ from them; I simply say that is a fact upon which
there is the strongest body of evidence in favor of the contrary con-
clusion, which the United States Commissioners utterly ignore, when
they say that any idea of that sort is doubtless unfounded, and that
the United States, or rather their lessees on the island, are not in any
way in fault. Our Commissioners having investigated for themselves,
and being supported by the evidence of these United States officials,
come to the contrary conclusion, and I venture to submit they are more
supported by the weiglit of evidence.
Now the United States Commissioners in another place say that to
propose a radius of ten, thirty, or even fifty miles gives you the impres-
sion that such a proposition was not intended to be seriously considered.
Now is that a reasonable, fair, unprejudiced statemoit, when we know
that this idea began by the proposition of a zone from the United States —
and when we know it is supported by the adoption of a zone on the
part of Russia, which probably has the best information in the world
on the subject? Is it reasonable or sensible to say — is it unprejudiced
to say — that such a proposition, when made, could not have been
intended to have been seriously treated*? 1 do not care whether it is
adopted or not — I say the pvox)osition when made is entitled to the
serious consideration of any reasonable unprejudiced man, and I say
nothing more. Then they say that if there is not to be a repetition
with regard to these rookeries of what has happened with the rookeries
of the Southern Ocean and of other localities where seals once tiour-
ished, measures adequate to the existing evil, heroic if need be, must
be adopted. Now I venture to say they knew very little, or they would
300 OEAL ARGUMENT OF CHRISTOPHER ROBINSON. Q, C.
have known that there never has been in the southern ocean the exter-
mination of any seal herd by pehigic seah'iig, and that there was no
chance of there being a repetition of what had ha]>pened in the Southern
Ocean, except by raids on the ishinds. It was either want of informa-
tion, I say, or forgetfuhiess ; but if this was inaccurate information,
does it show proper care? They say:
In short, if wo do not wish the history of the fur-seal in Behring Sea to be a
repetition of that of the rookeries of the southern Ocean and of other localities
where seals once nourished, measures adequate to the existing evil, heroic, if need
he, must be adopted.
And then they repeat what must have been told by others about the
rookeries of the south seas. Now we know perfectly well how those
rookeries were destroyed, and we know there is no possibility of there
being a repetition of what had happened there, in the case of the
Pribilof l-slands. Then they say at page 378 :
It may be worth while to add that the suggestion has been made that the decrease
in the number of seals is due to piratical raids upon the islands themselves during
the breeding se.ason.
While it IS un<iuestionably true that such raids have occasionally occurred during
the past and that some skins have been obtained in that way, the number of these
is so trifling in comparison with the annual pelagic catch as not to affect in any way
the question under consideration. It is also difficult for one familiar with the
rookeries and the habits of the seal to conceive of a raid being made without its
becoming known to the officers in charge of the operations upon the islands. The
"raid theory", therefore may be dismissed as unworthy, in our judgment, of serious
consideration.
I do not desire to accejit that as anything but the best judgment
they could form, and an honest judgment, but 1 say the judgment is of
very little value unless it is supported by evidence, and unless the
evidence is produced; because our Commissioners coming to a contrary
conclusion have produced before the Tribunal the evidence upon which
they found it, and unless that evidence is displaced it entirely supports
such conclusion. Whether it is right or wrong I am not here to say,
nor does it make any difference. I am not discussing it in that light
just now. It was read to the Tribunal yesterday, and they will form
their judgment upon it.
That is the nature then, of the Report of the United States Com-
missioners. And I ask, am I not justified in saying simply, that upon
subjects which are still in doubt — upon subjects which nobody can
sjieak of as positively known — upon subjects, I will say, as to which
the weight of evidence is on some of them at least the other way —
they have adopted positive conclusicms every one of which is in favor
of the contentions of their own country'? Now I do not charge them
witli bias, I do not charge them with being blinded by ])rejudice, but I
say we have least as good a right to charge them and as strong evidence
to found such a charge upon as exists for charge made by my learned
friends against our Commissioners. I am very glad then that we have
abstained from any such charge against gentlemen whom we believe
to be entitled to respect. In the same way of Mr. Stanley Brown I will
only say I have not a shadow of doubt that Mr. Stanley Brown went there,
observed to the best of his ability, and reported to the best of his
judgment. But 1 have equally no doubt that upon some subjects it is
impossible (if evidence is to carry any weight whatever), for his con-
clusions to be adopted. Mr. Stanley Brown, for instance says, upon
the question of coition at sea, he believes it to be impossible. As a
matter of fact we have the evidence of 38 witnesses who speak of it
from actual observation under circumstances which make it impossible
ORAL ARGUMENT OF CHRISTOPHER ROBINSON, Q. C. 301
that they could liave been mistaken. 1 do not charge Mr. Stanley
Brown, under those circumstances, with having a bias, or anything
else — I simjdy say he has made a mistake.
If the Tribunal desires the reference to that evidence, it is in A])pen-
dix II of the British Counter Case, page 33, where the names of all the
38 witnesses, and the images at which their Aftidavits are to be found,
are all given. And we find that Mr. Mclntyre also thinks the thing
impossible; and another gentleman, Mr. Morton I tliink, also says he
believes it to be impossible. All I have to say is, it is absolutely
imi)Ossible, now, to read the evidence on that subject and entertain
such a belief unless you can come to the conclusion that all these
witnesses — 38 in number — were either mistaken iu what they profess
to have seen with their own eyes, or for some reason did not state
the truth. In the same way I may mention another subject upon
which Mr. Stanley Brown expresses a positive opinion. 1 mention
it because to my own apprehension, apart from having heard any-
thing about it, it seems beyond question. I believe any one wonld
have said — and would consider now, in view of what has been said
about it by either side, that the assertion of the females and others
ffcding at sea when living on the rookeries is absolutely incomprehen-
sible. I refer to a letter which is to be found in the Appendix to the
Sui)plementary Eeport, from Mr. Bartlett of the Zoological Gardens. I
make no apology for this, because I do not understand that what is to
be found in the Supplementary Keport, though it may be practically
oidy a statement of some Natural History matter — the habits of Deer
and so on, which you can read for yourselves anywhere — is not that sort
of knowledge which my friends in another part of their case have
described as "Barn-Yard knowledge," and, in another place, as knowl-
edge which it is plain every intelligent man can acquire and make use
of for himself. Mr. Bartlett tells us that the excrement of tiiese ani-
mals is similar to that of dogs. Xow we know as a fact that it is abso-
lutely impossible to keep, any where, twenty dogs in one place for a fort-
night without making the place intolerable.
There must have been 100,000 seals living on an island not of an
absorbent soil, to say the least — I do not think it would make any dif-
ference whether it was or not. Is it conceivable to any one that these
seals were feeding regularly? Is the thing possible? One knows from
general experience and actual knowledge that with the smallest bird
even it is customary to follow them by such sigus. You cannot, if pass-
ing through a sheep field where they have been kept for a few days or
a fortnight, pass through it without knowing they have been there.
You cannot go through a field where there have been a number of rab-
bits without seeing that they hnve been there beyond doubt. Is there
any possibility of conceiving, if these seals are properly described by
Mr. Bartley — and there is no reason to doubt his statement in that
respect, seeing who he is and where it comes from — is it possible for
any man to conceive they do feed? If they do feed, I submit to any
uni)rejudiced judgment from any point of view, that it must be a matter
of common observation and ordinary common knowledge. The only
explanation of what is known to be the fact it seems to me must be that
they do not take in the food which otherwise you would find signs of
beyond all question on the place where they were living, huddling
together in thousands, tens of thousands, if not hundreds of thousands.
So much then for our Commissioners. We make no charge ourselves,
and regret tliat our friends have felt it their dnty to malce charges of
this sort, which it is no use minimising, which it is no use mitigating.
302 ORAL ARGUMENT OF CHRISTOPHER ROBINSON, Q. C.
which it is no use trying to explain. If true, they are discreditable and
disgraceiul to the men against whom my learned friends have brought
them; and of tliose charges I will only say that Avhile there is no rea-
sonable ground for suggesting them on either side, there is at least as
much on our side as on that of tlie United States.
Then I proceed to the question of IkCgulations, speaking of it gener-
ally, and I do not propose to go into the matter in detail. I desire to
make a few general observations on the subject of Eegulations as regards
their extent — by which I mean their area — their purpose, and their
character.
In the first place, as regards the extent of the Eegulations, this in
our apprehension is a very imi)()rtaut subject, which has been discussed,
and our position indicated, but which perhaps may bear a few more
words being said upon it. Now in the tirst place (and it is well to get
rid of any charges of that sort at tirst) — my friend Mr. Carter has
indicated at all events, if he lias not expressly said, that the taking of
such a position indicates want of sincerity on the part of Great Britain.
It is better always, to meet charges of that sort at once, and to
express exactly the A'iew which you take when such a charge is made.
We have no hesitation — no doubt — no difticulty — in taking that posi-
tion, becau.'^e from beginning to end, at all times, and now, we have
been and are perfectly ready to join with the United States in any
reasonable Convention, not to be d( cided by ourselves but to be decided
impartially, which will ensure the preservation of the fur-seal in all
parts of the world — where they can be found I mean, I am speaking of
the Alaskan herd of course — having due regard to the interests involved
on the Islands, in Behring Sea, and in the Xorth Pacific Ocean. Our
friends have never claimed, and never attempted to exercise any exclu-
sive rights south of the Aleutian Islands, any more than we have
claimed or would have liad a right to claim in any way exclusive rights
or any rights whatever on their islands; and so long as they say:
We will manage our islands just as we please — we will allow you no
voice — no say whatever, in that matter. We will kill as much as we
please, in such a manner as we please, in such numbers as we please,
and not allow you to have any voice.
We answer:
There is no reason in equity or fairness then why You should have
any exclusive right in the sea south of the Aleutian Islands. You have
never claimed and never have pretended to exercise there any exclusive
right whatever. When you are Avilling to submit the whole question to
any reasonable arrangement we are, and always have been, perfectly
ready to meet it. Our view about the protection of the lur-seals, is
founded on the Eeport of the Commissioners, which we ourselves believe.
We admit that for the protection of the fur seals efficiently there must
be Eegulations on the Islands, in Behring Sea, and in the North Pacific
Ocean. They never will be sufficiently protected, and the whole subject
never will be efliciently dealt with, until some such arrangement is
come to, and we are ready to make it.
I adopt entirely, so far as my own view is concerned, what I will refer
to hereafter — the opinion of Professor Huxley, to which my fi lends seem
to attribute some weight on that subject. W^e think his opinion is
reasonable.
The President. — Do you think we are competent under the Treaty,
to make such Eegulations'?
Mr. EoEiNSON. — No, I am not saying that — perhaps you have not
quite followed me in the other instance where we think you are not com-
ORAL ARGUMENT OF CHRISTOPHER ROBINSON, Q.. 0. 303
petent. We know you are not competent to make Eegulations on the
Islands, and we submit yon are not competent to make liegnlations out-
side Bebring- Sea — that is all I say.
The President. — You think we cannot do good work?
Mr. Robinson. — I do not think you can do efficient and full work — I
hoi)e I shall not be misunderstood in that. I do not think your powers
are sufficient to enable you to frame Kegulations for the efficient pro-
tection of the seal race. In our judgment that would require Regu-
lations on the Islands; in Behring Sea; and in the North Pacific Ocean.
The President. — I am satisfied that you have stated it distinctly.
]Mr. Robinson. — I understand — and I wis!) to have no misapprehen-
sion— that whenever one side or another is charged with insincerity, it
at least becomes them to be sincere in stating the view they take of the
position they assume; and I hope, Mr. President, you understand me
in regard to that.
We are ]>erfectly willing to concur in the only Regulations which we
believe will ensure the object which both sides have at heart,and wiiich
ought to be carried out; but so long as on the part of the United States
they say :
''We are going to enter into no such agreement — we are goiu^ to
allow you no voice in the place where you think some Regulations are
perhaps most essential."
Then we say :
" We shall confine you, in the Regulations you are imposing upon us,
to the words of the Treaty."
Now the first consideration that comes before us is naturally, and of
course, the consideration of the words of the Treaty. I have heard it
said that if you take the words of the Treaty by themselves it is difficult
to argue that they do not authorize Regulations extending any where.
Of course I am speaking altogether of clause 7. I ought to have said
in commencing this argument, that I think our aigument upon this
subject, namely uj^on the area of Regulations, is largely connected with
the argument as to the area of the claim of Property Rights. The
learned Attorney General has argued that, and you Avill find his argu-
ment in the Shorthand Writer's notes, pages 944 to 904. I am not going
to return to that, or touch upon it, more than to give the Tribunal the
reference to it. If that argument was not powerlul and convincing to
the minds of the Tribunal, it would be presumption in me to attempt
to strengthen it or add to it. I have no thought of doing anything of
the kind, but I proceed on the assumption that the learned Attorney
General has made out his position, that the area of the claim of rights
in Question 5 is limited in its extent to Behring Sea; and I propose,
now, to say a word about the area of Regulations. I shall have to come
back perhaps to one point which it may be as well to call the attention
of the Tribunal to at this moment. You will remember. Sir, that in the
Argument of the United States upon that Question 5 they take this
X)Osition. They say — and for the first time they say as far as we know
in the course of these discussions — for the first time they say in their
printed Argument that they are entitled to Regulations in addition to
protection. Y''ou no doubt understand what I mean. In the beginning,
and from the beginning, the claim was Rights or Regulations— in other
words, they have said:
'••We claim to own these seals in Behring Sea, or to protect them in
Behring Sea; and we say, if we have not either this Right or the Right
of Protection, then you should agree with us in making some Regula-
tions which will supply its place."
304 ORAL ARGUMENT OF CHRISTOPHER ROBINSON, Q. C.
That was the position they took, as I shall be able to shew you in a
few moments. Kow they say in their argument:
We are entitled to Regulations even if you give us the property
rights or the right of i)rotectiou, for the right of i)rotection Avhich you
may give us, or the right of property which you find to be in us, may
not be sufficient to enable us efticiently to i)rotect the seals, and there-
fore you must add to Award o± Property or Property rights some Regu-
lations which will enable us to protect,them efficiently.
Now that, so far as we know, is an entirely new argument, advanced
for the first time in the United States written Argument; and not only
that, but we think that the opinion of both parties up to that time has
been expressed in a directly opposite sense — that is to say, that the
claim was to Regulations in substitution for rights. Our understand-
ing always was : If you own these seals or if you have a right of pro-
tection of these seals, that will be suificient for you; yon cannot want
Regulations in addition to that; and we never tliought they were claim-
ing such Regulations. Now let me see whether I have ground or not
for saying that we were justified in that belief!
In other words, to put it differently, we had always thought that
those words, "the determination of the foregoing questions as to the
exclusive jurisdiction of the United States being such as to require the
establishment of regulations", meant the determination of those ques-
tions in favor of Great Britain. That was the idea that we had. '• It
the determination of the foregoing questions as to tlie exclusive juris-
diction of the United States is necessary to the establishment of Regu-
lations" we believed was never intended to mean anything else, and
was never thought to mean anything else, until the time I have spokeu
of, than the determination of those questions in favor of Great Britain.
Let me see whether that was not also the understanding of the i)ar-
ties. In the first place, I find a letter from Lord Salisbury of the 21st
of February 1891. I have not taken tlie reference to that, which I
ought to have done. However, it is of no consequence, I have written
down what he said. I can find the reference in a moment.
Mr. Justice Harlan. — It is in the United States, Appendix, Volume
I, page 290,
Mr. Robinson. — I may just as well take it from that, though I have
the reference in another place. I read from page 294, the last paragraph
but one from the bottom. Lord Salisbury there says.
The sixth question, which deals with the issues that will arise in case the con-
troversy should be decided ia favor of Great Britain, would perhaps more fitly form
the substance of a separate reference.
The sixth question then, as you know, has now become article VII.
When these questions were originally proposed by Mr. Blaine, they
were in the form of six questions, and what was then the sixth question
is now Article VII.
So there was Lord Salisbury writing to Sir Julian Pauncefote, asking
him to read that dispatch to Mr. Blaine, and putting this construction
upon that sixth question, which is the construction 1 have indicated.
Then I find that that construction is repeated by Lord Salisbury in
his instructions to the British Commissioners, wliicii are dated the loth
of January, 1892, at page VII of the iireliminary pages to the British
Commissioners' Report. There he says:
The Regulations which the Commissioners may recommend for adoption within the
respective jurisdictions of the two countries, will of course be mntter for the con-
sideration of tlie respcftive govcninieiits, \v]iil(; tlio licgulatiiiiis aiiecting waters
outside the territorial limits will have to be considered under clause six of the
ORAL ARGUMENT OF CHRISTOPHER ROBINSON, Q. C. 305
Arbitration AgTeeraent, in the event of a decision being given by the Arbitrators
against the claim of exclusive jurisdiction put forward on behalf of the United
States.
There was Lord Salisbury a^-aiii repeatiug in liis instnictioiis to the
Commissioners that meauinf;- and that construction wliich he liad always
put and which we have always put upou that section. I do not find
that anywhere on the part of the United States that construction has
ever been questioned. On the contrary, I find it, as I understand,
ado]»ted by Mr. Wharton in the United States Ajipeudix Volume I,
page 358, near the foot of the page, where he says:
In your note of February 29, you state that Her Majesty's Government has been
informed by tlie British Commissioners that so far as pelagic sealing is concerned
there is no danger of serious diminution of the fur-seal sjiecies as a consequence of
this year's hunting, and upon this ground Lord Salisbury places his refusal to renew
the modus of last year. His Lordship seems to assume a determination of the Arbi-
tration against the United States and in favor of Great Britain, and that it is already
only a question of so regulating a common right to take seals as to preserve the
species.
Is not that a plain intimation by Mr. Wharton that he adopts pre-
cisely the same view? He says his lordship in taking that view seems
to assume a determination of the Arbitration against the United States
and in favor of Great Britain — that is, on the question of rights — and
that it is already only a question of so regulating a common right to
take seals as to preserve the species.
Of course there could be no question of common right until the
exclusive rights had been decided against the United States and in
favor of Great Britain. We say that the view which we have always
taken is consistent not only with the words but with the avowed inten-
tion of the parties so far as we can gather it otherwise. " My learned
friend also points me to the conclusion of the Case of the United States,
at page 303, where they seem to take the same view, and perhai)s more
strongly, because it is in a more considered document than any other I
have referred to:
Second. That should it be considered that the United States have not the full
property or property interest asserted by tliem, it be then declared and decreed to
be the international duty of Great Britain to concur with the United States in the
adoption and enforcement against the citizens of either nation of such regulations,
to be designed and prescribed by the high Tribunal, as will effectually prohibit and
prevent the capture anywhere upon the high seas of any seals belonging to the said
herd.
Is not this again their own statement of that as the construction
which they at that time took to be the construction and meaning of
that clause, that if the decision was in favor of Great Britain and
against the United States, then they claimed regulations; but never so
far as we know, until their written argument, has there been a claim of
regulations in addition to the claim of right, either of property or of pro-
tection, which they set out in the fifth clause.
Then we come a little nearer the question as to the construction of
the treaty itself Of course it is always to be remembered — and I am
sure 1 need not cite anything in the shape of authority for a mere state-
ment of law of that sort — that every document, treaty, agreement or
statute, is to be construed with reference to all the surrounding circum-
stances, which include the circumstances out of which the treaty arose,
and the subject-matter with which the treaty deals. Our books are full
of cases in which words absolutely comprehensive, absolutely includ-
ing everything, are nevertheless restricted to certain subject matter,
because they are found in such a context as to show plainly that that
was the only thing that could have been intended when the words were
B s, PT XIV 20
306 ORAL ARGUMENT OF CHRISTOPHER ROBINSON, Q. C.
used. To those who are accustomed to the law of England, there are
many very ordinary cases of that sort that could well be referred to.
I remember one for example, merely as an illustration, where, if I recol-
lect rightly, it was said that in au act of Parliament certain assign-
ments under certain circumstances should be held to be uull and void
to all intents and purposes whatever. It could not use a stronger
expression to avoid a document under any circumstances and in any
case; but that being under an insolvent act it was held, of course, that
it was only made void against an assignee in solvency. That is merely
an ilhistration of the elementary doctrine in law, that you must always
construe the words of a statute in relation to the circumstances out of
which the Act arises, aud the subject matter with which it deals,
always i)roviding of course that this must be a possible aud reasonable
construction.
Now then, bearing that in view, let us see what is the fair construc-
tion of these words:
If the determination of the foregoing questions shall leave the subject in snch
condition that the concurrence of Great Britain is necessary to regulations for the
proper protection and i)reservation of the fur-seal in or habitually resorting to the
Behring Sea.
First does that mean, by any fair construction, tlie fur-seal which are
in or which habitually resort to the Behring Sea, no matter where tliey
may be found : — that if you find a fur-seal a thousand miles south of
Behring Sea, but which fur-seal for certain months of every year goes
to Behring Sea, it is to be within those regulations and that regulations
are to be protect it there'? Let me put what might be au analogous
instance.
Supposing it was said that regulations should be framed for the i^ro-
tection of the safety and health of people living in or habitually resort-
ing to a certain city, say Paris, if you like. Would anybody say that
if you found a person at the other end of the world, in Egy]^t, for
instance, who spent three months of every year in Paris, that those reg-
ulations were to provide for his safety and comfort in Egypt, because he
was a person who habitually resorted to Paris'? And that is precisely
the case of the fur seals. Does it not reasonably mean when they are
habitually resorting, and at the time that they are so resorting? And
is it possible that such words can be used, is it not startling to hear
that they are intended to be used, to protect seals which habitually
resort to Behring Sea, no matter where they may be found, in any part
of the world, at any time of the year? And is such an analogy as I
have presented a forced analogy, is it not a reasonable analogy?
The answer would be: No; what we mean is people who either live
there all the year or who are found there at certain periods of the year.
When they are fouud there we have to protect them by lu^oper regula-
tions and by proper enactments, but we have uot to follow tliem all
over the earth and protect them wlierever they may be found, at any
distance or at any time of the year, because for a certain period of the
year they resoit to the area wliich they are said to resort to and in con-
nection witli which the regulations are to be made, and as to which, my
learned friend says, the discussion has arisen.
Our view, we think, is strengthened, at all events, by considering
the course of this discussion. What was it that the United States had
been attempting to do before that"? What area had they been attempt-
ing to police? They had been attempting to police Behring Sea. Tliey
had never attempted to police any other waters, or to extend their
jurisdiction for the protection of the seals, or exclusive jurisdiction,
ORAL ARGUMENT OF CHRISTOPHER ROBINSON, Q. C. 307
over any other waters. Is it possible that this article was intended to
provide, without the slightest limit, for every other water in the world,
when you recollect how the provision is made, and as a substitution for
what rights it was intended to be used'?
Then again, if the construction is to be as my learned friends con-
tend, you are met with this difficulty. Outside of Behring Sea, if we
are right, it is imi)ossible to say whether the seals you meet with are
seals which habitually resort to this side of Behring Sea or the other.
No question, so far as I have observed, has ever arisen between us with
regard to the fur seals in any part of Behring Sea except that eastern
part the jurisdiction of which has been transierred to the United
States. There never has been a question between us as to the other
part. Kobody will pretend that they ever claimed any special right of
protection for the seals which resoit to the Commander Islands.
It has never been thought of and never spoken of. When you get
south of the Aleutian Islands and you find a seal — I am not going back
into details or into eviden(;e — but it our evidence is to be believed it is
impossible to say whether that is or is not a seal which habitually
resorts to the Pribilof Islands. He habitually resorts to the Pribilof
Islands or to the Commander Islands, or it may be some other place.
He may go to the Commander Islands or he may go to the Pribilof
Islands. He may go to them one year or another, or may be not for
two or three years. As we all know, there are some seals which do not
go there from their first year to their tliird. Is the construction claimed
a reasonable one"? Was it ever intended to claim regulations which
would impose upon us the duty of protecting seals coming from the
western part of Behring Sea and resorting to the Commander Islands!
If not, it is impossible, as we submit, under the evidence, to extend those
regulations beyond Behring Sea without imposing upon us that duty.
Again, I think there are other considerations, and strong considera-
tions I venture to submit, which tend to support the same construction.
The treaty reads ''If the determination of the foregoing questions as
to the exclusive jurisdiction of the United States shall leave the sub-
ject in such position that the concurrence of Great Britain is necessary
to the establishment of Regulations". Therefore that seems to imply
that the questions of right may be so decided that the concurrence of
Great Britain shall not be necessary. But outside of Behring Sea the
concurrence of Great Britain always was and must be necessary. There
nevei- has been a pretence of anything else. Inside of Behring Sea the
United States claim that they have exclusive jurisdiction, and that they
could act without the concurrence of Great Britain, but outside of Beh-
ring Sea no such claim has ever been advanced. That hypothesis there-
fore could have no application in the mind of the person who framed
those questions at the time they were framed, and it could have no
ap])lication, and no intended application, to anything but Behring Sea,
because it is only if the concuri'cnce of Great Britain is necessary that
regulations shall be made. But there was no "if" about it outside of
Behring Sea. That hypothesis and that "if" and that condition was
utterly meaningless and useless and inapplicable as regards anything
but Behring Sea; for there never was any question of being able to
make regulations outside without the concurrence of Great Britain.
It was no,t "if" the concurrence was necessary, but as a matter of fact
her concurrence under all circnmstances was necessary.
Now then what is the reasonable construction of those words, look-
ing back, as I am always looking back, at the history of this thing
from the beginning, connected as it is with and confined to the area of
308 ORAL ARGUMENT OF CHRISTOPHER ROBINSON, Q. C.
Behring Sea. To my apprebensiou there is perhaps a stronger argn-
uieiit than all; bnt all these arguments present tliemselves in ditt'ercnt
lights to diiferent minds. If the learned Attorney General is right in
the confinement of the area of rights to Behring Sea, then the result
of the construction of our friends is tiiat we should be worse off if we
succeeded in all our contentious as to rights than if we failed. Could
that have been intended? If the claim in question 5 is confiued to
Behring Sea then if we fail as regards that there would be no regula-
tions at all, because they would liave got all the rights they claim.
But they say, " If Great Britain succeeds as to that, and we have got
no rights, then we can get regulations all over the world". It is much
better for us that we should fail and they should succeed. Is that a
reasonable construction'? These are all considerations arising upon
the construction of the words.
Senator Morgan. — It seems to me, Mr. Eobinson, that would depend
upon whether the purpose was to preserve the seals or whether the
purpose was to destroy them.
Mr. Robinson. — I am perfectly willing to admit that the j^urpose was
not to destroy them. 1 here is no question about that; but, with great
deference, I cannot understand how that can affect the construction of
the treaty.
Senator Morgan. — If the purpose is to preserve the seal, you would
not be any worse off' by doing it, would you?
Mr. KoBiNSON. — I do not know. Does that affect the construction of
the Treaty? If what you mean to say is that the construction of this
treaty necessarily gives the right to do everything for the purpose
indicated, then that is simply deciding the question in advance, so to
speak. I am not here to say that we would be better or worse off by
destroying those seals than by saving them. I am simijlyhere to dis-
cuss whether the regulations to be imposed upon us as compulsory shall
extend beyond a certain area. This is a very serious question. It is
one thing for a nation to agree by convention and of her own free will
that regulations shall extend over a certain area. It is another thing
altogether to have those regulations imposed upon her against her will
by another power. We are quite willing to meet together and to agree,
if we can, or to leave it to other persons to arrange reasonable regula-
tions for the whole area where we think regulations are needed; but it
is one thing to do that and another thing to have regulations irai^osed
upon you by a Tribunal, without your consent, the observance of which
would involve an enormous expenditure and enormous difficulty, and I
might say in regard to tile proposition of my learned friends, almost
insuperaljle difficulty, whether you like it or whether you do not.
Therefore we present all those considerations, and to my apprehension
the last one is perhaps the strongest, for it is founded on reason. Can
the parties have meant, when these questions of right were the real
substantial matters that had to be decided between the parties — can it
be contended that the power which failed on those questions should be
worse off" than if she had succeeded? If that was the purpose, what
was the ob^ct of submitting those questions? It would have been far
better that we should lose on the questions of right.
So much for that question.
The Tribunal here adjourned for a short time.
Mr. Robinson. — Mr. President, Mr. Senator Morgan asked a question
as to the time of vessels going to Behring Sea, and I may say that if
you refer to the third volume of tlie A])i)endix to the Britisli Case, page
'6iiS, you will find all the particulars about that. I need not delay you
ORAL AEGUMENT OF CHRISTOPHER ROBINSON, Q. C. 309
to read them now, but everythiDg: connected with the sealing industry
and its progress is there referred to. You will find in the House Exec-
utive Documents n° 177, 40th Congress, 2nd session, vol. 13, page 255,
the beginning of the cod lishing in that sea:
Two or three small schooners sailed from Victoria and made fair catch, so much so
that the importation of cod into British Columbia has ceased.
That was in 186(3.
Then you will recollect, Mr. Senator Morgan, you asked me a ques-
tion yesterday about the movements of tlie holluscliikie, and their either
going through the other seals or ranging in the rear; and 1 have taken
the trouble, as a matter of interest more than anything else, to look
into it. If you desire to pursue that, you will find it in Mr. Allen's
Monograph on North xVmerican Pinnipeds at page 393; and next, in
Mr. Elliott's book, commonly called the Census Keport, page 43. The
result is that it seems to vary very much in dilierent rookeries, and
their habits are very peculiar.
in some rookeries they have been by common consent allowed a lane,
so that they jiass up the middle, and if they keep to that they are left
alone, but if they diverge a loot from it they are torn to pieces. In
others they are not allowed the concession of a lane, and are forced
then to go all the way round and haul uid in other places. That is the
substance of it, and their habits seem very strange and peculiar in that
respect.
Senator Morgan. — I gathered from my view of the evidence that the
seal family had some strict regulations like the bees for the different
grades, the ])ups, the holluschikies, the males, the females and the old
males. It w iss that that prompted me to ask the question.
Mr. RoBLNsoN, — Yes, it is interesting to look into. They ai-e allowed
the lanes and if they go up the lanes they are left alone; but if they
stray they are torn to pieces by the owners of the place they intrude
upon.
Senator Morgan. — The point of my question was, whether the seals
separated themselves from each other in classes while on the land, so as
to provide an opportunity for their being taken in one class without
the disturbance of another.
Mr. KoBiNSON. — Of course, I was not aware of the point you were
directing your question to. I have only given you information upon
the subject to the extent I have been able to find it.
Then there was a question that the President asked as to the increase
of the sealing fleet alter tlie moduH. I have a little memorandum of
how that happened. You must remember that the sealing schooners
always clear between January and April, and the modus for the season
of 1891 was not signed till the 14th June — that is in our Appendix, vol-
ume 3, No. 3, page 18. By that time of course and before the modus was
signed all vessels would have cleared, and there were 48 vessels of the
United States and 50 for British Columbia making 98. In 1892 there
was no modus exi)ected, and on the 18th March Lord Salisbury had
objected, as you will find in the Ap])endix n" 3, volume 3, to the British
Case, page 160, but on the 18th April the modus was signed for two
seasons.
None having been expected the sealing fleet increased that year, that
is to say, 46 United States cleared and 65 British Columbia making 111.
On the 18th April the modus was signed for two seasons, and the moment
that was agreed upon the fleet fell off. In 1893 the fleet was United
States 24 and British Columbia 55.
310 ORAL ARGUMENT OF CHRISTOPHER ROBINSON, Q. C.
General Foster.— In 1893?
Mr. Robinson. — Yes.
Mr. Carter. — Where is the evidence of that?
Mr. Robinson. — If you ask me how it is ascertained I cannot tell
you, but I can ascertain for you.
The President. — Do you consider that that is not evidence Mr.
Carter?
Mr. Carter. — We want to see where it appears and what papers
show it.
General Foster, — Because it is not possible yet to tell what it is.
Mr. Robinson. — They tell me that
55 sealers cleared from British Colnnibia, 25 British, to Asiatic side, all sailed, 24
from American i^orts half to Asiatic Milne.
That is the gentleman from whom the information comes.
Mr. Carter. — Well we object to that as evidence of the sealing fleet
of 1893.
Mr. Robinson. — Then let it be withdrawn, because I do not care
about it.
Mr. Carter. — Then I wish that Mr. Robinson would not read what
he docs not intend to be evidence.
Mr. Robinson. — I thought I was giving Mr. Senator Morgan some
information that he asked for. If there is any sort of objection to it
let it be withdrawn.
General Foster. — The objection is that we cannot tell at this time
what the sealing fleet will be for this year.
Mr. Robinson. — I can tell you no more. I was not giving it with
any view of that sort one way or the other. It had better be consid-
ered not to have been mentioned.
The President. — It has no bearing upon the question.
Mr. Robinson. — Ko.
Then I have spoken of the question of area of these Regulations. I
have only to add to that what you will all remember, and what must
not be lost sight of in considering any such question as this, that the
Treaty only relates to and is concerned with the questions that have
arisen^ and no questions had arisen except with regard to Behring
Sea. All that has a strong bearing on the construction of the Treaty.
Further, with regard to the construction which I have put upon it, that
it relates only to seals while they are frequenting Behring Sea, and to
the protection of seals while so frequenting that water, I can quite
fancy that, if it were necessary, it might be right and within the power
of the Tribunal to give a certain zone around Behring Sea itself, if you
understand what I mean, and the passes. Suppose it was a question
of making regulations to protect wild animals in a certain field, if it
were necessary for their protection while in the field that persons should
not come within a certain distance of the field — I do not care what —
I should think that that was included in the power to make regulations
for i)rotecting the animals while in the field, nanu^ly, you must not dis-
turb them or annoy them, and they may stray and be killed outside the
limits; and therefore you may give a zone outside that aiea; but my
contention is, that the subject matter, the protection with which the
Regulations are to be concerned, is the seal race while they are fre-
quenting Behring Sea. That is the essential purport of it. Then, if
so, there are these three circumstances, at least, which, in our point of
view, are most material circumstances, which are all presented as diffi-
culties to the oj)posite construction. In the first ])lace, we say, that
ORAL ARGUMENT OF CHRISTOPHER ROBINSON, Q. C. 311
that hypothesis, namely if the concurrence of Great Britain slionld be
necessary, is meaningless and useless, except as applied to Behring Sea,
it has no application and could not be intended. In the next place, we
have this singular peculiarity: here are two persons, parties or Powers,
differing and claiming certain rights — and claiming, in the event of
those rights, which is the substantial thing, being denied to them and
found not to belong to them, certain Regidations. We have the fact,
that it is claimed, as the fair construction of a Treaty to settle those
rights and Eegulations, that they are better off" if they get Regulations
than if they get rights: in other words, that the Eegulations, if they
are found not to have pro])erty, may be to them much more effectual
than if they succeeded on the question of pro])erty and got it. I wish
the Tribunal to understand the tirst point that as to the concurrence;
it is that outside Behring Sea, the concurrence of Great Britain must
be necessary, there could not be an "if" about it or any hypothesis
about it; but the very way of putting this question seems to show that
the question may be so decided that the concurrence of Great Britain
is not necessary. There was not a pretence there could be regulations
outside of Behring Sea without her concurrence; and that condition
attached to the 7th clause either related to Behring Sea or meant noth-
ing, or had nothing to apply to.
1 do not know that I can put it stronger, and the last thing I desire
is, to waste time in useless repetition. It is worth while, perhaps,
without reading dccuments, because it is most material, in connection
with this question, to consider the history of that clause 7. All the
documents relating to it will be found, I think, cited in the argument
of the Attorney General, at the ])ages I have read, and 1 have no dis-
position to read them or refer to them again ; but it is very singular to
see how the difference has arisen, between its form as first i)roi)()sed
and as it now Stands upon which difference this whole question depends,
and upon which, and upon which alone, my learned friends have any
ground to contend they can go beyond Behring Sea. If you remem-
ber, as I have no doubt you do — I have been through them so often
that I know them almost by heart — those first six questions were pro-
posed by Mr. Blaine in his well known despatch of the 17th December,
1890. The Gth question is that which has now become the Vllth Article
in the Treaty. As first proposed by him on the 17th of December it
unquestionably was confined to Behring Sea, and expressly confined to
Behring Sea. No reading of it can make it apply beyond Behring Sea,
or to any other water. It will be found to be beyond question or doubt
on looking at it. When that was sent to Lord Salisbury, while he
accepted the first and second questions, and objected to the fourth and
fifth on other grounds which are quite immaterial here, he objected to
the sixth question. His ground then simply was that it would more
properly form the subject of a separate reference, but he did not object
to it on any other ground at that time. Mr. Blaine on the 14th April,
1891, said that as Lord Salisbury objected not to the form of the ques-
tion, but simply to the mode of i)rocedure, that he had no objection to
its form, and that it was accepted, and he repeated it again in the same
form. All those letters are to be found following each other. The first
I have stated is in the same volume of the Appendix to the United
States Case, volume I, page 28G. Then at pages 290 and 294, when
Lord Salisbury objected to it on that ground, it was proposed again by
Mr. Blaine on the 14th Ajtril 1891, at page 295. Then, curiously enough,
it was left from April until June, and in June you will fiad that Mr.
312 ORAL ARGUMENT OF CHRISTOPHER ROBINSON, Q. C.
Wharton proposed it in its present form, saying lie was directed by tlie
President to propose it in that form, and he thought it woukl remove
Lord Salisbury's objection.
Now the objection Lord Salisbury had taken was, and was only, that
that question seemed to attribute some abnormal rights to the United
States arising out of Bussian claims, which he said it ought not to do;
but instead of altering it only to meet that objection, it was in other
respects altered, and for the tirst time these words, "inlor habitually
resorting to Behring Sea" were introduced, which for the first time,
gave ground for the contention that the regulations were intended to
extend beyond Behring Sea. Why that was done I do not know
exactly. I have gone through it with the greatest care, and can only
point out this to the Tribunal — it would take too long to go into it
minutely again, but it has arisen in this way. There were negotiations
going on together for three different things; first, for the settlement of
the questions to be referred, all of which had been settled except ques-
tion 6. Then, a negotiation going on for a modus; and at the sauie time
negotiations for the appointment of a comniission. What you find is
that these three negotiations were all going on together from about
April, 1891, and if you trace, as I have done, the course which those
negotiations took, and trace the various letters which were written in
the course of them, these changes would seem to have arisen from let-
ters written in May 1891. Perhaj^s, if 1 give you the i)ages of the book,
without either reading them myself or troubling you to read them now,
those who desire to follow this liistory, so to speak, and the genesis of
this clause, will be able to do so without difficulty, and to jmrsue an
enquiry which can only be pursued by reading these things and spell-
ing them out for yourselves. The pages are 305 and 319, and if you
look at our Appendix Volume 3, number 3, 1892, page 52, you will see
what is not to be found in the United States volume, and the only
thing which is not to be found there — the acceptance by Lord Salis-
bury, on the 0th July, of this question in the form in which it was pro-
posed by Mr. Wharton on the 25th June.
Then the other letters to which 1 refer are to be found at pages 299
of the same Volume, namely Volume I of the United States Apijendix;
and pages 302; 303; 304 and 305; 306; 307; 308; 309; 310; 311; 312;
314; 315, and 316. At those pages you will find the history of this
matter; and also at page 319. Those, I think, are the pages which will
give you the whole history of this.
Then, at page 350, are letters which I think have been already referred
to by the Attorney General in his argument. There is a great tempta-
tion to one who has spelt these out to try and explain them ; but I do
not think it can be satisfactorily explained in the course of an argument,
because it requires one to spell out these letters for oneself one after the
other and to see if from them you can arrive at the way in which this
limitation came to be made. One thing is certain; as late as the 15th
of January, 1892, in those instructions given to the Arbitrators, you
find that this agreement for a Commission was intended to be separate;
but it got into the Treaty because it was considered undesirable to have
two diifereut documents to pass through the Senate, and so they came
together.
Senator Morgan. — How is that?
Mr. Robinson. — You will find as late as the 15th of January, 1892,
this was in the form of a separate document, and the explanation given
was that it was thought uiulesirable to put two documents through the
Senate, and, therefore, they incorporated it into the Treaty. That is
ORAL ARGUMENT OF CHRISTOPHER ROBINSOIST, Q. C. 313
the history of it. 1 iiave never myself been able to ascertain for what
reason it was that that enormous change in this original was made. It
was not required to meet the objection Lord Salisbury had made; but
goes far beyond that, and gives it, according to my learned friends'
contention, a totally diflerent scope and a totally different effect. I do
not mean to say that you cannot suggest arguments about it by reading
these letters.
I think you can. I only say that I have not been able to satisfy
myself how it took place, but the pages I have given you will enable
you to trace that out, and everything I know of is to be found at those
references which will throw any light upon it.
The President. — At page 315, to which you alluded, there was a
distinct allusion to the North Pacific, both in the despatch of Sir Julian
Pauncefote and of Mr. Wharton.
Mr. Robinson. — Yes, Mr. President, quite right; there is a distinct
allusion to the North Pacific, but there were other arrangements going
on at that time for a modus, and that is where the difficulty comes in.
You see the investigation of the Commissioners was always intended
to go into the North Pacific or even all over the world, and the diffi-
culty and confusion have arisen from the three negotiations going on
together; — the negotiation for a Coinmission, which was to extend all
over the world; the negotiation for this Treaty, M'hich as we contend
was confined to Behriug Sea; and the negotiation as to a modus.
Senator Morgan. — You say "all over the world;" but you mean, I
sui)i)0.se, the North Pacific?
Mr. Robinson. — As far as the seals went.
The Ppesident. — Do not you think there was logic in putting in the
same area for both investigations?
Mr. Robinson. — I should have thought not; I should have thought
you required clear words to show that you extended the area for Regu-
lations beyond the controversy as to the right, and the best proof of
that is that Mr. Wharton says in his letters the area of the modus is
confined to the area of the controversy. He says.
We have never had a controversy beyond Beliring Sea.
The Commission was never intended in its origin, or till it got into
the Treaty in these words, to do more than to supply materials for a
Convention. It was only intended to be a guide for a Convention.
The President. — But the materials were to be fetched from the
Pacific, and, therefore, it is to be suxjposed the Convention was to apply
to the Pacific.
Mr. Robinson. — Yes; but that is another Convention, and not this.
Senator Morgan. — It seems to have been the hope of Lord Salisbury
and of the American negotiators that the Convention to which you
referred, which was substituted, rather anticipated the necessity for
the Arbitration.
j\lr. Robinson. — I think, up to a certain time, there was a great hope
there would be some sort of an Agreement to put an end to the neces-
sity for it.
The President. — Do not you think the Arbitration is an Agreement
put in another form, and confided to other persons?
Mr. Robinson. — No; I find nothing to show that the imposing of
comi)ulsory Regulations on either Power was intended to be a substi-
tute for the Commission; and the best proof of that is that the Com-
mission from beginning to end was directed to show what Regulations
were necessary not as between Great Britain and the United States,
but as between Great Britain, the United States and Russia. The
314 ORAL ARGUMENT OF CHRISTOPHER ROBINSON, Q. C.
(Jonvention was never intended for any other purpose; it was to ascer-
tain what liegulations were necessary, or what Agreement was neces-
sary, as between Great Britain and the United States and Russia, and
any other Power.
Senator Morgan. — Having first ascertained that any Regulations
were necessary.
Mr. Robinson. — I assume that of course. I never doubted that that if
no Regulations were necessary none were to be made. It appears in the
correspondence that Lord Salisbury at one time wanted a distinct under-
standing that if Regulations were not necessary they should not be
made, and Mr. Blaine said it is no use putting that in because that is
the understanding. This Commission for the purpose of assisting in
framing Regulations to be imposed compulsorily on other powers was
never thought of till it got into the Treaty in the present form. The
Treaty covered the Islands, Behring sea and North Pacitic, and the
commission was to ascertain what arrangements were necessary, not
between Great Britain and the United States, but between Great Brit-
ain, the United States and Russia, or any other Power.
Tlien I confess myself to liaving been always puzzled to ascertain
what was the meaning of Mr. Wharton's proviso, that was put in by
him, that the agreement for a Commission should be without prejudice
to the question submitted to the Arbitrators. I do not profess to know
why that was. It was suggested without explanation and accepted
without explanation. My own view is that it was probably because
the question as to rights was restricted while the Commissioners'
inquiries were not — it may have been put in for that purpose, but for
what purpose it was really put in we are absolutely left to conjecture.
Tiie President. — It might mean that the conclusion come to by the
commissioners, even if they both agreed, would not be binding upon
the Arbitrators.
Mr. Robinson. — Yes, they might be of use but not binding.
The President. — I suppose that is what it means.
Mr, Robinson, — Perhaps it meant that. I have tried to conjecture
a great many reasons for putting in a thing of which no explanation is
given.
The President. — Yes it is all surmise and conjecture, and what you
have been explaning is nothing but conjecture — ingenious conjecture,
still it is nothing but conjecture.
Mr, Robinson. — It is, and I do not pretend to say anything with con-
fidence about it, because when one man proposes a thing without
explaining it and another man accepts it without asking for an explana-
tion, it is only a question of surmise; and I have two or three different
surmises and conjectures'. One I have advanced — another you have
suggested. We cannot say what it was. I have pointed it out to you
as it strikes us in order to see what assistance can be given.
The next thing is the purpose of these Regulations, because when we
get at the purpose, if we do get at it, we get a long way towards their
proi^er scope and general character. There is no question as to the pur-
pose of the Regulations; in one respect; the purpose was to prevent
the seal race from extermination. But the question is, against what?
It was to protect the seal race from extermination against something.
It surely was not against excessive killing on the Islands or immoder-
ate killing on the Islands, or wasteful killing on the Islands. That
would be perfectly absurd, because you must recollect we are discussing
this question on the assumption of equal rights.
ORAL ARGUM?:NT of CHRISTOPHER ROBINSON, Q. C. 315
It is assured that pelagic sealing" is a lawful occupation, and that the
rights upon which they chxini to stand in consequence of its unlawful
character are found not to exist. We, in following pelagic sealing, are
following a lawful occupation. It would be absurd, and so unreasonable
as not to bear argument at all, to say that that riglit is to be abolislied
in order to enable those who own the Islands to kill wastefully on the
Islands. It cannot be to ])roteetthe seal race against their immoderate
or excessive kilhng — that is plain. What then can it he.l It cannot
be predicated upon anything except upon a reasonable exercise of their
rights upon the Islands. That is demonstrable to my ap])rehension as
a mathematical proposition. If my learned friends are right in saying:
" You have nothing to say as to the Islands at all, with regard to our
management or the number we kill.
That is none of your business"; — if they are right in that, and if they
are entitled to say.
"We will kill on the Islands every seal the whole race can spare
stand." Then there was no obje(;t in this Arbitration, because pelagic
sealing must be abolished — that is ])lain. It is not a question of argu-
ment— there is no denying it. If that be so the two Powers that have
come together to ask you to make Eegulations did not know what they
were about, for there were not any Regulations to consider ex hypothesi.
If they are entitled to kill every seal that can be spared ujion the
Islands, there is only one Kegulation that will put a stop to the Eventual
extermination, and that is to say that no one else shall kill any.
It is i^erfectly unreasonable to suppose that that could have been the
regulation intended if pelagic sealing be a lawful occup;.tion and we
are exercising a lawful right. You understand I hope what I mean by
that. I do not wish to reiterate or repeat it, but sometimes if you put
proi)Ositions in a short way they are not clearly appreciated by those
to whom they are addressed, and I should be therefore much obliged to
the Tribunal if they would say that they do not think I have made any
particular point clear. I know what I have in my own mind — I know
wdiat I mean without thinking much of it — but sometimes another mind
does not understand what is meant when it is suggested perhaps in a
way that has not appeared to that mind before. But this is clear
beyond all doubt or question. If they are entitled to say, as they do
say in fact — "what we do on the Islands and the number of seals that
we kill on the islands is none of your business, self-interest will guide
us in that" — self-interest will prompt them to take every seal of the
herd that can be spared in their belief. If they are entitled to do this
there is no question of regulations; every seal killed after that tends so
far to extermination — that is to say, that is more than should be killed,
und, of course, every other killing ought to be put down.
Now on the assumption of equal rights, the suggestion of this proposi-
tion seems to answer it. You are to try and make such regulations as seem
to you to be reasonable and proper upon the hypothesis and assumption
of equal rights. The regulations which they contend for are simply regu-
lations to enable their right to prevail wholly over all other rights, which
can never be right — and to enable their right to prevail over others
w^hether they exercise their right reasonably or excessively. There can
be no sense in that. We are just as well without the right, if our right
is to be wholly subordinate to the right of others, and to be abolished
to enable them to exercise their right to the utmost. We had better
not have had it, and we should have been saved all the trouble and
expense of this reference. Our object in coming to the Tribunal is to
contrive reasonable regulations for the exercise of our mutual rights,
^IQ ORAL ARGUMENT OF CHRISTOPHER R0BIN80N, Q. C.
but, according to our friends' case the only regulation admissible istlie
one they suggest.
The President. — We are supposed to be dealing with them as rea-
sonable persons who li a ve conducted themselves reasonably to take care
of the husbandry. If they do not, you would want Eegulations for the
husbandry.
Mr. EoiJiNSON. — That must be obvious.
Senator Mougan. — I suppose we are dealing also with the question
of the ijreservation and protection of the seal race.
Mr. KoBiNSON. — Unquestionably. But against what are you protect-
ing it?
Senator Morgan. — Against all animals which have power to destroy.
Mr. KoBiNSON. — And not as against people who exercise riglits waste-
fully and excessively or unreasonably? Why are they to d(^ so?
Senator Morgan. — Upon that, if you ask me the question, I would
suggest this.
Mr. Kobinson. — I am not asking the question in that view sir.
Senator Morgan. — I would suggest that the right of fur sealing or
any other rights on the ocean, are in the nature of easements ratlier
than in the nature of qualities and rights.
Mr. Kobinson. — Just the same it is an easement on the Island with
reference to the seal — nothing more and nothing less.
Senator Morgan. — Hardly, when according to the doctrine of ra^/owe
soli in the law of your country and mine, a man may be the owner of
proi)erty that is found upon it.
Mr. Kobinson. — Ko, with great deference, not. You can take the
property, but you are not the owner. You have an easement which
consists in the right to take it first before anybody else; but I am not
going back into that question of property.
The President. — I think we have heard plenty about it.
Mr. Kobinson. — I think so, sir.
Senator Morgan. — So do I, but I always supposed the rights ratione
soli to be positive rights.
Mr. Robinson. — Tbey are subject sometimes.
Senator Morgan. — They are subject to being modified, but the condi-
tion subject to which the title exists is a positive right.
Mr. Robinson. — A very positive right or easement, if you can take
as many seals as you can get, and own them when you get them.
Senator Morgan. — As much as a tree on a man's land is an easement.
Mr. Robinson. — You understand, Mr. Senator, that I am not respon-
sible for the law. If I am told it is not the law I have nothing now to
say. If it is the law, I did not make it; and beyond all doubt it is
the law.
Senator Morgan. — I was merely referring to the general character of
the rights and privileges of sovereigns equally and their subjects and
citizens upon the high seas in respect of some of the privileges of the
high seas, that they may be classed as easements.
Mr. Robinson. — I do not care what they are classed as — we have a
right to them.
I am arguing upon the assumption that you have given us a right to
them. If you have not there is an end to it. This argument proceeds
entirely upon the hypothesis that pelagic sealing is the exercise of a
lawful right — ;iust as lawful and as much a right as the right of the
owners of the Islands to kill the seals on the islands.
Senator Morgan. — It is only a different question so far as it extends.
Mr. Robinson. — As far as it extends, and it extends as far as we know
without limitation. If it is a lawful right there is no limit to it.
ORAL ARGUMENT OF CHRISTOPHER ROBINSON, Q. C. 317
Senator Morgan. — That does not follow,
Mr. Robinson. — It follows, with great deference, if the right be lawful.
Senator Morgan. — A lawful right of pasturage does not imply that
a man owns the land upon which cattle graze.
Mr. Robinson. — Nobody says he owns the land. I am talking of the
right to catch — of a certain right on the high seas which we are entitled
to assert. The one is an easement as much as the other. I do not desire
to spend time in trying to answer suggestions that you make in that
respect, because the argument has been so exhausted that I think it
cannot be added to, except by mj- saying this — that the argument is
proceeding now on the assumi)tion of the exercise of pelagic sealing as
the exercise of a lawful right.
Senator Morgan. — If you will allow me. I am merely suggesting
on my part that the exercise of it as a lawful riglit is not an unlimited
right, the exercise of it is according to the safety of any country or
people — it must be restrained according to the rights and interests of
other people in other situations.
Mr. Robinson. — I will only say I know of no law or principle of any
sort which affirms that. I can say nothing more. If I am told the
law must be so, I can only say I have examined the law to the best of
my ability, and I do not find any such law anywhere. I am not able
to say that I have seen anywhere any law which restricts the right of
those to whom the high sea is open, in the exercise of their rights there
just as they think proper.
Senator Morgan. — Then, of course, you are going back to the same
position which has been taken several times in this case, of the right
of the pelagic hunter to put a cord round the Pribilof Islands, and
destroy the seals as they come and go across the three mile limit.
Mr. Robinson. — I have referred to that before. I remember your
asking me some question before about it. I say you can find no law
to check or prevent it. It could be stopped by convention, but it is
impossible to find any laAv which prevents it. The present argument
proceeds on the assumption that we have rights that we are entitled to,
and the question of regulations is in connection with that assumption.
I am not going back to argue over again whether we have rights — the
rights will be defined by your Award. We must proceed in this argu-
ment on regulations on the assumption that the rights which they have
claimed are held not to exist, and that pelagic sealing is held to be a
right, which it always was, from the beginning. If so it is impossible
that it can be put down or abolished wholly in favor of another right,
and wholly in favor of an unreasonable, or excessive, exercise of that
right — if it could be so, as I have said, and as is absolutely clear, there
is only one regulation which could be made; and our friends in that
are logical. Instead of assisting us to make regulations, they have
taken precisely that position.
Lord Hannen. — Is it not a summary of your argument to say that
under a power of regulation you cannot prohibit?
Mr. Robinson. — Certainly.
Lord Hannen. — I ventured to suggest that that was a summary of
your argument.
Mr. Robinson. — It is a summary of my argument. Your Lordship
is perfectly right. It is another way, so to sjieak, of i;)utting the argu-
nuMit. If we are to proceed to that, it is impossible under a power to
regulate the pursuit of a certain industry to regulate it out of existence.
Mr. Justice Harlan. — You must regulate so as to preserve must not
you?
318 ORAL ARGUMENT OF CHRISTOPHER ROBINSON, Q. C.
Mr. Robinson. — Yon must regulate so as to preserve the seal race.
Senator Morgan. — Regulate to any extent, if you eveu do not pro-
hibit?
Mr. Robinson. — I venture to say, and there are plenty of cases of
this sort, you may not, under colour of regulation, prohibit. You may
not pretend to regulate, and under the form of regulation prohibit.
Senator ^Morgan. — Possil)ly under colour of a right of pelagic sealing
you cannot destroy.
Mr. Robinson. — In other words, you cannot use any right or any
power for a different pnrpose to that for which it was given.
A power of regulation liere does not include power to proliibit either
directly or indirectly. In other words, as the cases put it, it is an
abuse of the power, under the name of "regulation", to prescribe
what is an effectual proliibition. I will state a very fjimiliar instance
of that kind of case within my own knowledge. A municipal Corpo-
ration or authority having power to determine the number of taverns
which should exist in a certain municipality, and having hap])ened to
be composed of men who desired to put down taverns altogetlier. said
there should be only one tavern in that place, and that it should be
situated at the northeast corner, I thiidi it was, of the whole munici-
pality— practically saying there should be none. The Court said that
was not a proper exercise of the power; that it was given to them to
prescribe in reason the number of taverns that should be allowed, not
under color of allowing one to say there should be none.
Our courts are full of cases of that kind. It is only an elementary
proposition, that you must use a power not only in form but in substance
for the purpose for which it was given.
Then I proceed to the character of the regulations; and I have a few
words to say upon that, which to my mind, is practically the most
important question of all. We Lave now especially to bear in mind
always that we are discussing regulations as between people having
equal rights. I venture to say that you must go a little farther. It
may be difficult for my learned friends to admit us to this position now,
having called us criminals and pirates and everything else throughout
the case, to find that, instead of being criminals and pirates, we are
pursuing a legal occupation, and practically that they are in partner-
ship with us in that occupation; but we have to take that view of it.
If we have equal rights, I venture to ask the Tribunal, in all reason, to
attribute to us the possession of equal sense. I say that we are fair in
the propositions that we propose; and I do not put it upon any high
ground, that we desire to be fair, or that our motives are fair. I simply
say it is to our interest to be fair.
We have a large capital invested in this business. The men who
have invested that capital are intelligent men. It is no object to us to
destroy the seal race. It would be just as much against our interest
to destroy these seals as it would be against the inteiest of the other
people who have an interest in them. We do not want to do it, not
that we profess to be either better or more pure than other pe()i)le, or
to have higher motives than other peoi)le. It is simply the ordinary
business motive which impels every business man not to destroy that
out of which he makes his living.
Therefore the regulations which we propose are such regulations as
would preserve the seal race, in our interest as well as in theirs, and
^vhich must preserve the seal race, or else they are no use to us any
more than they are of use to them, i only mention that because
throughout this case, from the beginning — not contined to the question
ORAL ARGUMENT OF CHRISTOPHER ROBINSON, Q. C. 319
of property rigiits alone, but all the way through the case — my learned
friends have attributed to us a desire to exterminate this race, a desire,
as they say, to prev'ent them from conferring on mankind the blessings
of sealskins. IJcally, now tliat we have a share in this property, it
would seem to be useless to discuss it on that ground.
The people who are interested in reality in this industry are the
people who are making their living out of it, and the people whose
capital is invested in it. The world i)ractically neither care anything
about it, nor have any practical interest in it. If to-morrow, for instance,
those pearl fisheries of Ceylon, that we ha\e heard so much about, were
to be destroyed, I should sympathise very much with the i)eople, if
there is a large number of them, or whether the number be large or
small, who have made their living out of it; but as to talking about the
blessings of pearls to mankind, and sympathising with those people
who have to mix their diamonds with pearls or to wear their diamonds
alone without pearls, or do without pearls, tlie thing is absolutely absurd.
Whatever evils may be in store for the human race in the future, the
scarcity of sealskins is about the most extraordinary and fantastic fear
for the mind of anybody to be directed to.
We are discussing this (piestion then simply as persons jointly inter-
ested in an industry, which we both wish to have protected, or rather,
the foundation of which we both wish to have protected, by reasonable
regulations.
The first difficulty which strikes one in that asi)ect — at all events,
which strikes me — is that tuiiiing again to the treaty, and turning to
the knowledge which we have, and the ordy knowledge which we are
])ermitted to have, on the subject, I question very much whether the
Tribunal is in the position which tliey were intended by the Treaty to
be in. If you look at Article 7, it is said that they are to determine
what regulations are to be made, " and to aid them in that determina-
tion, the report of a Joint Commission, to be appointed by the Respec-
tive Governments, shall be laid before them." Let me ask the members
of this Tribunal, have you got the aid that the Treaty provides? You
have got a joint comnussion which tells you nothing. You have got
two separate commissions which contradict each other, and differ from
each other in almost every essential particular.
Is that an exaggeration of tlie truth? I quite understand what was
intended and wliat was ex])ected by both powers. It was expected,
though expected without any reasonable ground, and expected in our
joint ignorance of the whole subject, that when we each sent up scien-
tific commissioners to investigate and report upon this subject, there
would be found no difference as to their views of seal life; but as a
matter of fact we find these gentlemen going up, and I will assume now,
notwithstandhig all my learned friends have said, desiring to ascertaiu
the truth. We find them conung back, differing about the most essen-
tial particulars; and these two re[)orts, so different, are now handed to
this Tribunal under the Treaty as what they were intended to have to
aid them in determining the regulations. Have you got the aid the
Treaty provides for! The bearing of that is simply this: that it leads
one to consider morie carefully what regulations, under the present state
of things, and with the knowledge now existing, is it reasonable and
right or desirable to make; and that is a question which is not in the
interest of either one side or the other exclusively. It is a question to
be decided in the interest of both sides.
Lot us see for a nionuMit, in that view, what are really the fiu'ts as to
which there is a difference of oi)inion or as to which very little indeed is
320 ORAL ARGUMENT OF CHRISTOPHER ROBINSON, Q. C.
known, because there are several sucli facts, and very material facts.
In the first place, let me ask, what would you desire to know in order
to enable you to decide what regulations are reasonable? We have not
the least idea at this moment, with anything approaching to certainty,
what is certainly one very essential condition : How far do the females
go for food, or do they go for food at all? We are told by the United
iStates Commissioners as a matter of positive opinion, that they go long
distances. 1 think some people say they go 100 or 150 miles. Those
who ought to know best, as the result of long examination, say that
they think protection for 30 miles would be sufficient. Is there any
sufficient knowledge then upon that subject?
Have we any knowledge whatever as to the age of these animals, to
what age they live, either male or female? We are absolutely without
any knowledge whatever. Have we any knowledge as to how long the
females live, or how long they continue to breed? Absolutely none
whatever. On tliose subjects we are in utter ignorance, — just the same
ignorance as we were in before these Commissioners went up.
Then as to the date of weaning. We do not know that or how long,
in other words, the jjups are dependent u])on their mother, which is a
very material thing. They differ about that. I^^ot only they differ, but
the evidence which they are trying to come to a conclusion upon differs.
It is impossible to say. It has got to be ascertained by some years of
careful observation.
Then how long do these bulls remain on the rookeries? ^N"© human
being knows. Tliat is a most essential, perhajis the most essential,
thing to ascertain with regard to any regulations of the killing. Then,
when does the female resume her feeding? All that we know nothing
about.
Now, those are perhaps the most essential facts which require to be
known, in order to enable anyone to decide what conditions are reason-
able. If we have not those facts then we have to consider what sort of
conditions it is safe to make without knowing more
Is it safe to make anything in the shape of permanent regulations, or
is it desirable to attach any sort of conditions to the regulations wliich
you make? It has been doubted whether — I cannot say doubted, for I
do not know; at all events the question has been asked — you have a
right matter to make regulations with the condition attached that
either side at a certain time may denounce them? I venture to sug-
gest that that can hardly admit of doubt. I cannot imagine that it
was intended that you should make regulations here lasting for all
time, when they might turn out next year to be radically wrong.
Added to that, they are regulations which, in the very nature of
things, must require from time to time, almost certainly, revision and
modification. Was it intended that you should make regulations of
a kind suitable or unsuitable, which within two or three years may
fail to answer the purpose, or which may be totally inefficient? The
only answer I have heard suggested to that is that this is to be accepted
as a final settlement of the matter. That, though I may perhaps have
taken too much the view of a lawyer in that resjiect, never occurred to
me as meaning more than that this must be a final settlement in the
sense that nobody has a right to appeal against it, or to re-open the
matter; but whatever you choose to make as your settlement, whatever
regulations you choose to prescribe, that is tiual in this case, and both
parties are to accept it. But if you choose to say, We will make no
regulations, or if you choose to say, " We will make regulations which
shall extend for one year or ten years," or anything else, that is a final
ORAL ASGUMENT OF CHRISTOPHER ROBINSON, Q. C. 321
settlement; that is to say, it is final in the sense that it is irrevocable,
and both parties are bound by it.
The President. — We cannot say that we could make no regulations,
if we act under the conditions provided ibr in Article VII.
Mr. KoBiNSON. — I did not mean that, Mr. President. I mean if the
circumstances are such that you conceive it to be your duty to say that
no regulations are wanted, that would be a performance of your power
under the treaty. I was not referring to the special facts, or saying
that you ought not to make regulations. That is not what I was think-
ing of. I was saying that if in your judgment you should say no regu-
lations are wanted, that would be final. If you make regulations for a
year or ten years, that is final. That is to say, neither side has a right
to appeal against it, or to re-open the question so long as that deci-
sion lasts.
Then in that point of view, what is the principle upon which these
regulations should be made? I venture to submit that there is but
one principle that can be adopted. You cannot make regulations
which will have any invariable and certain effect upon both or either
of these industries unless you subordinate one altogether to the other.
There is no priority between these industries. Nobody can point to a
law which says that our industry shall be prior to theirs or that their
industry shall be prior to ours. In other words, both sides have a
right, so far as law is concerned, to exercise their rights as they may
think proper. We have no power to i)reventthem from exterminating
the seals on the seal islands. You have no power to prevent them.
There is no right to say — when I am speaking of right, I mean no
equity of any kind — to say that our right, which has just been given
to us, shall be abolished in favor of land killing.
1 venture to suggest again that the statement of that carries with it
its own absurdity on its face. Is it to be supposed that they are to be
better oft" without property than with property"? Is it to be supposed
that this Tribunal is to say to the United States in one sentence, "All
these rights which you have claimed we deny to you, they do not exist;
but we give you back all these rights and more too under the name of
regulations"? Is it possible that that could have been contemplated?
Or that they are to say to Great Britain, " You may go and seal as you
please; you may exercise your right, which we say is your lawful right,
to catch seals in the open sea"; and in the next sentence, "You must
never do it". Is that a sensible arrangement or a sensible award to
ask from any Tribunal? Is it possible that this is to be the result of
what these two sides, these two nations, have been contesting about
under the name of rights for the last three months?
How can it be a matter of vital importance to each of them, to deny
and succeed in the denial of, or to assert and succeed in the assertion
of certain rights, when as a matter of fact it is utterly indifterent
whether the party claiming the rights has them or not, for he is per-
haps worse off if he gets the rights than if he did not get them.
In answer to all these questions we say that the United States have
no right. With regard to the seventh question, we say they cannot be
better oft" than if they had no rights at all in.
Tbe President. — You mean the right by award? You are able to
give it by convention or agreement or regulation.
Mr. Robinson. — Oh, no doubt. I am not speaking of power. I am
speaking of feirness. But is it sensible to say to Great Britain, " We
award you all tliese rights, and then take them from you; and we not
only take them from you, but order you to assist the United States in
B s, pt XIV 21
322 ORAL ARGUMENT OF CHRISTOPHER ROBINSON, Q. C.
preventing your subjects from exercising them". Is it possible tliat
tbat can be a reasonable result of such a submission as the present?
There must surely be some diflerence in the rights and regulations
which are proper with property and whicli are proper without pr<)i)erty.
And upon what principle — because I am not now talking about power —
upon what princi])le do you take away from a nation lawful rights
which you have by your award decided to exist, except upon the prin-
ciple that they cannot possibly be exercised without exterminating the
senl race.
The President. — How many of the people are there on the English
side who have an interest in the sealing besides the sealers — the fur-
riers, for instance.
Mr. KoBiNSON. — Oh none worth speaking of in the sense of money.
That extends to this: The people who have an interest in the sealing
besides the sealers are the Indians, who get to the extent of $30,000 a
year. That is the whole story. We speak for the Indians as well as
for the English interest.
I may not know exaetly what the learned President meant. Did you
mean citizens of the United States or citizens of England?
The President. — I mean people in England.
Mr. Robinson. — Furriers?
The President. — The furriers; yes. You speak for them quite as
well as for the Canadian sealers?
Mr. EOBiNSON. — Oh, certainly ; we speak for them also.
The President. — I say that must be a cause for the interest that
England takes in the preservation of seal life.
Mr. Robinson. — Oh yes; I suppose she has an interest in the pres-
ervation of seal life on that account.
Senator Morgan. — What interest could England have in the preser-
vation of seal life if her interests were only those of Canada?
Mr. Robinson. — Canadian interests are English interests. How can
any body say the interest of Canada is not the interest of England?
Senator Morgan. — I do not mean that. The interest of Canada
seems to be to take the seals.
Mr. Robinson. — To preserve them also.
Senator Morgan. — And the interest of the English seems to be to
preserve them for the purpose of maintaining a trafi&c and industry
that is based upon the seals.
Mr. Robinson. — With great deference, Mr. Senator, the interest of
Canada is precisely the same. The interest of Canada is to keep up
this industry which we have founded, and to preserve the fur-seals for
the purpose of kee^nng up the industry. We have no wish to destroy
the race. Why should we? But if you speak of the interest of any
one else in England all that can be said is that England is here repre-
senting their interest; and that those furriers, almost to a man, have
put themselves upon record under oath as saying that they do not wish
pelagic sealing put down, that in their judgment it would be detri-
mental to their interest to have it put down, for reasons which are per-
fectly sensible and sound.
The President. — We are led to understand certainly that both par-
ties, both England and the United States, have evinced their wish of
preserving the race, whatever may be the motives and whatever may
be the particular interests which are the reason of this submission of
the treaty.
Mr. Robinson. — That is perfectly true, by proper regulations.
ORAL ARGUMENT OF CHRISTOPHER ROBINSON, Q. C. 323
The President. — We certainly take it for granted tliat both parties
are here in good faith, and earnestly desire the preservation of the fur-
seal race.
Mr. EoBiNSON. — Certainly.
Lord Hannen. — But the argument on your side has been that the
killing on the islands is excessive.
Mr. Robinson. — Yes.
Lord Hannen. — And if excessive that it tends to the destruction of
the race.
Mr. Robinson. — Yes, my Lord.
Lord Hannen. — Now we are called upon to make regulations which
are necessary for its preservation.
Mr. Robinson. — Yes.
Lord Hannen. — How is it possible to do that upon the hypothesis
that the killing on the islands is excessive! We are asked an impossi-
ble thing.
Mr. Robinson. — There is no question about that.
Lord Hannen. — On that hypothesis, of course.
Mr. Robinson. — On that hypothesis. There is no possible means of
carrying out your duties without taking into consideration the manage-
ment of the islands. The thing is absolutely impossi]>le.
The Peesident. — I think you have got a very bad opinion of the
mandnte that has been given to us.
Mr. Robinson. — I have, with great deference. What I mean is that
1 am perfectly satisfied, and I venture to say every member of the Tri-
bunal must agree with me in this, that there is but one way of making
reasonable and proper regulations. It is by a Tribunal which has power
to make regulations adapted to the varying circumstances of each year,
and subject to modification and rectification from year to year.
Mr. Justice Harlan. — Su]>pose it were true that pelagic sealing will
result inevitably in the destruction of the race. Do you doubt our
power then to prohibit it?
Mr. Robinson. — I think if it were absolutely true that with careful
management on the islands, and with proper exercise of their rights on
the islands, any, jielagic sealing to any extent would exterminate the
race, then you could not prohibit it, because you have not got the power
to prohibit.
Mr. Justice HARLAN.^Have we not the power to make such a regu-
lation as will preserve the species?
Mr. Robinson. — Prohibition is not a regulation.
Mr. Justice Harlan. — Is not pelagic sealing, under the hypothesis
that has been made, a destruction of the species?
Mr. Kobinson. — What hypothesis?
Mr. Justice Harlan. — The United States contend that pelagic seal-
ing will inevitably destroy the race. I do not say whether that is true
or not. But if that be true would you not call it a regulation for us to
prohibit pelagic sealing?
Mr. Robinson. — I should not most certainly. I say that with great
submission, of course. When you ask nie a question you understand I
merely give you my opinion.
Mr. Justice Harlan. — Oh yes; I understand that.
Lord Hannen. — There must be some amount of pelagic sealing which
would not destroy the race, and though it may be a difticult task, that
is what we are called upon to try, what amount of pelagic sealing will
not destroy the race.
324 ORAL ARGUMENT OF CHRISTOPHER ROBINSON, Q. C.
Mr. Robinson, — Just let me ask — because I do uot care to entertain
assumptious which seem to me to be absolutely unfounded — is there
any pretence in the evidence for saying that a reasonable exercise of
pelagic sealing is inconsistent with the in'eservaticm of the seal race?
Consistently with reasonable management on the islands, I say that it
seems out of the question, and on the evidence there is no pretence for
saying it.
The President. — It seems to be a question of measure. Even the
other side admit of a certain amount of i)elagic sealing to the Indians.
Mr. EoBiNSON. — Certainly, they say that; and further, if you recol-
lect, they say — I do not like to use the term nonsense before a Tribunal
of this description; but surely it is all absurdity to say that no degree
of pelagic sealing can go on consistently with the existence of the seal
herd, when, as a matter of fact, pelagic sealing has gone on from time
immemorial, and that it is only in the year 1886 that it began to do
harm to the seal race.
]\Ir. Justice Harlan. — How long has pelagic sealing gone on with
schooners and shot-guns?
^Ir. IJoBiNSON. — It has gone on since 1879, I believe. That is the
year I gave.
Just let us inquire about this matter for a moment, because one likes
to know when suggestions of this kind are made, and when the questicm
seems to be pushed to extremes. Killer whales have been extcrujinat-
ing these animals, to the best of their ability, male and female, young
and old, ever since they have existed. That is a thing that has to go
on. You are not to protect the seal race for the exclusive benefit of
the United States, or for anyone else.
The President. — If you could destroy the killer whales, nobody
would object.
Lord Hannen. — You would have no objection to regulating them,
even if regulation amounts to prohibition.
Mr. PoBiNSON. — I have no objection to regulating killer whales at
all. I may say here, that although the suggestion has been nuide to
the people on these islands that they should do something to protect
the seals against the assaults of these killer whales, and that it could
easily be done, they have nevei- done it.
I venture to say this with regard to these questions that have been
put, and the question as to what facts are unknowu: We hear a gieat
deal about surplus males. I have the strongest impression, without
proi)hesying, that some day or other it will be found that there is no
such thing in connection with this race as surplus males, proitcily
s])eaking. I mean if the race is to be perpetuated, it will be found t liat
there are no such things as surplus males. I say that when this thing
comes to be ascertained, it will be found that, as in the case of other
animals fern naturcv, these males in all probability do not last on the
rookeries for more than two or three years; that they correspond to all
other animals of the same class; and that the notion that these sexes
were produced by nature in equal proi)ortions simply to allow men to
kill oil" the surplus males, has no foundation whatever. I believe there
are no such things as surplus males consistent with the due preserva-
tion of the herd at its best, sinq)ly because it is a provision made by
nature for the selection of the best for the purpose, and the constant
selection of the best for the pur])ose, that can be obtained. Otherwise,
if nature did not intend that there should be a use for an equal number
of each sex, nature would not have i)rovided so. It is no use talking
about not tauq)ering with the law of nature. My learned friends'
ORAL ARGUxMENT OF CHRISTOPHER ROBINSON, Q. C. 325
wliole proceedings in the conduct of the business on the islands is a
tampering with the laws of nature. You can do it with domestic
animals, wlien you have the means of observing its effect constantly
and regulating its operation, but not with aninuils ferce natnrw. As a
matter of fact, I question whether there are such things as surplus
males either in the seal race, deer, or any other i^olygamous wild
animals.
I do not know how far it may be a test, but I think it may be a rea-
sonable test as affording something in the way of illustration. Sup-
posing the United States or England, I do not care which, owned the
country in which these islands were, as well as having the ordinary
rights of the sea; suppose a British subject or a United States citizeu
owned these islands, and suppose the country of which the owners were
subjects were called upon to make such regulations as they thought
reasonable with regard to the two rights, pelagic sealing and killing on
the islands. I submit it would not be thought reasonable to prohibit
l)elagic sealing, to take away the rights of one class in order to transfer
those rights to another class; but that they would endeavor to make
such regulations as would ensure the due and reasonable exercise of
both rights.
Then some question was spoken of with reference to numbers yester-
day. I do not believe you can regulate this upon the question of num-
bers, because you can name no number that is to be destroyed in each
year where the natural conditions may vary in each year. It may be
right to kill 10,000 this year, and wrong- to kill 5,000 next.
I have thought that the regulations proposed by our Commissioners
were most reasonable in principle. In other words they say, under nor-
mal conditions a zone of so many miles is enough; but there may come
an epidemic, or a great loss of seals by a storm, as has hapi>ened before,
and you may find it unreasonable to kill half the number that year that
you killed the year before. If so we will give you a double zone. In
principle that is correct.
Here we are with equal rights; one a right to exercise our right of
pelagic sealing; and you must first see what Regulations are necessary
to prevent pelagic sealing from killing an unreasonable number of
nursing-females, and when you have succeeded in doing that, the con-
sequence of our exercising that right in a reasonable manner must take
care of itself. You cannot provide for it otherwise. I am prepared to
face the consequences either way. If the consequences of our exercis-
ing that right in a reasonable manner are only to enable us to kill a
few, then we must kill a f w; but if the consequences are to enable us
to kill a good many, then we shall be able to kill a good many; and
that will vary from year to year depending upon circumstances. You
can only carry on pelagic sealing in calm weather, because the canoes
can only float in calm weather; and if you have a nmgh season, you
will have very little pelagic sealing, and we should kill very few. If
we have a calm season, we should be able to kill more. But those are
tilings that no human power can regulate. You can only attach to
the exercise of our rights reasonable conditions: and, when you have
done that, the effect upon other industries must take care of itself,
whether it is little or much. What I mean is, that I do not under-
stand how the consequences can affect the legality of other rights in
any way; but the conditions must be reasonable.
When you attach such conditions that our rights may be reasonably
exercised under those conditions, the consequence upon other indus-
326 ORAL ARGUMENT OF CHRISTOPHER ROBINSON, Q. C.
tries must take care of itself; and it is idle to say tliat you must kill
40,000, or 20,000, or 15,000 or 35,000, in oue year, or in proportion to
another industry, because you cannot do it.
The President. — Do you say the same for land killing as for sea
killing?
Mr. EoBiNSON. — Yes ; but it is a little more dififlcult, because from
the land the animals disappear for a portion of the year. I am glad
that the President has alluded to that, because my learned friends
attach importance to the fact that they can kill with discrimination,
and only kill the surplus males. But you could do the same with
regard to rabbits by spreading your nets, catching the rabbits, and
killing only the bucks. Just the same with regard to pheasants, killing
only cock-birds; but it has never entered into any-body's mind that
that would give special rights. Just the same with regard to salmon;
you can take them at the heads of rivers, and even mark them, or take
out and kill the male salmon. But nobody ever suggested that that
gives any exceptional or peculiar right, until it came to be argued here.
Then, Sir, there is only one more subject on which I desire to say a
very few words; and that is the interest of this particular portion of
the Empire in this subject; namely, the Province of British Columbia.
The interest of it to this Province is very, vital, serious and important.
It is a small Province, having a population, including Indians and
Chinese, coast and inland, of 97,000, or, at all even to, under 100,000.
It is a Province, as you all know probably, which came very lately into
the Dominion, I think in 1871, and which has only within the last few
years been connected with this outer world to the East by the Canadian
Pacific Eailway.
iSTow, in this industry, with this small population, of which there are
only 75,000 not living inland, we have employed a population of 1,083,
Whites and Indians, and have invested in it a capital of somewhere
about half a million of dollars, I think. We got last year, and I am
only taking that as an average, some 49,000 skins; and for them we got
some $600,000, for the i)rice was $12 a skin. I suppose that the 1,100
people interested in that industry probably represents a dependence on
it of 4,000 or 5,000, because they are, naturally, heads of families; and,
in that view, it is very important to us. But it is more vital and
important to us, I venture to submit, in this view; we are trying to
settle that outlying and distant Province with a population which must
be largely dependent for their living upon what they get from the deep
sea; and if any restriction is placed upon the freedom of the sea in that
part of the world which enables the idea to go abroad that the freedom
of the sea means one thing in British Columbia and another thing in
another jjart of the world, — that those pursuing their lawful occupation
are liable to be interfered with and hamjjered in the pursuit of their
industry in a way which they wouhl not be liable to elsewhere, it must
exercise a most deterrent effect upon the future of that Province; and
we feel strongly the importance of it in that way.
The President. — Does that apply to any restriction of a close
season ?
Mr. Robinson. — Do not misunderstand me. I will explain what I
mean; the inference I draw from that is this, and I believe it to be the
true test of what Regulations, as I submit with all deference, ought to
be made. Such Regulations only ought to be made as you would in
your wisdom say that we ought to have agreed to. If such Regulations
are made as we can explain to our people in our judgment, and the
judgment of reasonable men, should have been entered into by them,
ORAL ARGUMENT OF CHRISTOPHER ROBINSON, Q. C. 327
those Regulations will be assented to, and will cause no difficulty or
injury to the Province, because they will be Regulations it is to their
interest and to the interest of everybody else to see observed. But if
Regulations are imposed by which lawful industry is hampered or
interfered with, by which that part of the world differs from any other,
and by which they are put under disadvantages nobody else suffers
from, and restrictions that you cannot explain, except by saying that
you have given to another Power all the rights that would be the riglits
of our own citizens anywhere else, you cannot but do serious injury to
the welfare of that Province. For that reason we are supply interested
in this question.
My learned friends have attempted to separate the interests of Eng-
land from British Columbia. I venture to say the interest of one part
of the Empire is the interest of the whole, and if England asserts .that
it is her interest she is the Power to judge, and we have a right to ask,
as we do ask, from this Tribunal, with deference, that only such Regu-
lations shall be made and such restrictions imposed as in their judgnsent
are reasonable and consistent with the rights which upon the assumi)-
tion of rights at all they would have found us to possess. I thank the
Tribunal very much for the kindness with which they have listened
to me.
The President. — And we have to thank you, and were very pleased
to hear you again.
We will adjourn till the usual hour in the morning when we shall
expect to hear Mr. Phelps.
[The Tribunal thereux)on adjourned till Thursday, June 22nd at 11.30
a. m.]
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